The Jury: Part 1
Most of my career as a prosecutor, judge, and now an attorney in private practice has one common thread woven throughout working with juries. Sometimes thrilling, sometimes frustrating but always fascinating, the ways that juries hear the evidence, consider the law and make their decisions never lose my interest.
Recently, I was asked on a radio interview “Why do juries have twelve members?”
My initial urge was to say, “Not all do.” And go into a description of how in Ohio civil and misdemeanor juries have eight members and grand juries have nine. But I resisted the urge to give the pedantic answer because to most of us, a jury means a serious criminal charge in which the accused is facing years in prison or loss of life.
The criminal jury for serious offenses is what I was asked about. The answer I gave was that such a jury has always had twelve members. But the answer was not satisfactory. So, I went to my source of all things about the history of the jury in Ohio: “The Jury- Tool of Kings, Palladium of Liberty,” by Lloyd E. Moore, © Anderson Publishing Co. 1998. I am not sure if it still in print, but for Ohio legal history nerds, it is invaluable.
The answer to the beginnings of the twelve-person jury begins with a play.
And not To Kill a Mockingbird or Twelve Angry Men. But a much older play.
The Greek playwright Aeschylus in his play Eumenides tells the story of a tragic homecoming from the Trojan War. Greek commander Agamemnon returned home victorious in war, but unlucky in love. While gone, his wife Clytemnestra had fallen in love with another and, since the divorce was not an option, she murdered her husband.
Her children did not take kindly to the murder of their father, so her son Orestes killed his mother and her lover.
And if this sounds a bit like a modern soap opera, we have nothing in our culture that rivals the ancient Greeks for stories with twists, turns, and surprise endings.
Matricide (murdering your mother) being frowned on in Greece, Orestes fled to Athens to seek refuge. The goddess of the city, Pallas Athena called twelve citizens of Athens to serve as a jury to try Orestes.
The trial featured three Furies (the Eumenides) leading the prosecution and the god Apollo testifying for the defense. The trial ended and the jury was deadlocked: six for conviction, six for acquittal. A simple majority was required for a verdict. History’s first jury trial may well have ended in a “hung jury” (a jury that is unable to come to a decision) had it not been for Pallas Athena herself intervening and, figuring that mercy is the better part of justice, voted to find Orestes not guilty.
And there you have it, as could have been written as a script for a modern television show, one of the oldest stories we have of criminal justice is a story about a twelve-person jury.
But there is more than entertainment in the story of State v. Orestes. Embedded in Greek culture was a devotion to their invention of democracy. The fundamental idea of democracy was that citizens should make important decisions for the community. Thus, twelve citizens were entrusted to represent the community in dispensing justice.
And that is a concept that echoes today. I have heard many lawyers, and often myself, include in our jury arguments that they represent the community and that the community expects them to do the right thing and render just verdicts.
And thus, the echo of a play about a trial from thousands of years ago continues to be heard in our courtrooms today to twelve-person juries.