Tag Archives: 1066

SERIOUS THREATS TO OUR ANCIENT LEGAL SYSTEM

Ted Stevens

The 12-man jury system goes back to the twelfth century under King Henry II and was confirmed in the Magna Carta (1215).   It’s even possible it goes back further to Anglo-Saxon England, prior to the Norman invasion of 1066.

Nobody has ever suggested that it is a perfect system but it beats every alternative known to man. It must have been quite reassuring to hundreds of thousands of people down through the centuries to know that, when falsely accused, they had to be judged by “twelve of their peers.”

So we should all be concerned that the jury system is seriously threatened.

I first noticed this forty years ago in a former British colony in Africa.   The English Common Law was exported to British colonies, including the thirteen American colonies that eventually became the United States.

But the system, like democracy itself, may not be culturally exportable. The problem I noticed in Africa was that juries were greatly influenced by ethnicity. Put another way, if a member of a certain tribe was on trial, members of other tribes would automatically find him guilty without due consideration of the evidence.

This obvious prejudice kept us out of court in 1982 following a serious collision between our Land Rover and a bus. Passengers on the bus testified that the driver was drunk and dancing at the wheel at the time of the crash. But, we were advised that going to trial would be pointless as he was from the area where the accident took place. No jury from that area would convict him.

I don’t remember when it was but I do remember the time in England when it was decided that a jury could convict a murderer with a 10-2 vote, instead of the former 12. My immediate thought was why change a system that has served the country well for over eight centuries?

Grand juries go back to 1166. Again, Henry II was the monarch behind the idea.   A Grand Jury was not limited to 12 men. It could be as many as 23 men, hence the term “grand” as against a regular trial jury. Today, the US is one of the few countries that retain the grand jury system. It is used to determine whether or not a person should be sent for a trial, in effect to determine if anything criminal has taken place.

The grand jury that sat in Ferguson, Missouri, was composed of twelve people, three of them black. They sat for months hearing testimony from a number of people, including the accused police officer, Darren Wilson. Their determination was that there was no case to send Wilson to trial. Rioting erupted immediately and has continued sporadically since.   As in Africa, ethnicity could make it impossible to hold a trial.

Different people reading this will have differing views on the decision of the grand jury.   The concern I want to express is about the system itself.

If a grand jury or a trial jury cannot meet without taking into account the mob outside, then the jury system will fall apart. For centuries, respect for the jury system was such that when a decision was made, the public supported that decision, even if they did not agree with it. The system itself was highly respected.

If mob rule threatens the jury system, what will replace it?   Juries are composed of regular people selected at random.   Those countries that do not have a jury system use judges appointed by government with no jury. Is that what we want?

The prophet Isaiah wrote of a time in ancient Judah when there was no justice and seemingly no concept of it. We are in a similar time today. “No one calls for justice, Nor does any plead for truth.” (Isa 59:4) “The way of peace they have not known, And there is no justice in their ways. (v.8)”

I should add that Ferguson is not the only threat to our legal system.

Bill Cosby illustrates another problem. He has been accused of sexual assault by a number of different women. Without a trial, the media and the population at large seem to have found the man guilty, thereby effectively ending his career.

Both situations threaten our legal system. Is this really what we want?

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