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Judicial Gatekeeping in the United States:
A Historical Perspective

by Ketan Jhaveri - Harvard Law School '99

Introduction: Judicial Gatekeeping as a Means to Maintain the Legitimacy and Accuracy of the Trial Process
     There has been a tug of war between judges and juries throughout American history. A survey of jury/judge relations reveals a swing from very powerful judges in the colonial period to a jury that developed a controlling role shortly after the Revolution. Since the Revolution, the balance of power between judge and jury has repeatedly readjusted itself. Generally, the jury has maintained its authority to make inferences from the evidence, but the judge has provided a framework that requires the jury's inferences to be credible and legitimate.

     Legal commentators have noted that in response to the evolving nature of legal disputes, power to make certain determinations has been transferred from juries to judges. An example of this is in a comment by Professor John Langbein while discussing the history of the law of evidence in Anglo-American law. He says "the law of evidence has changed mightily since the Middle Ages, along with the jury itself, but the primary mission of our law of evidence--to guard against the inherent weaknesses of jury trial--has remained constant."(1) Of course, the perceived weaknesses of a jury at a particular time are a function of the disputes a jury has to face and the prevalent perception of the jury's capabilities and biases. Professor Lawrence Friedman observes that "the law has distrusted the jury almost as much as it has distrusted the judge."(2) The law responds by balancing the powers of both institutions to best achieve the results it deems desirable and fair. Many others have argued that the increased complexity of the law has led to the need for judges to serve as gatekeepers of what goes to the jury.(3) The primary concern that drives changes in the judge/jury relationship is a desire to increase the accuracy of judgments and to maintain the legitimacy of the trial process.

The Pre-Revolutionary Period: Unchecked Judicial Power and its Problems
     During the Colonial period, judges were not neutral arbiters. Before the adversary system was firmly in place in the colonies, judges served as fact-finders. In contrast to their role in modern American trials, colonial judges did not find facts to help determine a defendant's guilt or liability. Instead, it was the judge's task to find facts that would support a predetermined verdict.(4)

The Salem witch trials are a noteworthy example of this type of jurisprudence.(5) Neither party in the Salem trials had attorneys and the fact-finding role of the judiciary was supreme and unchecked. The judges used dubious techniques including leading questions to obtain evidence such as confessions from the legally inexperienced accused. The goal of the judges was to produce evidence that would support a guilty verdict. In addition, the jury had very little independence from the judges, who used techniques such as extensive comment on the evidence to render the jury little more than a rubber stamp of the judges' views.

     Several aspects of these trials were questionable. First, the judge controlled the production and presentation of evidence with no challenge from counsel. Second, any dubious evidence presented, such as testimony of supernatural occurrences, could be used at trial if the judges in their unlimited discretion so desired. There was no one to challenge the strength, relevance, or veracity of the evidence presented. The Colonial period was characterized by unrivaled power of the judge and his dominance over both the parties and the jury.

Distrust of Unchecked Judicial Power, the Rise of the Adversary System, and the Right to Trial by Jury
     Colonists grew to distrust the judges because the judiciary was appointed by the British monarchy. The monarchy, in turn, distrusted colonial juries. During the 1760s and 1770s, the British enacted several laws that limited the right to trial by jury, especially in the admiralty and vice-admiralty courts. The Stamp Act Congress of 1765 and the Continental Congresses of the 1770s were convened to address the various Intolerable Acts. At each of these Congresses the colonists proclaimed the virtues of the right to trial by jury. In fact, the loss of the right to trial by jury was one of the grievances that led to the Revolution.(6)

     By the time of the Revolution, an adversary system had begun to develop. Some of the colonies, including Pennsylvania, Rhode Island, South Carolina, Delaware and Virginia, created a right to counsel for the defendant in many criminal trials. The adversary system limited the power of judges by allowing lawyers to present and develop the evidence. Giving the accused an opportunity to defend himself challenged judges' previously unchecked control over evidence.

The Antifederalist View of Judge-Jury Relations: Unfettered Juries and Limited State Power
     Beginning in the Colonial period, people viewed juries as an important check to state power. During English rule, juries sometimes served to negate the power of unjust English laws. In the famous trial of John Peter Zenger, a jury acquitted Zenger on the charge of seditious libel for attacking British officials in his newspaper.(7) The Zenger jury rejected the judge's instructions, thereby implying that there should be a free press and that truth should be a defense to libel. The verdict further illustrated that the judge did not have absolute control over the law.(8) The Zenger trial's affirmation of the importance and power of the jury was contradicted by the British government's limitation of the right to a jury trial. This limitation provoked the drafters of the Declaration of Independence to list the denial of this benefit as one of the grievances against the Crown. After the Revolution, most of the newly formed states included the right to jury trial in their state constitutions. A view of essentially unchecked jury power prevailed in the early Republic, but the power of the jury raised questions for some Founders. 

     Some drafters of the Constitution worried about the possibility of unchecked democracy and therefore wanted to create a stronger national government. The Antifederalists resented the Constitution's exclusion of the right to jury trial, and this omission was a central issue in their campaign against ratification of the Constitution. Antifederalists asserted that the biases of judges and juries were different. They believed that without a right to a jury trial, judgments would be systematically in favor of the government and individuals with political and economic power.(9) Eventually, the efforts of the Antifederalists led to the ratification of the 7th Amendment, codifying the right to a jury trial. Reducing the power of judges was seen as consistent with underlying constitutional principles of federalism and checks and balances. 

Victory of the Antifederalists: Jury Domination in the Early Republic
     In the new nation, juries had the power to decide both issues of fact and of law. Their newly enhanced role mandated that that jurors should decide a particular dispute based on their own judgment and sense of morality rather than on legal doctrine. Legal disputes were seen as within the basic understanding of the normal people who served on juries. Limits appeared on the power of judges to comment on evidence and influence the views of jurors. Fear of tyranny and faith in the ability of lay jurors placed juries at an unprecedented level of power during the period of the New Republic.

Emergence of the Judicial Gatekeeping Role: The Need for Predictable Law
     As the country developed, the fears of those who had to make use of the courts became much more sophisticated and complex. Americans, particularly business interests, needed the law to be more predictable and certain.(10) Consequently, the balance of power between judge and jury began to shift. Judges developed techniques to filter evidence the jury could see and issues they could rule on. Through these gatekeeping powers, judges regained some, but not all, of their previous control over fact producing and fact-finding. Following English tradition, rules of evidence developed enabling judges to keep misleading and untrustworthy evidence from the consideration of jurors.

The Hearsay Rule and the Need for Credibility of Evidence
      The hearsay rule is the best example of such a rule of evidence. With the institution of the adversary system, defense lawyers demanded the power to be able to cross-examine witnesses. The emerging view of cross-examination as the engine of truth led to the exclusion of secondhand statements made by those not available to testify at trial. Hearsay evidence was seen as weak and flawed, and the legal system was concerned that jurors would be misled by this kind of evidence. Jurors were not trusted to be able to properly weigh and evaluate the flaws of this evidence for them-selves. Instead, the hearsay rule expresses the view that judges should preemptively avoid the problem of flawed verdicts by keeping the evidence from the jury altogether.(11)

The Law/Fact Distinction: American Commerce, the Need for Predictability and Behavior Modification
     Other devices also emerged which gave the judge more power to constrain what the jury viewed and decided. Professor Morton Horwitz argues that these changes were triggered and driven by the changing nature of economic life in the United States.(12) As America industrialized, law adjusted and took on an instrumental character. The legal profession began to recognize that law had an effect on the course of social change.

     Leaving both matters of law and fact to the jury compromised certainty in the legal system. Regardless of what happened in a previous case, a jury could decide an issue in any way because they were not bound by any fixed view of the law. A person engaged in commercial enterprise thus could not predict what standard of behavior would leave him free from legal liability. A person did not know what law the jury would apply until he appeared in court. Furthermore, the jury's decision did not provide any guidance or precedent for decisions by future juries. 

      This uncertainty was detrimental to the growth of industry because it left businesspeople vulnerable to unknown liability. In the 19th century, as a result of pressure from industry for a more unitary law, the law/fact distinction emerged.(13) According to this allocation of decision-making power, judges, as members of the legal profession who were aware of the body of law relevant to a case, decided questions of law. While retaining the power to decide questions of fact, jurors were to obey the judge's determinations of the law. Through this exercise of judicial power, the courts provided a degree of certainty and predictability that was previously lacking.

      The doctrine of contributory negligence emerged at this time as a way for judges to control which cases the jury had the power to decide.(14) If the plaintiff in a case failed to prove that they were not contributorily negligent, the judge could dismiss the case as a matter of law without submitting it to the jury. In the early years of industrialization the judge could use contributory negligence to keep a case from the jury and thereby limit liability. This doctrine has been replaced in most states by a comparative scheme that once again involves the jury.

     Another device illustrating the emergence of the law/fact distinction was judges' willingness to override jury verdicts when they considered them contrary to law. The ability to grant new trials, effectively negating the decision of a jury, was obviously a huge shift in power to the judiciary. This power was used mostly in cases where the judge considered the jury less capable than he of deciding issues as well as in cases where the consequences to economic interests were considered too important to leave to the uncertainty of a jury.(15) These cases often involved marine and fire insurance claims, which were the high stakes judgments of the times.(16) Judges also set-aside damage judgments they deemed excessive, especially those awarded in contract cases.(17) Judges worried that judgments not justified by the evidence of a case would place the country's economy at great risk.(18) This early form of judicial gatekeeping arose in response to exigencies of cases in which judicial control was believed to better serve the needs of American society.(19)

Gatekeeping Limits: Protection of the Jury's Role in Making Evidentiary Inferences
     Not all methods of judicial gatekeeping have been privileged. For example, extensive judicial comment expressing a judge's view of evidence is not favored. By 1913, at least 41 states prohibited judicial comment.(20) Other old methods of bullying the jury such as constantly sending the jury back to redeliberate are prohibited. These limitations point to the jury's protected role in making inferences from evidence.

     While juries ultimately draw inferences from the evidence, judges' make sure that a jury's inference from available evidence is legitimate. Historically acceptable gatekeeping practices exclude evidence that does not allow the jury to make a reasoned inference. When evidence such as hearsay is deemed flawed and incapable of sustaining an acceptable conclusion, judicial gatekeeping keeps that evidence from consideration by the jury. Evidence has also been kept from jurors because it is deemed too complex for them to make the required inferences. This is reflected in the codification of certain determinations (e.g. marine and fire insurance cases mentioned above) as matters of law which the judge rather than the jury should decide. Changing social and economic conditions like the industrialization of the United States have resulted in a give and take between the roles of the jury and judiciary.

     The history of judicial gatekeeping in the United States indicates a respect for the role of the jury as well as a mandate for judges to control what evidence will reach the jury. The interplay between judge and jury continues to impact the nature of decision-making in American courts.


1. John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 Colum. L. Rev. 1168, 1194 (1996).
2. Lawrence Friedman, A History Of American Law 135 (1973).
3. See Albert W. Alschuler & Andrew G. Deiss, A Brief History of Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 916 (1994).
4. See Randolph N. Jonakait, The Origins of the Confrontation Clause: An Alternative History, 27 Rutgers L.J. 77 (1995).
5. Id. at 126.
6. See Stephan Landsman, The Civil Jury in America: Scenes from an Unappreciated History, 44 Hastings L.J. 579 (1993).
7. See Alschuler and Deiss, supra note 3, for more elaboration on the Zenger trial and other examples of juries using their discretion to negate laws.
8. Landsman, supra note 6, at 579.
9. See Alan Howard Scheiner, Judicial Assessment of Punitive Damages, the Seventh Amendment, and the Politics of Jury Power, 91 Colum. L. Rev. 142 (1991) (discussion of the Antifederalists' views of juries and judicial power).
10. Morton J. Horwitz, The Transformation Of American Law 1780-1860 28 (1977). 
11.  For a more comprehensive discussion of the history of the hearsay rule, see Langbein, supra note 1.
12. Horwitz, supra note 10.
13. Id. at 28. 
14. Landsman, supra note 2, at 579. 
15. For an extended description of the types of cases, see Renee B. Lettow, New Trial for Verdict against Law: Judge-Jury Relations in Early Nineteenth-Century America, 71 Notre Dame L. Rev. 505 (1996).
16. Id. at 542.
17. Id. at 552.
18. Id. at 546.
19. For a discussion of how there has been a recent trend stripping civil juries of the power to determine punitive damages because of the belief that judges can best determine the "optimal" level of such damages see Scheiner, supra note 9.
20. Barbara J. Shapiro, "Beyond Reasonable Doubt" And "Probable Cause": Historical Perspective On The Anglo-American Law Of Evidence 269 (1991).

Page Last Modified on April 25, 1999 by Dan Fridman - Copyright 1999
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