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 NEWSPAPERS AND THE JURY

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NEWSPAPERS AND THE JURY THE INFLUENCE OF MODERN JOURNALISM ON CRIMINAL TRIALS BY CLARENCE BISHOP SMITH STABLE as the jury system seems to us to day, linked as it is with our traditions of English and American liberty, it is common knowledge that in the course of its history it has been subject to many modifications. It is familiar certainly to the legal profession that for centuries members of the jury were required to have knowledge of the facts as a qualification for service. Brunner writ ing of the jury in the Carlovingian period says (Schw. 84): "The characteristic of it is that the judge summons a number of the members of the community, selected by him as having presumably a knowledge of the facts in question, and takes of them a promise to declare the truth on the ques tions to be put by him." This custom pre vailed three centuries later in the time of Henry II. Glanvill writes (cc 17, 18): "When once the twelve knights have as sembled, it is first ascertained by their oath whether any of them are ignorant of the fact. If there be any such they are re jected and others chosen." As time went on and communities grew larger, although the juries were required to be drawn from the neighborhood, it became impossible for all of the jurors to be wit nesses in respect to the matters in issue, and therefore the jurors who were cognizant of the facts of the case informed those who were not. This was the first step toward our present jury system. In an important trial in 1374, Belnap C. J. said (Year Book 48, Edward III, 30): "In an assize in a county, if the court does not see six or at least five men of the hundreds where the tenements are, to inform the others who are farther away, I say that the assize will not be taken." Gradually the parties were also allowed to give information to the jurors, through the medium of witnesses. The jurors con

tinued, however, to decide the case upon their own knowledge however obtained, even when the facts might not be known to the judge or the parties. A striking ex ample of this was given in Bushels case, 1670 (Vaughan, 135, 149). It was not until 1816 that the courts laid down the principle that juries in reaching their verdicts must not go upon their own knowledge of the facts (Rex v. Sutton, 4 M. & S. 532; Pike, History of Crime, II 368-9). Thus the custom which had prevailed for more than one thou sand years was done away with, and the existing doctrine introduced. The latter has prevailed less than one hundred years. Long before 1816, however, it was true as a practical matter that very few juries did have an actual knowledge of the facts. The growth of communities prevented it. It is a curious feature of our civilization of to-day, that in regard to some cases, chiefly important criminal cases, the situa tion is gradually changing, so that the aver age juror knows something about the case before the evidence is taken in court. This is brought about by the newspaper which sets forth at length details of the crime, often illustrating by imaginary pic tures. Unfortunately such material can not from any point of view be held satis factory for a jury to consider. The juries have a knowledge of the facts, but it is not of that accurate character which the juries of early days possessed, and consequently the only question which invites discussion is how far we shall restrict juries in such cases from the use of newspapers, and how far knowledge obtained from such sources disqualifies them to serve. This question recently arose in Virginia, January 26, 1905, in the case of McCue v. Commonwealth, 49 S. E. Reporter, p. 623, p. 630, in which a former mayor of Char