The Jury's Rise as Lie Detector
George Fisher
In the history most often told, the criminal trial jury has
steadily surrendered power and prerogative. First cast as a group
of roving decisionmakers without real judicial oversight, the jury
gave up its lawmaking portfolio to judges, who then crabbed its
factfinding mission as well. Professor Fisher tells a contrary
history that focuses on the jury's expanding role as judge of
witness credibility. In the jury's early centuries, the system put
its faith not in the power of the jury to detect lies, but in the
power of the oath to guarantee truthful testimony. An elaborate
scheme of evidence rules promoted and protected the illusion that
the oath assured truth. Gradually, as these old evidence rules fell
away, the Anglo-American criminal trial jury assumed its full and
formal status as our system's lie detector.
At times, this process of legal change crossed paths with other,
larger events. The treason trials of late-Stuart England helped to
speed the collapse of one old evidence rule. The bitter fight over
the right of African Americans to give evidence in post-Civil War
America helped to bring down another. But beneath these tumultuous
events coursed a broader, systemic impulse that carried the jury
forward toward its modern role as lie detector. This impulse,
Professor Fisher argues, was the system's need to protect the
apparent legitimacy of its verdicts. For this task, the jury's
ability to shroud all shortcomings within the black box of the
deliberation room had an irresistible allure.
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