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13 Mich. L. Rev. 302 (1914-1915)
Inefficiency of the American Jury

handle is hein.journals/mlr13 and id is 318 raw text is: THE INEFFICIENCY OF THE AMERICAN JURY. N OTHING else in Anglo Saxon law has ever made such an iappeal to the popular imagination as the common law jury. For centuries it has been the subject of the most extravagant pan- egyrics. It has been considered the bulwark of liberty, the safe- guard of life and property. Everything connected with it has en- joyed its share of praise. Even the number twelve has been serious- ly referred to'as evidence of its sacred character, for Lord CoYX says of the jury:- It seemeth to me that the law justly delighteth herself in the number of twelve jurors for the matter of fact, for is that number not much suggested in Holy Writ, as twelve apostles, twelve stones, twelve tribes, etc. But great as has been the reverence for the jury system in Eng- land, its native land, we in the United States have placed it on a still higher and more enduring pedestal, for by means of our con- stitutions, state and national, we have made it an inalienable herit- age of the people themselves. Perhaps it is a natural consequence of this almost superstitious reverence for the jury as an' institution, that its real function and true purposes have often been lost sight of. Excessive zeal for its protection has seriously interfered with its practical usefulness. It has tended to become a fetish, and has often needed nothing so much as to be saved from its -friends. What is proposed in the present article is to show that in attempt- ing to preserve the independence of the jury in its exclusive juris- diction over questions of fact, the people and the courts in most American jurisdictions have departed from the common law prac- tice and have introduced a principle calculated to undermine the very institution which they wish to strengthen. That is to say, through the rules prohibiting judges from commenting on the weight of the evidence, juries tend to become irresponsible, ver- dicts tend to become matters of chance, and the intricacy of pro- cedure, with its cost, delay and liability to error, has increased so much as to threaten popular respect for courts of justice. The distinguishing feature of the jury as it developed in England and as it came to us, was the restriction of its jurisdiction to ques- tions of fact. FoasYTr, in his careful examination of the origin of the English jury, presents very convincing evidence that such a jury was not known in Anglo-Saxon times and that it did not find its prototype in the early juries of the continent. For, as he points out, the Scandanavian, German and Anglo-Saxon analogues

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