Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2016, Vol. 42, No. 3 | Page 13

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judge was particularly helpful to the jury. If
there were objections, they were handled
at the bench. Judge Griffin would turn to
the jury and ask us to begin our “white
noise,” so what was said at the bench was
not overheard by anybody. The jury was
very obliging, everyone talking or listening
until order was resumed, on cue. The jury,
consisting of people who were experiencing their first trial, performed its role. The
system worked.
The last annual report of the Judiciary showed the Criminal Division disposed
15,871 cases of felonies and misdemeanors
in FY15. Misdemeanors outnumbered felonies two to one. There were 117 jury trials
that year, and 25 bench trials, or less than
one percent of the cases completed. Most
of the rest were dismissed or resolved by
plea bargains.
In the Civil Division, there were 7,000
cases disposed of in 2015, and 3,578 new
cases added, not counting Small Claims.
There were 22 jury trials, 745 court trials,
513 cases decided by summary judgment,
1,518 dismissed, 1,642 defaulted, 550 resolved by consent judgment, and 1,938
cases withdrawn.2
That’s a total of 139 jury trials in Vermont
for the year. Statistics on the number of jury
cases that resulted in verdicts of guilty or
not guilty were regrettably not found in the
reports of the judiciary. The low number is
surprising, considering the central role of
the jury in the 18th and 19th century. The
evolution of the judicial system away from
the jury is evident from the numbers.

Ruminations

our verdict, that the charges are not evidence, the presumption of innocence, circumstantial evidence, the credibility of witnesses, the defendant’s right to testify, burden of proof, and reasonable doubt. Then
the charges were recited, and the essential
elements of each of the two offenses addressed. “Gross negligence” was defined,
among other critical terms. There was a
paragraph on jury deliberations, which included the admonition not to “surrender
your honest opinion as to the weight or effect of evidence solely because of the opinions of your fellow jurors, or for the mere
purpose of returning a verdict.”
Each juror was given a copy of the instructions before the judge read them, and
he encouraged us to follow along with him,
as he believed information is more likely retained when it is both read and heard together.1
At this point, two jurors, including myself,
were excused, as noted above, labeled “alternates,” although this was the first either
of us knew about it. The jury deliberated
and reached a verdict of not guilty. There
was a reasonable doubt.
Here is my private deliberation on the
evidence. The claim that the passenger
door didn’t open was unanswered by the
State. The police could have had that information. That it didn’t come up at trial was
doubt one. The color of the shirts was an issue, but it wasn’t used, beyond Officer Higgins’s testimony. The other witnesses could
not tell who was driving, who came out of
which side of the car, who was running faster than the other through the field. That
was doubt two. There was just not enough
evidence to base a finding that the defendant was driving. Only Officer Higgins’s
side view of the car while driving in the
other direction was offered for that. Three
doubts of that size, and I would have voted
to find the defendant not guilty.
But this is a good illustration of why the
constitution and history bring twelve people together to decide the facts presented to a jury. No doubt I missed things. No
doubt others would correct me in the jury
room, or fill in details I’ve forgotten. Decisions of this consequence, if left to one
juror, would be an intolerable burden, but
when spread out among eleven others the
verdict becomes communal, the mixed
feelings of guilt, self-righteousness, and
doubt diluted.
A unanimous verdict is a high prerequisite for conviction, and reasonable doubt,
so hard to define, is an even higher wall, it’s
a wonder anyone is convicted of a crime.
I came to the trial with little in the way
of experience in the criminal law, other
than dimly-recollected shards of information from law school. What I saw there was
a well-oiled machine, efficient, respectful,
civil. The players knew their parts, and the

The Idea of a Jury

In England the constitutional trial by
jury was ever esteemed a privilege of
the highest and most beneficial nature. In magna charta this mode of trial
is insisted on as the principal bulwark
of liberty. Judge Blackstone, commenting on trial by jury, says: “The liberties of England can not but subsist
so long as this palladium remains sacred and inviolate, not only from all
open attacks, (which none will be so
hardy as to make,) but also from all secret machinations, which may sap and
undermine it, by introducing new and
arbitrary methods of trial by justices of
the peace, commissioners of the revenue and courts of conscience.”3
These are the words of Judge William C.
Wilson from 1869, heralding the right to
a trial by jury, and hoping it would never
change. It has changed. As the numbers illustrate, there are far more trials and hearings before judges than juries, and precious few jury trials. Even before the arrival
of plea agreements, the categories of disputes that are not tried by jury enlarged
THE VERMONT BAR JOURNAL • FALL 2016

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