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By Root 1812 0

is a fundamental ambiguity about the role of the jury. The jury had enormous power. It held life and death, freedom or imprisonment, within its hands. The state could not appeal an acquittal—if the jury acquitted, its word was absolutely final. But there were also rules of criminal evidence, a body of law of bewildering complexity. No country in the world has such a Byzantine effloresence of doctrines about evidence: a jungle of rules, counterrules, subrules, exceptions to rules—and exceptions to exceptions of exceptions. The law of hearsay, the law of privileges, and other branches of evidence law—all had their greatest growth spurt in the nineteenth century. The net result was to suppress great chunks of truth. The point of this gigantic system—Wigmore’s treatise of 1904, which summed it up, took five thick volumes—was to preserve the sacred innocence and neutrality of the jury. The point was to make sure the jury saw, smelled, and heard only the most carefully examined and predigested pablum of evidence.bj

All this completed a process, which over the centuries had turned the jury on its head. It was no longer a wise panel of neighbors, men who understood the context of the crime and maybe even knew something of the crime itself. It was now supposed to be a totally sanitized panel, people who knew nothing, had heard nothing, suspected nothing, understood nothing. The defendant was “presumed” to be innocent. The jury was supposed to treat him as if he was a complete stranger: a blank slate as to personality, character, and prior life.

This was a concept appropriate to mobile societies and big cities, where it was easy to be unknown and anonymous. In small towns, and in traditional societies, the idea was ludicrous. In sensational trials, too, this virgin-juryman was hard to find. Mark Twain, talking about juries in Virginia City, Nevada, was characteristically acerbic: trial by jury “puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.” In one trial, in which a “desperado” killed a “good citizen,” twelve men were finally chosen who swore “they had neither heard, read, talked about, nor expressed an opinion concerning a murder which the very cattle in the corrals, the Indians in the sage-brush, and the stones in the streets were cognizant of.” The jury was “composed of two desperadoes, two low beer-house politicians, three barkeepers, two ranchmen who could not read, and three dull, stupid, human donkeys!” The verdict was “Not Guilty. What else could we expect?” 52

Juries were, on the one hand, supposed to reflect popular norms; but, on the other, they were not supposed to indulge in popular stereotypes. On the one hand, they were lionized; on the other, mistrusted. Mark Twain was not the only critic of the typical jury.53 In some ways jurors were also positively forbidden to use their common sense. Why else treat so many obviously relevant facts as legally irrelevant? If the state put a man on trial for some crime—burglary, for example—it could not show he had committed some other crime, or the same crime in a different place, or in a different way. In Pennsylvania in 1872, Emanuel Shaffner was indicted for poisoning his wife, Nancy. Shaffner had had “improper intimacy” with another woman, Susan Sharlock, whose husband had also died of poison; Shaffner’s first wife, Sarah, died of this same suspicious cause. The state managed to put in evidence that Mr. Sharlock came to his death through poisoning; but when the jury convicted Shaffner, the high court reversed: “A distinct crime, unconnected with that laid in the indictment, cannot be given in evidence against a prisoner.”54

Most people (myself included) would smell a very large rat in this situation. Coincidences do occur, but the epidemic of poisonings in and around Emanuel Shaffner stretches the notion of coincidence to the breaking point. Not many of us would be willing to have a meal at Shaffner’s house without bringing a taster along. The law did not exclude evidence of the wave of poisonings because it proves nothing,