Tracking Courtroom History in 'The Trial'
SHEILAH KAST, host:
In small towns and large cities, in county courthouses and federal courts, trials are held every day with a routine finely honed over centuries of Anglo-Saxon jurisprudence. And while questions are raised about the fairness of many trials, remarkable similarity exists from courtroom to courtroom, state to federal, and between American and British courts.
Lawyer Sadakat Kadri practices on both sides of the Atlantic. In his new book, "The Trial: A History, from Socrates to O.J. Simpson," Kadri scans 4,000 years of courtroom drama. He spoke with us last week from the studios of the BBC in London. Our conversation began with a lesson in the early religious influences on today's jury trials.
Mr. SADAKAT KADRI (Author, "The Trial"): In earlier times, the church used to supervise most trials by way of trial by ordeal. What happened there is that defendants would, for example, be instructed to immerse their hand in a cauldron of boiling water, and the priest would then examine the hand after three days and see whether it had healed. If it hadn't healed, then it would be decided that God had decided not to intervene with a miracle and the person would be condemned. If the priest said that it had healed, then the opposite would be the case; it would be said that God had intervened with a miracle and the person would be set free. So the idea then was that God was watching over every instance of justice.
KAST: Urge to vengeance. Is that primarily what society is searching for in a criminal trial?
Mr. KADRI: Well, I think that over the centuries, that the trial and justice generally has been torn between the two very contradictory impulses. On the one hand, there has been the urge to condemn people who've committed crimes. But there's also been a terrible fear that it might be the wrong people who are being convicted, and that contradiction has oscillated over the centuries. One thinks of the witch trials as examples where the urge to condemn was obviously supreme. But in the last couple of centuries, things like the presumption of innocence and generally due process have come to assume far more importance. But I do think that today, both of those impulses are still in evidence.
And what I say in my book is that over the last 50 years, there's been a very definite swing in the pendulum towards an urge to convict once again. If one thinks, for example, just about trial movies, back in the 1950s and the 1960s, all the trial movies of note, from "Inherit the Wind" and "12 Angry Men," "Judgment at Nuremberg"--any trial movie you want to think of--"Perry Mason," "Petrocelli" on TV as well--they were all about the defense lawyer. But now it's almost impossible to imagine the defense lawyer as a hero in movies. But certainly if you look at television now, on "Law & Order," it's the prosecutors who are the heros, and defense lawyers are shysters at best and liars and criminals at worst.
KAST: How did the practice of a jury trial come about?
Mr. KADRI: Well, the jury was born out of a very ancient ritual. What used to happen is that defendants would bring along their friends to the priest and all the friends would swear an oath, swear that someone was--hadn't committed the crime concerned. The victim would also bring his friends along. And there were various rules, but obviously that wasn't particularly satisfactory because all it depended on was the numbers of people who would swear to a person's innocence or guilt.
What then happened in 1215 is that trial by ordeal was abolished by the pope. The English monarchy needed to find an alternative to trial by ordeal, so they simply adapted the old ritual of ordeal, ordering that instead of someone bringing along their friends to swear an oath, they'd be presented with a panel, and that panel would then swear as to the innocence or guilt of the person concerned.
KAST: You write that the most significant jury trial in history--and you're dealing with Western history--took place in London in 1670. William Penn--who later came to the US and founded Pennsylvania--and another Quaker were charged with `speaking to a tumultuous assembly.' What was so significant about that case?
Mr. KADRI: Well, what happened is that both men were charged. It was a time of great tension between non-conformists and the recently restored royalist government, and the judge effectively ordered the jurors to convict. They refused to do so, and for three days they were held in prison. Eventually, he relented, but insisted that they pay a fine, and four of the jurors simply refused to do so. So for another two months, they stayed in the prison--and this was at a time when one in 10 prisoners die while they were awaiting trial--until they were eventually released. But the effect of their bravery was that no judge would ever again be able to tell a jury to convict someone, and it also established ideas of justice that would go on to influence notions of justice all over the world.
KAST: In your judgment, has the criminal trial evolved into something noble? Are you optimistic about it?
Mr. KADRI: I think that the criminal trial has two contradictory faces. On the one hand, it does serve still to validate vengeance as it always has throughout history. On the other hand, it also operates as a reminder that before we condemn anyone, we should pause. And history is filled with examples of why that should be, from the witch trials to Stalin's show trials to the trials of plenty of Southern blacks in the 1930s and the 1940s. Those two impulses have oscillated, again, throughout the history of the criminal trial. I don't know whether I'm optimistic. What I do think is that it's very important that due process be allowed to run its course and that trials do continue to hold back the impulse to condemn.
KAST: And do you think that's being done?
Mr. KADRI: I think that in the last 50 years in the United States, there's been a very distinct swing towards conviction. We see things like minimum sentences being introduced in the 1970s, three strikes and you're out introduced in the 1990s. You now have, for example, a prisoner in California who is going to be in jail until 2046 for stealing $154 worth of children's video cassettes from a Kmart store. I think that there is a very real danger--particularly in the United States, I have to say--the urge to condemn is coming out on top. But--and, of course, one also thinks about Guantanamo Bay, where trials aren't even being held.
Of course, one sees similar developments on this side of the Atlantic. I would argue that they are less pronounced because we do have judicial oversight, for example, in terms of the suspected terrorists that we're holding. But I am pessimistic, yes.
KAST: Sadakat Kadri's book "The Trial" is subtitled "A History, from Socrates to O.J. Simpson," published by Random House. He joined us from the BBC in London.
Thanks very much.
Mr. KADRI: Thank you.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.