Chapter §6.1 INTRODUCTION

• Jurisdiction: Oregon

§6.1 INTRODUCTION

This chapter outlines the constitutional underpinnings of the right to a jury in Oregon state courts.

§6.1-1 The Jury before Statehood

The idea and practice of resolving criminal and civil disputes by trial before one's peers predates Oregon statehood. The oldest hint of an Oregon proto-jury trial dates to 1835. A gunsmith, Thomas Jefferson Hubbard, killed a tailor. In what may have been an ad hoc coroner's jury on Sauvie Island, jurors were empaneled and a magistrate appointed. The jury acquitted Hubbard on a justifiable homicide defense and gave him a certificate of innocence. Howard McKinley Corning ed., Dictionary of Oregon History 119 (1989); Charles H. Carey, General History of Oregon 317, 332 (1971) (noting the acquittal as an "unofficial investigation"); Ronald B. Lansing, Juggernaut: The Whitman Massacre Trial 3 (1993) (hereinafter "Juggernaut") ("[T]hat was no proper trial.").

Not all frontier murders or disputes were resolved by juries. But the Hubbard trial demonstrates an early inclination to continue a learned tradition of gathering information and producing a written verdict in criminal cases.

The next decade, the non-native American settlers in Oregon Country formalized the right of trial by jury. Carey, General History of Oregon at 336. In 1843, Hubbard (the defendant acquitted of homicide in 1835), was among 12 men elected to serve on a committee to organize a formal meeting at Champoeg. The purpose of the committee was to begin organizing a political structure in Oregon Country. Dictionary of Oregon History at 119; Carey, General History of Oregon at 328. The settlers formed a provisional government and created an organic law that existed from 1843 to 1848, with amendments during those years. See Carey, General History of Oregon at 317-405; Donald C. Johnson, Politics, Personalities, and Policies of the Oregon Territorial Supreme Court, 1849-1859, 4 Envt'l L 11, 13 (1973); Ronald B. Lansing, Oregon's Provisional and Territorial Supreme Court, 46 Willamette L Rev 407, 408-09 (2010).

Article I, section 2, of that early organic law protected the right to a jury trial: "The inhabitants of said territory shall always be entitled to the benefits of the writ of habeas corpus and trial by jury." Organic Law of the Provisional Government of Oregon, reprinted in Matthew P. Deady ed., General Laws of Oregon 46 (1843-72); Lawrence T. Harris, History of the Oregon Code, 1 Or L Rev 129, 137, 140 (1922) (noting that Iowa laws were adopted in 1843 because someone had an Iowa code and the common law of England was adopted if no statute had been adopted).

That jury right was actively exercised. Oregon records show that grand juries and 12-man trial juries were formally convened at least as early as 1844. Oregon Supreme Court Record 6 (Portland, Stevens-Ness 1938); Lawrence T. Harris, A History of the Judiciary of Oregon, ("A Paper Read Before the Oregon Bar Association on November 19, 1917"), reprinted in Oregon Supreme Court Record at 78-79, available at http://ir.library.oregonstate.edu/xmlui/handle/1957/12515 >. Between 1844 and 1848, grand juries indicted and trial juries rendered verdicts in cases for assault, challenging another to a duel, adultery, disturbing a family, tearing a promissory note, perjury, larceny, lewdness, and destroying a house, among others. Oregon Supreme Court Record at 32-38.

In 1848, an act of Congress created the Territorial Government of Oregon, replacing the earlier provisional...