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by Ketan Jhaveri - Harvard Law School '99
Judicial Gatekeeping as a Means to Maintain the Legitimacy and Accuracy
of the Trial Process
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 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.
Period: Unchecked Judicial Power and its Problems
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.
of Unchecked Judicial Power, the Rise of the Adversary System, and the
Right to Trial by Jury
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.
View of Judge-Jury Relations: Unfettered Juries and Limited State Power
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
Emergence of the Judicial Gatekeeping
Role: The Need for Predictable Law
The Hearsay Rule and the Need
for Credibility of Evidence
The Law/Fact Distinction: American
Commerce, the Need for Predictability and Behavior Modification
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
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.
H. Langbein, Historical Foundations of the Law of Evidence: A View from
the Ryder Sources, 96 Colum. L. Rev. 1168, 1194 (1996).
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