Games v. Stiles ex dem Dunn, 39 U.S. 322 (1840)

Commentary by Jon Roland

There is a fundamental problem in the way the dictum in this case was expressed, in the following words:

... a Court may give their opinion on the evidence to the jury, being careful to distinguish between matters of law and matters of opinion in regard to the facts. When a matter of law is given by the Court to the jury, it should be considered as conclusive; but a mere matter of opinion as to the facts, will only have such influence on the jury as they may think it is entitled to.

The problem lies in the way that later courts seized on this dictum as license to exclude arguments on points of law from the presence of the jury. It ignores the fact that, to reach a just verdict, a jury must review the law as well as the facts in a case, because in a constitutional republic, what is the law is also an issue of fact, and the bench's opinion is only one opinion that, if it were properly treated, would be considered as expert testimony, subject to rebuttal and cross-examination, in the presence of the jury, whose verdict would reflect their opinion on the arguments on points of law.

That doesn't mean, of course, that the role of the jury is to issue rulings on motions, write opinions on law, or control the proceedings. Their role is to render a verdict, but if the verdict is general, especially in a criminal case where the verdict is "guilty" or "not guilty", then questions on the law are almost certainly an issue, including the question of whether the court has jurisdiction, and whether the law is applicable, and must be considered by the jury in reaching a verdict.

It was at about this time that the need for a complete record of argument was seen as necessary for appeals led to the demand by the trial bench for the litigants to submit pleadings and briefs on points of law to the bench in advance of the commencement of the trial. What was needed at that point was to provide copies of all such pleadings to the jury, and also make the same arguments orally in their presence. In part, perhaps, because there were no copiers in those days, and making copies for all the jurors was expensive, that was not done, until it became established that it did not need to be done, then that it was improper to do so, and finally resulting in the practice of the bench to penalize any lawyer or litigant who might attempt to provide copies of pleadings to the jury. Thus, this case representes the triumph of Mansfieldism in U.S. jurisprudence, which later culminated in Sparf & Hansen v. United States, 156 U.S. 51, 64 (1895).