Home My Bar Page CLE Bar Journal Contact Us Membership Directory

Job Bank
News and Publications
Member Services
Judges' Benchbooks
Emeritus Program

Case Maker

Law Pay

Legally Speaking


Issue: April, 2007
Author: Frederick J. Harrison

pdf Printable Version (PDF)

The Historic and Cultural Roots of Wyoming’s Right to a Jury Trial

It is impossible to separate the right of a Wyoming citizen to jury trial from the history of Western culture and civilization. Recognizable forms of jury trial existed in ancient Greece and Rome and are precursors to the modern right existing in all American states, including Wyoming. There are extensive writings containing the jury orations of ancient lawyers, such as Cicero, addressing juries (while timed by water clocks) in the Roman forum.

With the decline of the Roman Empire, trial by jury ended in Europe and was largely replaced with substitutes, such as "trial by ordeal," "trial by combat," the most destructive of all bloody feuds and melees resulting in the total disruption of social order. In contravention of these brutal forms of conflict resolution, there arose a medieval revival of the jury trial in various places where order began to prevail. Ancient Danes settling in England formed committees of twelve hereditary "law men" to administer justice. Later King Henry II began the English practice of having juries decide land disputes and began also the use of the grand jury as the entity charging individuals with crime. When Catholic clergy declared in cases of "trial by ordeal" and "trial by combat" that clergy would no longer be present to administer the last rights to participants in violent means of conflict resolution, there was a consequent increase in the more peaceful trial by jury.

In 1215 A.D. trial by jury became an explicit right enshrined in the first English document restricting the right of a King to take properties from or otherwise punish a free man. The Magna Carta provided that the King could not withhold the right to jury trial from freemen that stood to lose property or life. According to scholars, the Magna Carta established an early form of due process of law, which in those times meant a trial by twelve peers of a freeman.

By the time of the American Revolutionary War, the grand jury, criminal petit jury and the civil petit jury were firmly established rights of all Englishmen. Americans as heirs of the English common law included as a grievance against King George III his infringement of the right to jury trial in the Declaration of Independence. The right to jury trial was regarded as every bit as important (if not more important in the eyes of Thomas Jefferson) as the right to vote.

Before the United States Constitution was acceptable to the American people, those proposing the Constitution promised that a “bill of rights” would be passed including in particular the right to civil jury trial. The Federalist Papers # 83. The promises of the right to criminal and civil jury trials in the federal courts were fulfilled when these rights were included in the Bill of Rights to the Constitution in the Sixth and Seventh Amendments. U. S. District Court Judge William L. Dwyer in his book In the Hands of the People has said in summarizing the early history of the founders in regard to juries:

….When they wrote the Constitution, trial by jury was widely seen as ‘the very palladium of free government,’ to use the phrase from The Federalist Papers, and would no more have been abandoned than would the ballot box. Thomas Jefferson, while serving as Ambassador to France, wrote in a 1789 letter: ‘Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.’….

The Wyoming Constitutional Convention of 1890 established with statehood the continuing American tradition of the grand, criminal and civil juries. The only debate regarding jury trial in the outline minutes of the Wyoming Constitutional Convention concern the limiting of jury awards in civil cases. Territorial Wyoming had limited to $5,000 the damages which a civil jury could repay injured persons or families of the wrongfully killed. The railroads were the principal beneficiaries of the territorial cap on civil damages, since they caused the largest number of deaths and injuries. The founders of Wyoming knew that the railroads had no incentive to improve their then abominable safety record if the value of life was made cheaper than safety. Upon a voice vote, without a call for division, convention delegates determined that juries of Wyoming citizens were fully capable of deciding without limits the appropriate amount to compensate the injured and families of the deceased. Convention delegate Mr. Morgan said in summing up the discussion:

"I don't see why any maximum should be fixed for damages to persons injured or killed. You might as well fix by law the maximum at which I shall sell my house. I think a man ought to have the right to settle on the best grounds he can get. It is an interference with human rights it seems to me. It can’t injure anyone to leave it just as it is in this provision.” (Allowing juries by provision of the Constitution to decide the amount of damages).

Continuing in this tradition, juries in Wyoming have been able to decide the most important issues of life and death in capital murder cases. Both men currently on Wyoming's death row were sentenced to death by Wyoming juries and not by a judge.

By the same token, the right to a civil jury trial deciding monetary damages has been and remains an essential part of Wyoming's heritage. In Wyoming a jury is regarded as equally capable of deciding life and death issues, such as the death penalty, and civil issues involving business contract or negligence. The most important questions regarding responsibility, both civil and criminal, are reserved for resolution by a jury of Wyoming peers.

The rights of a citizen to have a Wyoming civil jury trial decide monetary responsibility has been repeatedly reaffirmed from the earliest times of statehood. Justice Samuel T. Corn of the Wyoming Supreme Court said only ten years after Wyoming became a state: "It is so well settled as to require no reference to authorities that when the Constitution secures to litigants the right of trial by jury the legislature has no power to deny or impair such right." First Nat’l v. Foster, 61 P. 466 (Wyo. 1900).

Wyoming's only United States Supreme Court Justice, Willis Van Devanter recognized that the founders of the United States considered essential the right to civil jury trial when in 1913 in a U. S. Supreme Court opinion he said: "The absence of any provision respecting the mode of trial in civil actions was so generally regarded as endangering the right of trial by jury and evoked so much criticism on that ground, that the First Congress proposed the Seventh Amendment which was promptly ratified." Slocum v. New York Life Ins. Co., 228 U.S. 364, 377 (1913).

Most recently, in the general election of 2004, the Wyoming electorate rejected a proposed constitutional amendment which would have allowed the Legislature to limit the right of a citizen to have a jury decide how much is necessary to compensate for the wrongful negligence of a medical provider. The rejection of this amendment was within the tradition of Wyoming: to hold all persons accountable, no matter their status, to the rule of law and to allow no one to be above the law.

Last October a gathering of Wyoming Clerks of Court took place in Casper. Clerks of Court, or their deputies, are present at nearly every jury trial in the state. During the meeting the clerks were asked if they had witnessed any Wyoming jury that had not performed its duties properly; such as compensating someone an outrageous sum of money. The clerks, some of whom had served on juries themselves, could not think of a single instance in which a Wyoming jury had acted inappropriately or had frivolously compensated for injury or death. The audience of clerks was overwhelmingly complementary of Wyoming jurors and juries. Everyone in attendance believed that jurors performed their duties with the utmost of responsibility. Most Wyoming Clerks of Court are Republicans and therefore tend to be conservative in outlook. In keeping with their conservative tendencies, and in the tradition of the state’s founding fathers, Wyoming Clerks of Court favor the right to jury trial.

At the same October Clerks’ meeting it was addressed by the Honorable William F. Downes, U. S. District Court Judge for Wyoming; a man who has witnessed many jury trials as attorney and judge. Paraphrasing the Judge, he stated his abiding belief in two American institutions: the United States Marines (of which he was one) and the six or twelve people in the jury box of a Wyoming Court.

Summing up the marvelous instrument of citizen participation in the administration of justice that is the English, American and Wyoming jury, Harry Kalven, Jr. and Hans Zeisel said in their famous 1966 work The American Jury:

The Anglo-American jury is a remarkable political institution... It recruits twelve laymen, chosen at random from the widest population; it convenes them for the purpose of the particular trial; it entrusts them with great official powers of decision; it permits them to carry on deliberations in secret and to report out their final judgment without giving reasons for it; and after their momentary service to the state has been completed, it orders them to disband and return to private life... The jury is thus by definition an exciting experience in the conduct of serious human affairs….

In Wyoming the fullness of the founders’ vision remains in the still complete right of Wyoming people to try their cause before their fellow citizens.

Frederick J. Harrison graduated from the University of Wyoming Law School in 1977. He worked for the Governor's Planning Committee on Criminal Administration and for the Wyoming Attorney General's office. Harrison then became a deputy prosecuting attorney for Carbon County, Wyoming. In 1980, he became a deputy public defender for Carbon County, Wyoming and worked as a public defender for five years while conducting a private general law practice. In 1982, Harrison was elected to the Wyoming State Legislature as a state representative from Carbon County, Wyoming. He served until he retired from the legislature in 1992 after 10 years of service. In 1996, Harrison was elected to the Board of Directors of the Wyoming Trial Lawyers and has remained a member of the Board or an officer since. He has served in the offices of Secretary/Treasurer, Vice President, and is currently President of the Wyoming Trial Lawyers Association having been elected in 2005.

Copyright © 2007 – Wyoming State Bar