Robert P. Burns


On his book The Death of the American Trial

Cover Interview of May 31, 2009

A close-up

The second chapter of the book provides a broad historical account of the importance of the Anglo-American trial and the fierceness with which the Founding Fathers defended it.  The story begins in England, where “the English jury is as old as the English state itself.”  The early jury exercised enormous “law-finding” powers in an atmosphere where “true law” and “right reason” were thought to be largely congruent.  In the seventeenth century, the English jury proved to be the staunchest defender of English liberties against the encroachment of the King.  On the other hand, the practical reality of English criminal trials thereafter showed them often cruel, grim, and often unfair.  English civil cases were strangled by layers of hypertechnical rules and procedures. 

Reform eventually came to England.  But the American trial had been, even in colonial times, much more self-consciously democratic, less distorted by the English class system and its aristocratic bench and bar.  Americans interpreted their inherited “rights of Englishmen” according to the shared morality of ordinary citizens gathered in juries to decide criminal and civil cases.  Legal formalities were less constraining.  Right to counsel was more universally available.

In the political conflicts with George III, the American jury became “a symbol of the colonists’ struggle for self-government.”  After independence and the ratification of the Constitution, the jury trial became “the paradigmatic image underlying the Bill of Rights” featured in three separate Amendments (the Fifth, Sixth, and Seventh).  Jefferson pronounced famously, “Were I called upon to decide whether the people had best be omitted in the Legislature or the Judicial department, I would say it is better to leave them out of the Legislative.”

These views retained vitality well into the nineteenth century, though important social and political changes manifested themselves in important changes in the details of trial procedure.  Democratic “true law” was yielding to the “law of rules,” though never completely.  By the third decade of the twentieth century a new balance had been struck that gave us the trial as we know it, one brilliantly adapted to our contemporary needs.