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12 J. Am. Jud. Soc. 166 (1928-1929)
A Program for the Trial of Jury Trial

handle is hein.journals/judica12 and id is 168 raw text is: A Program for the Trial of Jury Trial By JOHN 1-I. WIGMORE 1. Plainly the time has arrived when Jury Trial is to become one of the issues in the general movement for revision of judicial institutions. Mr. H-arley's article in the Feb- ruary number of this JOURNAL has definitely given it a place on the calendar of the Amer- ican Judicature Society. How shall this issue be approached? Of course, the issue itself stands thus: Shall Jury Trial be abolished? Or shall it only be reformed? No thoughtful person can be content to leave it as it is. But the recent demands for its abolition have been marked by the two prime fallacies found at all periods in almost all iconoclastic attacks on an established institution. Either the attacker calls for abolition on grounds which are remediable and need only reform, not destruction. Or the attacker, in calling for abolition, on specified grounds, fails to prove that any substitute is demonstrably bet- ter, on those grounds or on any others. In the present issue, there is only one con- ceivable substitute for trial by jury, and that is trial by a bench of judges. Therefore the clearest way to deal with the problem is to phrase the issue thus: Would Jury Trial, if reformed as much as feasible, still be inferior to trial by judges? Thus the reasons on both sides must be meas- ured always by a comparative standard. There is, for our purposes, no intrinsic good- ness or badness in jury trial. We must have some kind of personnel for trying facts. Jury trial, then, is either better or worse than judge trial. Such is the issue. 2. The writer happens to be one who believes that jury trial, properly reformed, is on the whole superior to judge trial. But before surveying the specific defects alleged against jury trial, let the following fable convey the spirit of those who agree with the writer: The Fable of the Watch That Stopped A Man came to a Jeweler's Shop with a Watch, and said: I want one of those new Swiss Watches that I saw advertised. This is my old Watch, a Walginson Perfecto; I bought it for $500 in New York in 1914. But lately it has been going to Pieces. It runs down every Week or so. I cannot make it Go. It is a Failure. And I want a first- class Modern Watch, by that celebrated Swiss Firm. The Watchmaker took the Perfecto Watch in his I-land, opened it, screwed his Eye- Glass on, and scrutinized the Watch. Then he said, My Assistant will show you some of the new Swiss Watches; but will you excuse me for ten minutes, while you inspect them? He then retired to his Workshop. In less than Ten Minutes, the Watchmaker returned, with the Perfecto Watch, and said to its Owner: My friend, you have here already the finest Make of Watch ever pro- duced in America, and as fine a Type as any in the World. But it is in bad Condition, first because it lacks one or two recent Improvement Devices, and secondly, because you have treated it so badly. As to Improve- ment Devices, I have them here in my Shop and can insert them for vou at small Cost. As to bad treatment; in the first place, you have evidently dropped it in some Muid or Water, for two or three of the Pinions are rusted; and you have not had it cleaned since you bought it; and you must have let the Children open it and play with it at some time, for the Hour Hand is bent; and there are two or three minor features of l)amage, due to Rough Handling. But all of these items are remediable. Let me have the Watch for a Month, and I will guarantee to put it in Order as good as new. As to this Swiss Watch, he went on, I am ready to sell you one, of course. But my Advice to you is that it is not as good a Watch for your Purposes as this Perfecto. In the first place, the Swiss watch is made of European steel, which is not so composed as to stand the wide Temperature Variations in this country as well as American Steel; and in the next place, these Swiss Watches are hand made, and if anything should happen to break, there is no Spare-part System from which the broken Part could 'be readily replaced. The Man thanked the Watchmaker for his Advice, and said Put my American Watch in First-Class Order, and I will call for it in 30 Days. Jury trial and the American legal profes- sion are like the man with the watch. The fable is a pretty close parallel. 3. And so, to approach the issue in that spirit, let us enumerate and analyze the vari- ous alleged demerits of jury trial, according to whether they ate remediable or not reme- diable. And let us then analyze the merits of the revised jury trial as compared to judge trial. In the course of such enumeration we can better perceive the real points of differ- ence of opinion. In making up this tally of demerits, it will be enough to use, as the source of the numer- ois counts of the indictment, half a dozen recent articles which take a fairly broad sur- vey of the case, both pro and con. Nothing has ever been alleged against jury trial that

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