The notion of a defendant being tried by a jury of his or her peers is a cornerstone of our legal system and has been for centuries. We see some signs of this kind of justice right back to Saxon times, and then more recognisably after the arrival of the Normans in the 11th Century.
Compared to some of the systems that went before it, it has a lot going for it. Take ‘trial by ordeal’ of which the Saxons were fond. This typically involved subjecting someone to some kind of pain and physical trauma and then seeing if God would demonstrate their innocence by healing their wounds quickly. An example is trial by hot water, from where we get the expression ‘to be in hot water’ for someone who is in trouble. During this process the accused would have to retrieve something like a stone from the bottom of a cauldron of boiling water. The depth of the water could depend on the severity of the crime, wrist-deep for something more minor, elbow-deep for a whopper. Sometimes it would take the accused up to an hour to get the stone. The burnt hand was examined for healing or infection after 3 days, and the accused was judged innocent or guilty depending on the result.
There was also ‘trial by combat’ whereby the accused could prove his innocence by defeating his accuser in a fight. This was actually legal in England until 1818 and was only repealed when it was invoked in a murder case in 1817. In this case Abraham Thornton was accused of murdering Mary Ashford but was acquitted. Mary’s brother then gathered more evidence and requested a re-trial but Thornton’s lawyers argued that he couldn’t be tried twice for the same crime unless it was by combat. Thornton accepted the terms, Mary’s brother did not, and so Thornton went free.
Clearly, trial by jury has a lot to recommend it above these other systems but it is interesting to note that, when the German legal system was reconstructed by the Allies after WWII, the Allies did not chose to introduce juries to the system. Juries aren’t used in Germany, instead cases are heard by panels of judges.
The major criticism of the system of juries is that the jurors are ordinary, untrained people, who are prey to eloquent and manipulative lawyers who might sway a jury as much by the strength of their performance as by the content of it. This is in contrast to a panel of judges who are trained to analyse evidence and understand nuanced arguments and may therefore arrive at a safer conclusion.
Without making any personal judgement on the outcomes of the recent litigation between Amber Heard and Johnny Depp, it is notable that the outcomes were different when the case in the UK was ruled on by a judge, and in the USA by a jury.
There is, of course, no perfect legal system. Getting to the truth is fraught with difficulty and complexity. But I suppose the strength of the jury system is that the jury hear the case in the social context in which they live. Perhaps this allows for more nuanced judgements than the cold and rigid application of the law that you might get if the system was exclusively presided over by lawyers.
The jury is such a fundamental part of our legal system that few really question its value but, if we started afresh, would we go down the route of juries again?