A brief historical overview of the use of the mixed jury.

• Author: Ramirez, Deborah A.
• Position: Symposium on bias in justice administration

1. INTRODUCTION 1213 II. THE ENGLISH EXPERIENCE WITH THE MIXED JURY 1214 III. THE AMERICAN RESPONSE TO THE MIXED JURY 1220 IV. HISTORICAL IMPLICATIONS AND THE CONCEPT OF AFFIRMATIVE PEREMPTORIES 1222 A. A Proposed Solution 1223 1. The First Jury Pool: The Total Venire 1223 2. The Second Jury Pool: The Qualified Venire 1223 3. A Modification: The Use of Affirmative Peremptory Choices to Create the Second Pool or the "Qualified Venire" 1223 B. A Discussion of the Proposal 1224 V. CONCLUSION 1224 I. INTRODUCTION

   In this article I intend to provide a brief overview of the history of a mixed jury or a jury "de medietate linguae."(1) After describing the history, I intend to examine how, in light of that history, I believe juries should be selected.

   When I began teaching my students about jury selection, I used to tell them that the term was a misnomer. "In reality," I pontificated, "one does not actually have the power to select jury members, one merely has the opportunity to exclude some potential jurors by exercising peremptory challenges." So, of course, I was astonished to learn, while researching other jury selection issues, that for over seven hundred years in England and in America, there did exist an affirmative mechanism for selecting a jury in certain cases--"de medietate linguae."

2. THE ENGLISH EXPERIENCE WITH THE MIXED JURY

   This term literally means jury of the half tongue because this method of selection applied to people in England who were considered alien or foreign. Because these individuals spoke a foreign language, the mixed denizen/alien juries came to be know as juries "de medietate linguae."

   Beginning in the 1100's, the English focused on a specific jury selection problem: the inherent danger which might exist when a member of a minority community was tried by a jury composed of majority group members. In response to this concern, they created an affirmative remedy to address the problem of prejudice. They reasoned that if prejudice against a minority group existed in the general population, that prejudice would be present within any jury pool or petit jury. In order to mitigate the effects of such prejudice, English law provided a specific remedy--the right of minority group members to a mixed jury or a jury "de medietate linguae." It provided that when a foreigner was a litigant, in civil and criminal cases, the jury would consist of one-half natives and one-half foreigners.

   The story begins with the Jews in England during the twelfth and thirteenth centuries. Darker-skinned, speaking a mysterious and foreign language, Jews were viewed by the English as aliens in race, religion, and culture.(2) The vast majority were money lenders.(3) While some were wealthy and influential, under the law, Jews faced several hardships. They held all that they possessed by the good will and at the pleasure of the King.(4) Upon a Jew's death, his entire estate passed to the Crown.(5) Therefore, by law, the Jews and all their effects were the King's property.(6)

   Moreover, from time to time, when the King needed funds, he would arrest the entire Jewish community and levy huge assessments upon them. In this sense, the Jews functioned as a reserve of capital upon which the Crown could draw when necessary.(7)

   It was in the context of this symbiotic relationship between the Crown and the Jews that special rules developed to govern jury selection in cases between Christians and Jews. When Jews had civil disputes with other Jews, such matters were settled by separate Jewish tribunals.(8) The King had little or no financial interest in these disputes because, whoever prevailed, the property in dispute would remain in the hands of a Jew and, therefore, be subject to appropriation by the Crown. However, when a Jew was engaged in a dispute with a Christian, the King had a substantial financial interest because, if the Christian prevailed, property that otherwise would belong to a Jew--and thereby to the Crown--would become the private property of the Christian and be lost to the Crown. Therefore, in these latter disputes, the King had a substantial interest in ensuring that the result was fair and not the product of popular prejudice against the Jews.(9)

   To ensure the fairness of disputes between Christians and Jews and to protect what ultimately was the King's property, beginning in 1190, by charter and law, the Crown gave Jews in such disputes the right to a jury in which one-half of the members were Jewish.(10)

   By the middle of the thirteenth century, however, several changes were taking place. Anti-Semitism was gathering strength.(11) Usury laws began to allow Christians to lend money.(12) Parliament began to allow the King greater flexibility to tax the native population even when there was no military necessity for doing so.(13) Finally, in the summer of 1290, Jews were banished from England.(14)

   After the expulsion of the Jews, foreign merchants from Italy and later from Germany became the financial agents of the King.(15) These elite, powerful men provided capital and transportation to facilitate England's trade with Europe. England exported wool and low-grade woolen cloth. In exchange, the foreign merchants brought fine wine, timber, fish, fine cloth, spices, and jewels to England.(16)

   The importance of these merchants to the English economy cannot be overestimated. They were importers and exporters; they paid high tariffs and taxes; they lent money. The King gave foreign merchants a monopoly with respect to the export of certain goods, such as wool. In return, the King demanded customs and duties from the foreign merchants that exceeded the taxes paid on such goods by natives. In short, these alien merchants were central to the English economy.

   In jury selection, the alien merchants enjoyed a special privilege: the privilege, except in criminal death penalty cases, to a trial "de medietate linguae"--a trial by a jury composed half of their own countrymen, if a sufficient number could be found, and half of English persons qualified to serve as jurors.(17)

   In 1353, this common law right was codified by the Statute of the Staple,(18) which specifically provided that, in civil cases, all alien merchants were entitled to a jury consisting of one-half alien merchants.(19) Moreover, if the dispute were between two alien merchants, the jury would be composed solely of alien merchants.(20) In 1354, this principle of "de medietate linguae" was extended by statute to all aliens and to all cases, civil and criminal.(21)

   The importance of the mixed jury to the alien merchants is best shown by their response to the temporary loss of this privilege. During the reign of Henry V, in 1414, Parliament passed a statute that set certain qualifications for serving on a jury and changed the juror property qualification requirements. The statute failed explicitly to state whether the right of "de medietate linguae" was affected, but its language permitted that interpretation because aliens were prohibited in England from owning real property. The English courts, perhaps believing that the 1414 statute did repeal the right to a mixed jury, stopped furnishing...