The Trial: A History from Socrates to O. J. Simpson

The diversity of German law meant that its procedures became particularly convoluted. The region’s princes notionally owed loyalty to a ruler whom they elected, and during the sixteenth century a law was enacted by Emperor Charles V that sought to minimize arbitrariness by establishing ground rules that would apply in every German state. The 1532 code, known as the Carolina, permitted each one to maintain its customary laws however, and it aimed only at ensuring that there were ‘legally sufficient’ grounds for torture – with the consequence that it spread inquisitorial lunacies as much as it suppressed them. It advised judges, for example, that torture was permissible if a suspect was ‘insolent and wanton’, or in possession of an item similar to something found at the crime scene. Inquisitors soon got the point, and began developing rules of their own. By the seventeenth century, an unnatural pallor was sufficient to justify torture for several crimes in Frankfurt-am-Main. Suspected adulterers were imperilled simply by being found in an attractive woman’s house – unless the culprit was a cleric, in which case he could be caught in a clinch and the court would presume that he had been ministering to her spiritual needs.

The code also advised inquisitors to seek confessions even where eyewitness testimony and circumstantial evidence were already overwhelming. Prisoners who withdrew admissions on the scaffold might therefore be rushed back to the rack, on the theory that a miscarriage of justice would otherwise ensue. And although the Carolina had been based on a Bamberg statute that pronounced it ‘better to acquit a guilty person than to condemn an innocent one to death’, at least some lawyers took a very different view. Fynes Moryson, an Englishman touring Europe in the late sixteenth century, reported that he had met several who justified deaths through torture with ‘a strange, yet good, saying…namely that it is better one innocent man should dye by triall, then many [guilty] persons should escape for want of [it]’.

It was in eighteenth-century France – a society in which many began to believe that human wisdom was not just improvable but perfectible – that the faith in reason reached its apogee. The spirit of the age was well expressed by the work of an influential jurist called Pierre François Muyart de Vouglans, whose textbooks portrayed French criminal procedure as an almost mathematically precise tool for the discovery of truth. Since crimes were effectively puzzles waiting to be solved, it was positively unjust to hold back when detaining a suspect. ‘The welfare of humanity demands that crime should not remain unpunished,’ he explained. ‘It is for that reason that, in the absence of other means of arriving at [a] complete proof, we are obliged to torture the body of the accused.’ That said, the absence of such proof was no bar to punishment. It had been established in 1670 that anyone who refused to confess was liable to any penalty short of death, and Muyart de Vouglans now explained why: anyone liable for torture was already more than ‘half-convicted’ and deserved a suitably proportioned punishment. If someone’s refusal to confess made a death sentence inappropriate, a judge might, for example, send him to the galleys for life instead. The flexibility of such a system, adjusting the penalty to fit the amount of evidence, represented for Muyart de Vouglans the acme of judicial sophistication. ‘By means of these augmentations and moderations of Penalties,’ he declared, ‘our Jurisprudence has reached a degree of perfection which distinguishes it among civilized Nations.’

Enlightenment rationalism did, however, have a more benign aspect. Previous assumptions about punishment and crime were called into question, and in an age when political philosophers were arguing for the first time that the exercise of power demanded public scrutiny, systematic criticism of the inquisitorial system also began to be heard. The greatest single impetus came in 1764, when an Italian called Cesare Beccaria published a powerful attack on the cruel, arbitrary, and brutal nature of European criminal justice – including a damning critique of the continental reliance on torture – that would define the terms of debate in Europe and America for decades.

Muyart de Vouglans was moved to publish a refutation, but many others were persuaded by Beccaria’s argument – among them, a judge called François Serpillon whose own textbook, published at Lyons three years later, contained another condemnation of torture – all the more persuasive because Serpillon had inflicted it. He reported that the custom in his hometown of Autun was to strip suspects, bind them to a table, and then question them for two hours while their legs were crushed between boards and slowly scalded with twelve pints of boiling oil. He had been present at interrogations twice – once only as a witness, but once (‘compelled’ by the evidence) as the torturer – and neither occasion had ended happily. The good news for the men being questioned was that both had been released following their refusals to confess. The bad news was that the legs of the first suspect had caught fire, necessitating amputation, while the second defendant had been so badly burned that the bones of his toes had had to be removed with pincers.

Another critic of the inquisitorial system, equally vociferous but considerably less compromised by its operation than Serpillon, was Voltaire, who campaigned against its inhumanity for a lifetime, but eloquently damned it with just a few lines in a 1766 commentary on Beccaria’s work. He reported that the inquisitors of Toulouse used not only half-proofs but also quarters and eighths, and came to their decisions by adding them up. A piece of hearsay amounted to a quarter-proof, while an even vaguer rumour might count for an eighth. The result was that eight doubts could constitute a perfect proof and send a man to his death.

Notwithstanding the pride of lawyers like Muyart de Vouglans, the entire edifice of inquisitorial procedure was already tottering by the time that Voltaire wrote his critique. Several European governments abolished torture during the late eighteenth century, and after 1780 even French courts permitted its use only to identify accomplices after conviction. The revolution that began at the Paris Bastille nine years later then saw the system collapse. Within two years, France’s trials had become public and adversarial, defendants had won guarantees against not just torture but oaths, and the power to investigate crimes was at last detached from the duty to judge them.

Enduring reform then came under Napoleon, who enacted a law code in 1808 that would be adopted across Europe and continues to underpin criminal justice systems on the continent today. Although judges can still conduct pre-trial investigations in secret, and dominate courts to an extent that echoes their former role, the malignity of the inquisition is now very much a thing of the past. Later chapters will show that the dangers of unaccountability and torture live on, but those risks are not the relics of any particular legal culture. Abolition of the inquisitorial system did, however, owe much to a very specific rival tradition. For the progressives who campaigned to bring it down modelled their proposals for reform on a criminal process that actually existed on the other side of the English Channel – the jury trial.

3 The Jury Trial (1)

He considered what he should say to win over the whole audience once and for all, or if that were not possible, at least to win over most of them for the time being.

FRANZ KAFKA, The Trial

Innocent III’s decision in 1215 to abandon ordeals threw England as much into the lurch as it did the rest of Christendom. For time out of mind, the country’s kings had been subcontracting criminal justice to the clergy, who had been happy to to scald and drown suspected sinners for a small fee. Many ordinary folk had even come to trust trials by fire and water, if only because the primary alternative, trial by combat, seemed suspiciously favourable to whichever litigant was able to afford the better weapons and champion. The country’s response to the abolition of ordeals would, however, be very different from that adopted on the continent.

Whereas continental rulers would turn to the techniques of the papal Inquisition and the rules of canonical law to fill the legal vacuum, the Church would never gain an equivalent degree of influence over royal justice in England. Its legal pretensions had already taken a heavy blow when knights loyal to Henry II had rid their king of turbulent Thomas Becket by braining him in Canterbury Cathedral in 1170. The assassination was followed by important concessions to clerical independence from a penitent Henry, and the English Church of the early thirteenth century was in no mood to rock the boat. While Catholicism’s legal traditions spawned across Europe, nurtured by the demands of its war on heresy, representatives of the English Church positively avoided their country’s royal courts. Clerics would long retain peculiar privileges: they were, for example, granted an automatic immunity from punishment if they read Psalm 51 of the Bible aloud from the dock, a provision that would mutate into ridiculousness over the years as convicts memorized the ‘neck verse’ and merciful judges treated them as monks. Bishops would, for another five centuries, retain the right to try religious crimes such as heresy and moral misdemeanours such as adultery. Canonical law would never get to supersede custom and statute, however. The irrationalities of England’s royal courts would come from sources other than the Good Book.

The authorities initially had little idea what should replace trial by ordeal. Royal judges customarily took the king’s justice to jails around the realm every few years, and their coaches had already left London for the provinces in late 1218, when a rather perplexed note from the guardians of 11-year-old Henry III caught up with them. Proof by fire and water was no longer an option, it reminded them, and they might want to deal with minor cases by exacting promises of good behaviour. Exile would often be appropriate for those suspected of slightly more serious crimes. But all that the note could tentatively suggest for offences of violence or dishonesty was imprisonment – and in an era when judges toured dungeons to empty them rather than fill them up, the proposal was a stopgap rather than a solution. And yet, the king’s advisors had nothing else to offer. ‘For the present,’ they concluded forlornly, ‘we must rely very much on your discretion to act wisely according to the special circumstances of each case.’

England’s judges would rise to the challenge. Their solution was seen for the first time at a trial in Westminster in 1220, when a self-confessed murderer called Alice snitched on five other accused men in the hope of saving her own skin. The charges could not be resolved by battle, because she was a woman, but those she named then agreed to submit ‘for good or ill’ to the judgment of twelve of their property-owning neighbours. Said neighbours promptly swore that one was a law-abiding man but that four were thieves, whereupon the unlucky quartet was hanged. By the following summer, when seven of the king’s judges set out on another circuit of England’s prisons, they had begun to use the new system regularly. Trial by twelve good men and true had been born.

The jury trial would generate countless myths over the following centuries, and those claiming to describe its origins have been among the most tenacious. Athens, Rome, and the Magna Carta – an abortive truce signed in 1215 between King John and rebellious barons – have all, in their time, been credited with inventing the institution. In fact, it owed nothing to any of them. Athenians had judged in groups of several hundred at a time, the mythological Oresteia notwithstanding, and their civilization was one of which few people in thirteenth-century England would even have heard. The Roman Republic had seen the establishment of courts known as the iudicia publica, at which wealthy officers and senators had judged certain offences, but the precedent had no impact at all on English law. The Magna Carta, for its part, asserted that monarchs had to obey their own laws, and used language that would later support arguments for speedy and fair trials, but although it acknowledged pre-existing methods of trial, it did not prescribe any new ones.

No innovation built on tradition has a single source, but some of the rituals from which Westminster’s judges were drawing in 1220 can be identified. England’s rulers had been assembling groups of sworn men to furnish them with information for several centuries, and a link between twelve men on oath and criminal justice had been seen as far back as AD 879, when King Alfred the Great signed a peace treaty with King Guthrum of Denmark. Their agreement, which partitioned England as the price for ending decades of Viking raids, established that a killer in either ruler’s realm could cleanse himself of blood-guilt by producing twelve sworn men (‘if he dares’). Quite where the idea of a dozen judges came from would always excite speculation, with later jurists crediting the Apostles, the tribes of Israel, and so on; but although that mystery remains obscure, it is very clear that in 1220 the number had become conventional. And only a short imaginative step would have been required to transform such compurgation rituals into the jury trial. Even in the early eleventh century, defendants in some cases had been required to choose co-swearers from an independent panel of locals rather than their friends, and the only change required was to turn that exception into the norm. Instead of being allowed to produce their own jurors, defendants would challenge those of their neighbours whom they did not trust to judge them fairly.

Just as there was institutional continuity, the extension of the jury’s role into the field of criminal justice was not a sudden leap from ritual to reason. A society that in 1215 had been committed to the belief that God healed blisters and zapped perjurers for love of justice did not in the space of five years decide that He had lost interest. The new system still relied squarely on the oath, and witnesses played no more than an occasional role in trials until well into the fifteenth century. The earliest jurors were the witnesses and their veredictum – or ‘spoken truth’ – was the only testimony required. God remained the guarantor of justice, and His wisdom was discovered by rituals that treated jurors as ciphers to be cracked rather than as agents of rational inquiry. They were deprived of food, drink, and fire while they deliberated, individually imprisoned if they held out against the majority for longer than a day and a night, and collectively carted from court to court if they swore a verdict that the judge considered perjurious. The crowning absurdity was that, at the same time that jurors were effectively robbed of a right to silence, defendants were formally prohibited from swearing to their innocence – for fear that the guilty among them would otherwise lose their souls.

No thirteenth-century thinker could have been entirely sure that fallible human beings were even capable of stepping into God’s shoes. The risk that a juror might break his oath would have been as keenly perceived as the hope that he would abide by it, while the few people who pondered such matters would have had little confidence in the ability of jurors to assess evidence. As elsewhere in Europe, the unseen deed, like the hidden motive, was widely perceived as a phenomenon beyond mortal ken, unknowable to all but God. England’s first legal writer, Henry Bracton, thus explained in the 1220s or 1230s that it made no sense for jurors to judge a poisoning – the quintessentially secret crime, always associated with sorcery in the pre-modern world – because ‘[they] can know nothing of the deed’. And whereas continental inquisitors would overcome such riddles by subjecting defendants to the rack and strappado, English law would require anyone suspected of particularly mysterious crimes to undergo trial by combat for at least another century.

To the limited extent that the new system did represent a move away from earlier superstitions, it seems to have inspired feelings ranging from trepidation to terror. At one of the first sets of trials, held in Gloucester in June 1221, almost half of the twenty-seven indicted defendants refused to enter a plea. Matilda, accused of murder, declined because she felt that too many people hated her. John explained that he had done far too much evil to want to put his fate in his neighbours’ hands. William, suspected of sheep stealing, backed out after seeing a jury send the defendants immediately ahead of him to the gallows. All the concerns sound eminently sensible, but rationality was certainly not the only force at work. For the judges were almost as unsure about their innovation as the defendants. They did not insist that anyone submit to it, and Matilda, John, and William – along with all the other holdouts – escaped execution. Two of the trio were immediately released.

The judges would soon overcome their compunctions, and by the time they reached Warwick, three months after the Gloucester debacle, they were putting their collective foot down. A murderer and a thief who refused to plead to a jury were unceremoniously hanged, and judges were soon requiring that defendants state – on their knees with right hand raised – that they consented to jury trial ‘for good or ill’. If they refused to do so they would be spread-eagled under stones or lead and given only bread and water until they submitted or died. The suspicions attaching to the novel system were nevertheless such that resistance was widespread for decades, and sporadic for far longer. As late as the mid eighteenth century there would be people who would refuse trial by jury, and England’s authorities retained the right to extract pleas using thumbscrews and millstones until 1772.

Not much is known about the trials that ensued over the next two centuries, but they were certainly very different from their modern counterparts. Although the law’s concern for the fate of defendants’ souls meant that an accused was denied the opportunity to give sworn testimony, few asserted a right to silence – for in the absence of any right to a lawyer, suspects who knew what was good for them argued for their lives. Their opponent was the accuser: prosecuting lawyers appeared only in major cases before the seventeenth century, and independent testimony was all but unheard of until the early 1500s. An English lawyer writing in the 1470s, Sir John Fortescue, found the very notion of witnesses downright sinister. In a lengthy explanation of how English trials were the best in the world, he explained that continental inquisitors not only used unpleasantly belly-bursting, tendon-snapping techniques of torture, but brought people to court to say what they knew. They could, he pointed out, be bribed to say anything. Far more sensible, he argued, to have a system under which no one was liable to conviction except on the sworn evidence of twelve unbiased men.

A gulf had begun to yawn between Europe’s two systems; and notwithstanding Fortescue’s pride, there is little doubt that the courts of the continent had the stronger credentials. Structured around Roman law and inspired by the belief that justice was a matter of clever men applying their minds to a case, they had both tradition and reason on their side. Those of England, on the other hand, rested on a hotchpotch of superstition. Reliance on the ability of unlettered jurors to administer justice was, quite literally, a relic of barbarism.

And yet, for all its irrationality, England was already producing a method of trial considerably more benign. The notion that some matters were simply unknowable was helping to restrain the temptation to torture: against the bloody record of continental Europe, kings and royal officials would issue no more than eighty-one torture warrants over the entire course of England’s history. English judges were also in a better position – at least potentially – to appreciate human frailty. Denied the right to seek the truth through force and required to sit alongside ordinary jurors, they could say, as Chief Justice Brian did in the late 1400s, that, ‘The thought of man shall not be tried, for the devil himself knoweth not the thought of man.’ And whereas continental justice was becoming a secret process, controlled by adepts who kept a lid on its mysteries until the moment of judgment, English trials were already virtually defined by their openness. The need to assemble jurors made it impossible to exclude the public, and although sheriffs and jailers would extort admission fees until the 1700s, large crowds invariably entered in their wake.

The characteristics of English courtrooms were, like all customs, as accidental as they were determined. They would, however, collectively define a notion of justice that would be of lasting significance – in England first, and then far beyond. And the most important accident of all was publicity, which would now turn the trial from an oath-taking ritual into a dynamic contest of fundamental political and social significance.

The background to the transformation was the crisis that tore England apart in the aftermath of Henry VIII’s break from the Roman Church in the 1530s. Henry, anxious to secure spiritual approval for sexual relations with Anne Boleyn, spent the late 1520s unsuccessfully lobbying the pope for a divorce, eventually growing so irritable that in 1534 he established his own national Church. It was enough, very temporarily, to resolve his marital difficulties, but it also marked the beginning of a very troubled era in English history. Over the next decade, Henry beheaded and divorced his way through another three marriages, decimating English Catholicism in the process. As traditional bonds of religious and national fidelity snapped, his government sidelined regular legal procedures in favour of the rudiments of a police state. Tribunals such as the Privy Council and Star Chamber assumed the power to punish without trial, and the torture chamber of the Tower of London was replenished and used to a greater extent than ever before. Henry simultaneously redefined treason to force his subjects to recognize his new authority or make their opposition apparent. The crime had never been the most tightly defined of offences – capable of penalizing acts ranging from fornication with the royal consort to forgery of a sixpence – but remaining outside its parameters now became an almost acrobatic act. The laws that attempted to keep up with Henry’s marital shenanigans are a case in point. The 1534 Act of Succession suddenly rendered it treacherous to deny the legitimacy of Elizabeth, his daughter by Anne Boleyn, or to assert that of his firstborn Mary. Two years later, another statute granted free pardon to anyone who had asserted the whoredom of Anne or the bastardy of her child. In 1543, with Henry planning an invasion of France, fears of familial oblivion generated a final burst of paternal pride, and he pronounced that anyone who refused to confirm the birthright of either daughter would be hanged, drawn, and quartered.

The oscillations only intensified after Henry’s death in 1547. Edward VI had barely hit puberty when he himself died, aged 15, in 1553, and Mary Tudor then threw the ship of state into reverse by restoring English Catholicism and burning some three hundred Protestants to prove it. Her half-sister, Elizabeth, gave the wheel another turn in 1558. Although conciliatory by temperament, she restored Protestantism as the national religion and soon found herself caught between a regrouping papacy, ambitious monarchs in Spain and France, and a realm on the verge of civil war. In pursuit of peace she flirted politically and socially with almost every eligible Catholic on the continent, but her legitimacy, in every sense, depended on the men of Rome – and they were not to be charmed. Pius V excommunicated her in 1570. Ten years later, Gregory XIII’s Secretary of State let it be known that an assassin could expect not just forgiveness from God, but positive gratitude.

In reaction to the papal fatwas, Elizabeth’s government mounted an increasingly ferocious assault on the Catholic enemy within. The authoritarian machinery that had taken shape under her father swung into action against religious insurgents real and imagined, while an equally threatening surge of ordinary crime inspired the construction in 1571 of a triple-beamed gallows that would soon become a byword for legal cruelty in England – Tyburn. By the 1590s a visiting Duke of Wirtemberg was able to count more than thirty grinning heads as he strolled across the towers and twenty arches of old London Bridge. Punishments did not just increase in number. Since the reign of Henry VIII, their variety had also been propagating,* and they now flowered into a pattern of dizzying complexity. Minor criminals might be dunked or made to wear a placard carrying the name of their crime. Felons often had the initials of their offence inscribed in their flesh, while those who devalued the royal coin were made to pay with the loss of their ears and nostrils. The symbolic amputation once imposed on libellous printers by Mary Tudor was also revived – claiming, among its first victims, the appropriately named John Stubbes, who exuberantly raised his hat and yelled ‘God save the Queen’ as a mallet was hammered through his right wrist. One case from 1594 can stand as memorial to all the thousands of other butcheries. It concerned five men convicted of a string of felonies ranging from counterfeiting to blackmail: four were sentenced to ‘stand on the pillory and lose their ears if they have any’ before being branded on the forehead with the letter ‘F’. Elizabeth’s most trusted judge, Lord Burghley, complained that such burns healed too quickly and proposed to ten of his fellow Privy Councillors that the Fs should instead be carved into the convicts’ cheeks and have coloured powder rubbed into them. It seems, thankfully, to have been a proposal too far. According to the lawyer who reported the case, ‘the others made no reply to this’.