1. History of Criminal Procedure Prof. Dan Klerman USC Law School LA County Bar Association MCLE November 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”) (7 th - 13 th centuries) –Victim or member of victim’s family prosecuted most crime –Cases often settled for money Jury accusation (“Presentment”) (12 th -14 th 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”) (15 th -19 th 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 (19 th -21 st 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, 4 th 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 14 th 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 17 th century –Prosecution didn’t ordinarily have lawyer either Political turmoil of 17 th 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 18 th & 19 th 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 14 th 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 18 th Century Nevertheless, understood that burden relatively high –Sir Thomas More (16 th c.), a juror must have “a sure and certain persuasion belief in his own conscience.” –Matthew Hale (17 th 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).