The First Jury

Okay, so it wasn’t actually the first jury. And, okay, it’s a (wonderful) Greek story, not an actual case. But Aeschylus’s Oresteia is a magnificent work we all ought to know, and that goes double for those of us in criminal justice. It is not only the oldest surviving description of a jury trial, it is the Greek jury’s very origin story—a story of shifting from clan vengeance to a democratically-controlled State monopolization of violence. And it is the only surviving Classical Greek trilogy, first performed at—and winning first prize at—the Great Dionysia. In a word, it is a gem, and, in this brief article, I share its background, plot, and basic criminal justice moves.

As a matter of literature, the three plays are magnificent. (I relied upon a translation by Sarah Ruden.) For those who enjoy Shakespeare, or even who merely appreciate Shakespeare, it will be immediately apparent how much he borrowed from these Greek masters (most likely, experts tell us, as filtered through the Romans). I particularly enjoyed the character of Clytemnestra, a badass whom I would not have wanted to cross, and, because I am foremost a dad, aspects of Libation Bearers featuring Electra, who is also quite the badass in the hands of Aescyhlus’s contemporaries, Sophocles and Euripides. (And of course a much later buddy of Daredevil… I know, but she’s Greek too, and the naming by Frank Miller was not happenstance.) Athena is also a strong character running the show in the culminating Euripides, as are the titular Furies. Just like Shakespeare, plot points can be ‘contrived’ if you read for that sort of thing, but read for humanity and dialogue, Aeschylus was a master.

As for criminal justice, the three plays wonderfully convey the improvement of State jury trial as compared to the interminable bloodshed of tit-for-tat clan vengeance. And the ultimate verdict, rendered by goddess Athena, is one of mercy. And while I’m of course a big fan of what I consider such ‘Senecan mercy,’ Aeschylus beat Seneca to the punch here, and I think there’s significantly more that might be drawn from this. Given the rather silly origin of the Anglo-American jury (best told by Patrick Devlin), and given the modern criminal law’s emphasis on proving all elements of crime beyond a reasonable doubt, I believe there is wisdom of Aeschylus that could better our current system of criminal verdicts. But I decided to let that wait a second paper (or perhaps series of blog posts), so I won’t rush it out here.

Finally, the Supreme Court in Kian v. Florida has agreed to decide whether our juries must constitutionally consist of the mythic number of twelve. I suspect, alas, that championed by fit-for-Cervantes Gorsuch, the Court will decide they must. That’s quite dumb, I think; while I’d opt for significantly larger juries more akin to those of the Classical Greeks and later Romans (perhaps also a topic for future posts), I have no patience for the type of numerology that insists on precisely twelve. But, whatever the case, the Court at least ought to give Aeschylus some love for his own twelve-person jury, because he has decent claim to ‘starting it all.’