The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited and in practice reduced, in the federal courts severely. The article reveals that this limitation developed with the advent of courts of appeal with separate personnel and especially of appeals in criminal cases.
Lack of appeal, or limited appeal, has been a distinctive trait of common law systems, particularly in criminal cases. There was no appeal as of right in criminal cases until 1907 in England, and 1889 in the federal courts. In the federal system, the early movements to allow appeals in criminal cases and to limit judicial comment on evidence focused on controlling a particular judge: Isaac Parker, U.S. District Judge for the Western District of Arkansas, who presided over more than 100 trials for capital crimes occurring in the Indian Territory from 1875 to 1896.
GW Paper Series
GWU Law School Public Law Research Paper No. 2016-20; GWU Legal Studies Research Paper No. 2016-20
Lerner, Renee Lettow, How the Creation of Appellate Courts in England and the United States Limited Judicial Comment on Evidence to the Jury (2016). 40 J. Legal Prof. 215 (2016).; GWU Law School Public Law Research Paper No. 2016-20; GWU Legal Studies Research Paper No. 2016-20. Available at SSRN: http://ssrn.com/abstract= http://ssrn.com/abstract=2797310