ABSTRACT

The function of a trial is to resolve disputes. Although some conflicts can be resolved purely by the application of legal principles, most trials involve disputes about a state of affairs or occurrence that took place in the past. Thus, a court must typically decide factual issues. Once it has done so, it can apply legal principles to the facts in order to arrive at a judgment. During the middle ages there were differing methods of ascertaining the facts, or

determining which party was telling the truth. Sometimes the parties were allowed to decide the matter by swearing an oath. Knights might decide a case by engaging in trial by battle. Perhaps the most interesting procedure was trial by ordeal. The ordeal by water, for instance, involved being thrown into a pond or other body of water. If the party sank, she had told the truth and was quickly rescued. If she floated, the water (being pure) had rejected her, exposing her claims as lies. All these methods of proof relied on divine intervention and hence required the cooperation of the church. Ordeals ended when a church council in 1215 declared that priests could no longer participate and because God no longer spoke through these rituals, they became meaningless (Baker 1990: 5-6). Without divine intervention, how can courts know which party is telling the truth?

Medieval English judges began to call twelve juratores (“persons who have been sworn”) to court. They were summoned from the place where the dispute had taken place. The jurors were expected to have personal knowledge of the truth. Eventually, jurors began to decide what happened based upon evidence presented to them in court. In fact, today jurors are required to determine the facts solely on the basis of admissible evidence; they are generally disqualified if they have any prior knowledge of the facts or conduct an independent investigation (Baker 1990: 88-89; Levy 1999). For many centuries, judges would give no instructions to jurors, although they might

answer questions. Because the jurors were expected to reach a verdict, they would have

to decide whether a party was guilty or liable based largely on their own sense of justice. This was true also in the English colonies of North America, which later became the United States. The American revolutionaries trusted the common sense of citizens and held that jurors should be able to decide not only the facts of a case, but also the rules of law that ought to be applied to reach a verdict (Levy 1999: 69-76). This state of affairs began to change as the United States industrialized. Predictable

legal principles were important for the growth of commerce and industry. By the end of the nineteenth century, the Supreme Court held that “it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts” (Sparf v. United States, p. 102). This principle, which was later extended to civil cases, meant that judges had to instruct jurors on the relevant legal principles. Creating a set of instructions for every case took a great deal of time and effort.

Moreover, each judge’s instructions would necessarily be somewhat different from those used by other judges. Soon cases began to be reversed because of errors in wording. Such problems led to the establishment of a committee of judges and lawyers in California, who in the 1930s and 1940s began to draft standard (also called pattern) instructions. The idea spread. Most American state and federal courts currently use standardized jury instructions (Nieland 1979). Pattern instructions have indeed saved judges and lawyers time and money. Because

they are usually drafted by committees of judges and lawyers, rather than a single judge, they tend to be accurate statements of the law, which has reduced the number of appeals for instructional error (Schwarzer 1981). Yet for the most part, they have not proven to be particularly comprehensible for the ordinary citizens who comprise the jury.