Christopher Donovan: Trial By Ordeal — Not as Primitive as It Sounds?

Christopher Donovan: An interesting article in the Boston Globe describes how the medieval practice of “trial by ordeal” might have actually worked pretty well. 

Basically, it came down to the social order created by widely-held beliefs — the logic or truth of those beliefs aside.  If everyone uniformly believed that God would punish them for a crime, fewer guilty persons would go through with an ordeal.  So you got a good sense of who’d been bad, and who was falsely accused.  It would have taken a stiffly anti-social European to fool the system. 

Today’s criminal jury trial system might even be less reliable than sticking a hand in boiling water as an indicator of truth.  In multiracial America, there are far fewer uniformly held beliefs.  A system in which a black or Hispanic defendant feels aggrieved by the pressures of living in a “White society” surely feels less moral compunction about lying or fooling the system.  If evil White police, prosecutors, judges and juries are staring you down, who cares?  You’re justified in lying. 

And, consistent with Prof. Robert Putnam’s observation that even intra-racial relations are harmed in a multiracial society, guilty White defendants might feel similarly.  If society is nothing but a crazy mishmash of clashing ethnicities, why not have a little party in the midst of the confusion? 

This is to say nothing of the craziness surrounding the racial makeup of the jury.  As O.J. Simpson found, having black jurors is very handy when the evidence against you is overwhelming.

As a civil litigator, I watched as race — of the plaintiff, defendants, witnesses and juries — absolutely obliterated anything else going on.  Like, say, the facts.  There was no widely-held belief that a barely-injured plaintiff should be denied a financial windfall — no, it was a fellow Hispanic woman looking to get a chunk of white society’s cash, so by all means, help her.  It was a capricious system that often had little to do with witnesses, cross-examination or persuasive arguments by attorneys.  It was a race racket. 

So, while the “trial by ordeal” had truth as its aim (and possible result) in racially homogenous European societies, the trial by jury’s truth-finding function is often subverted in multiracial America.

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