June 15, 2004

Trial by ordeal is the name given to various procedures used by Germanic tribes in medieval Europe, designed to determine criminal guilt or innocence. For example, the defendant would be forced to walk nine steps while carrying a hot iron; if the burns on his hand blistered, then he was declared guilty. Or the defendant would be bound and tossed into a pond; if he sank, he was found innocent.

Despite being a confused mixture of pagan magical thinking and primitive Christianity (the tribes were recent converts, and church authorities were unwilling to interfere with their ancient customs), the trial by ordeal still featured a certain logic.

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The idea was that an all-seeing and wholly good God would not allow an innocent person to be punished, and would intervene, via a miracle if necessary, to keep that from happening.

In our own legal system, faith in divine intervention has been replaced by faith in what is usually referred to as "the rule of law." The idea is that sufficiently rational bureaucratic procedures will produce accurate results, with little or no possibility of error (Recently, I heard a Denver district attorney claim that she had never seen her office convict an innocent person.)

Faith can be a beautiful thing. Still, in a nation in which 2 million people are currently imprisoned, a blind faith in the system that put them behind bars can be a dangerous thing. Consider, for example, the upcoming trial of Kobe Bryant.

Imagine for a moment that one had to explain Kobe Bryant's trial to someone who knew nothing about our laws. An accurate description would sound something like this: "Bryant has been charged with rape. The only witnesses to the event are the accused and the accuser. Both agree sex took place. The accused claims it was consensual; the accuser claims it was coerced.

"Thus the case comes down to a judgment about which story is true. This judgment will be made by a group of 12 persons, who are chosen through a process designed to ensure that anyone who has any specialized knowledge about the case's subject matter will be barred from participating.

"Furthermore, the stories of the accuser and the accused will be presented to this group by people who are trained to manipulate the perceptions and emotions of the group so as to make each story seem credible.

"After several weeks or months of this, the group is expected to reach a consensus about whether the accused or the accuser is telling the truth. If they make a mistake, then either an innocent man will spend much of the rest of his life in prison, or a crime which is considered only slightly less serious than murder will go unpunished."

From a rational bureaucratic perspective, this process doesn't make a whole lot of sense. Psychologists tell us that, even under the best of circumstances, the average person isn't very good at judging human credibility - and a modern criminal trial is a long way from the best of circumstances.

Indeed, there's a good case to be made for the claim that the medieval trial by ordeal was in its own way more rational than our own trials by ordeal. If you believe in God, then by definition putting your faith in God makes sense. The same cannot be said for a similar belief in the rule of law.

Nevertheless, I've often heard it said, by lawyers and laity alike, that they have "faith in the jury system." Perhaps this is because, to paraphrase Voltaire, if faith in the jury did not exist, it would be necessary to invent it.

Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.

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