From "Rites" to "Rights": The Decline of the Criminal Jury Trial

In Representing Justice, Judith Resnik and Dennis Curtis highlight - indeed, speak movingly - of the shift from the "pageantry and spectacle ('rites') entailed in Renaissance adjudication," to the "entitlements ('rights') to processes of a certain kinds that entailed making courts open to anyone who wanted to watch." The transformation from "rites" to "rights" is a process rightly celebrated, but, as the authors caution, in the modem American legal environment, it is at risk of backsliding. My talk illustrates one aspect of this phenomenon, from the modest colonial courthouses, in which American jurors enforced (or not infrequently, rejected) English law, to the modern federal courthouses, where the jury deliberation rooms stand empty. Colonial criminal jury trials involved far more than rituals that reflected the administration of power, although they were surely that. On the one hand, they made transparent the acts of the state in imposing its ultimate authority over the individual, the authority to punish, to take away an individual's liberty, even their life.

On the other hand, the colonial citizenry was invited in not merely to be passive observers. They - at least the white men with property among them - were decisionmakers, members of a twelve-person lay jury. Courthouses had to be configured not only to make trials open, but also to permit space for the deliberating jury.