Child of the jury

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by Daniel Song

If you are a church-goer who actually listens to sermons, you may remember this story about King Solomon (1 Kings 3:16-38).
God visits newly crowned King Solomon in a dream and offers him anything he pleases. In the usual manner of God's selfless subjects, King Solomon asks for an understanding heart to judge people, to discern between good and evil. In return for this anticipated selfless response, God grants Solomon's wish and gives him unmatched intelligence and wisdom, and a bonus of money and fame.
One day, two women bring a baby boy before King Solomon. Their stories are the same. They each gave birth to a baby boy (presumably at the same time), they each slept in the same house (perhaps in the same bed), and they each slept with their precious sons.  One night, one woman smothered her son to death, and in anguish and jealousy, switched the dead baby with the other.
When they appear before King Solomon, each declares "ownership" over the living boy. King Solomon has to exact justice. In so doing, he proposes to take his sword and cut the baby in half so each woman can receive her fair share. When one woman cries out, "Please do not kill him!" and asks the king to give the other woman the child, wise old Solomon knows who the real mother is.
Today, judges don't exact justice with such brazen and draconian methods. Our judges are required to take a more rigorous approach to the search for truth. Solomon's reasoning, while attractive, still rests upon the assumption that the woman's reaction could only be explained by motherly instinct. Our judges, on the other hand, are to avoid assumptions and speculation when determining the guilt of an accused.
In 1898, James Bradley Thayer called the law of evidence "the child of the jury system." Our laws of evidence are meticulous and demanding for good reason - they create reliable means for the public to discover the truth. Nevertheless, they constantly endure the barrage of media invectives.
I can tell you from experience that our justice system often struggles to maintain its legitimacy and stability under the straining glare of the mass media. This is especially so for murder trials, the majority of which are decided by a jury - 12 citizens who represent the public interest in the case. 
Recently, I had the pleasure of watching the closing arguments of the Crown and defence counsel in a murder trial. The Crown was the first one to address the jury. Before she commenced, a throng of journalists entered the courtroom, and prepared their ink and paper. The writers scribbled furiously throughout the Crown's submissions, right down to the Crown's final closing statement. Then defence counsel stood up. And all the journalists left.
Of course, the next morning, the newspaper articles authored the "facts" of the case, predictably inflammatory and indignant. In this way, the media amplifies the Crown's voice, and as is often the case, a stentorian voice echoes with a ring of truth. Small wonder, then, why the public denounces our system of justice when an accused "gets off" on murder charges.
The irony is that the effect of public outrage actually reinforces the media's "fact finding" methods. Armed with the media's filtered truth, we wonder, "What travesty of justice is this?" Unfortunately, when we are mad, we question justice rather than the truth.
But let's consider how far we've come. In the 11th century, you were innocent if you could walk over red-hot ploughshares holding a red-hot iron without getting burned. In the 16th and 17th centuries, you were innocent of witchcraft only if you drowned to your death. Throughout European history, you were innocent if you were adept at using a sword and shield. 
Considering the ridiculous nature of trial by ordeal or trial by combat, King Solomon's system of hearing out both parties "with an understanding heart" seems truly wise.

Daniel Song is a student-at-law with Tarrabain and Company in Edmonton, Alberta.

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