“Juries on Trial”
To the Editor:
Richard A. Posner’s views [“Juries on Trial,” March] on the role of trial by jury and how juries should be handled by trial judges are, I believe, consistent with the experiences of most federal judges. There is an ingredient to trial by jury which he omits, however, and which is not well understood or practiced by most judges, state and federal, trial and appellate. Justice Horace Gray in 1899 said it best in Capitol Traction Co. v. Hof, a United States Supreme Court decision reported at 174 U.S. 1:
“Trial by jury” in the primary and usual sense of the term at the common law and in the American Constitution . . . is a trial by a jury of twelve men, in the presence and under the superintendence of a judge empowered to instruct them on the law and to advise them on facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.
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