Outline

1. History of Criminal ProcedureProf. Dan KlermanUSC Law SchoolLA County Bar AssociationMCLENovember 3, 2012

2. Outline • Rex v Hugh (c. 1293) • History of: • Prosecution • Trial by Jury • Right to Counsel • Self-Incrimination • Proof Beyond Reasonable Doubt

3. Prosecution • Private Prosecution (“Appeal”) (7th - 13th centuries) • Victim or member of victim’s family prosecuted most crime • Cases often settled for money • Jury accusation (“Presentment”) (12th-14th centuries) • 12 people from hundred accused their neighbors of crimes • Hundred is group of villages. Much smaller than county • Self-informing jury • Private prosecution (“Indictment”) (15th-19th century) • Individuals make accusations which are screened by grand jury of county • Jury has some local knowledge, but increasingly relies on information presented by individuals and justices of peace • Justice of Peace provides some assistance to prosecution • Public prosecution (19th-21st century) • System of individual accusation breaks down, especially in cities • Police and later public prosecutors make most prosecutions • Grand jury and later preliminary hearing screen accusations

4. Trial by Jury • Before 1215, most criminal cases resolved by ordeal • Ordeal was religious ritual, choreographed by priests, that invoked divine intervention in natural world • In 1215, 4th Lateran Council forbade clerics to participate in ordeals • Priests were essential, so king had to find alternative • Henry III (1219) instructed his judges to jail those “of whom suspicion is held that they are guilty” of serious crimes • Clearly temporary – not enough jail space • Judges experimented • Asked defendant if would consent to verdict of (presenting) jury • Later coerced defendants to consent • “peine forte et dure” – stones piled on defendant until consented or died • Jury was self-informing • Trial jury was same as presenting jury until statute in 1352 • Little or no evidence presented in court

5. Trial by Jury II • Self-informing jury required jurors with local knowledge • 14th century institutional changes reduced local knowledge • Shift from eyre (no more than 1 every 4 years) to jail delivery (2 times per year) • Made it impracticable to summon 4 men and reeve from each village • Made recruiting even jurors from hundred difficult • Black Death (1346) made it harder to recruit jurors • Separation of presenting and trial jury (1352) barred 12 knowledgeable jurors • So jurors had less prior knowledge • Victims and defendants started telling their stories and bringing witnesses

6. Right to Counsel • No right to lawyer (even if could pay) before 17th century • Prosecution didn’t ordinarily have lawyer either • Political turmoil of 17th century led to politically tinged trials • Different from ordinary trials • Lawyers for prosecution; High status defendants; Biased judges • Some acquittals but also some notoriously unjust convictions • Brought problems with criminal procedure to attention of Parliament • Treason Act of 1696 • Right to consult freely w/ counsel before trial and to have lawyer at trial • Other defendants’ rights • right to present witnesses on oath, to compulsory process, to see indictment • But rights restricted to defendants in treason trials • Rights extended by judges to other defendants in 18th & 19th c. • Partly because prosecutors started hiring lawyers

7. Right Against Self-Incrimination • 3 phases in development • I. Right not to accuse self (medieval) • Right developed in canon law (ecclesiastical law) as part of inquisitorial procedure • Distinction between confession (self-accusation) and inquisition (accusation & questioning by judge) • Inquisition permissible only if “mala fama,” credible witnesses or suspicion of crime • Not relevant to ordinary criminal trial, because 14th century statutes interpreting Magna Carta required indictment or appeal • II. Right not to answer incriminating questions under oath (early modern) • Defendant’s statement to Justice of Peace not under oath • Defendant’s testimony at trial not under oath • III. Right to remain silent (modern) • Possible only when defendants have lawyers

8. Burden of Proof I • Burden of Proof not formally stated until late 18th Century • Nevertheless, understood that burden relatively high • Sir Thomas More (16th c.), a juror must have “a sure and certain persuasion belief in his own conscience.” • Matthew Hale (17th c.) “it is better five guilty persons should escape unpunished, than one innocent person should die.” • Various formulations of standard • “Satisfied conscience” • Term from moral casuistry which means “full persuasion” • “moral certainty” • Sort of certainty that was attainable in human and empirical matters • Lower, of course, than level of certainty attainable in mathematics or logic • Related to Christian idea that juror who falsely convicted put his own soul in danger

9. Burden of Proof II • Proof beyond reasonable doubt • Boston Massacre trials (1770) • First used in England in 1783 • But no sense that different from “moral certainty” or “satisfied conscience” • Only gradually replaced other formulations • Miles v US (1880) “The prisoner’s guilt must be established beyond reasonable doubt” • In re Winship (1970) • “moral certainty” used a recently as 1994 in Nebraska to define “beyond reasonable doubt” • Supreme Court held not reversible error. Victor v Nebraska (1994).