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The in-house legal world was relieved in July, when former Tyco International, Ltd., general counsel Mark Belnick was acquitted of charges that he stole millions from the company. Though Belnick was off the hook, the two-month-long trial must have been an ordeal for him. He was grilled on the stand for a week, and then had to wait for five long days while the jury debated his fate. Trial by jury may be an ordeal, but ironically, that is exactly what it was supposed to replace. For centuries in medieval Europe, guilt and innocence were determined by the “ordeal,” a test where the accused was subjected to various torments to determine his guilt or innocence. One gauntlet was the ordeal by water: When an accused woman was thrown into a body of water, if she floated, she was clearly a witch. Another popular method was ordeal by fire, in which an accused man had to walk nine paces with a red-hot iron in both hands. If the resulting burns didn’t heal in three days, he was guilty. The Fourth Lateran Council of 1215 spoiled all the fun by banning these practices. Suddenly, authorities throughout Europe had to find an equally scientific way to determine innocence and guilt. In England, they hit upon the idea of canvassing the opinions of 12 local men. The word “jury” emerged in the Anglo-Norman dialect of the time, coming from the Old French word juree, and further back, from the Latin jurare, meaning “to swear.” Why is a jury sworn? Originally, it’s because jurors were also witnesses who were required to testify from personal knowledge, if they had it, or, more likely, to simply repeat neighborhood gossip. It wasn’t until the sixteenth century that witnesses were compelled to testify at trial with a subpoena (“under penalty”), which finally allowed jurors to sit back and listen to other people talk. Although jurors no longer testify, they still must take an oath to be properly impaneled (from the English “panel,” deriving from the Latin pannus, or piece of cloth). In the trial of Martha Stewart, the defense argued (without success) that one juror, Chappell Hartridge, lied about his impartiality in order to get on the jury with the aim of convicting Stewart. The notion that jurors are often biased is not new. In their 1875 operetta Trial by Jury, Gilbert and Sullivan lampooned juries’ prejudices. Before the trial even begins, the jury shakes its fists at the defendant and sings: Monster, dread our damages. We’re the jury! Dread our fury! Such common spirit among jurors seems to be increasingly rare, in this country at least. A “hung jury,” one that cannot arrive at a verdict, happens about 8,000 times a year in state and federal courts. In the trial for Belnick’s former colleagues, Dennis Kozlowski and Mark Swartz, the majority of jurors were reportedly set to convict them. But one juror held out for the defense; the case ended in a mistrial. A hung jury has nothing to do with a hanging judge. In fact, it’s quite the reverse, since a hung jury can’t make up its mind, while a hanging judge is thought to be a little too eager to make up his. Still, the word “hung” has led to some bogus etymologies. One legal humorist has suggested that the hung jury was born in the Old West — where jurors who were taken in by shyster lawyers would be hanged in punishment. The phrase does not, in fact, come from the Old West. But it is American in origin. The earliest use of the term in a law report appears in an 1821 case from the South, Evans v. McKinsey. The phrase seems to derive from the sense of “hung” to mean caught, suspended, or delayed (“I got hung up at the office”). Finally, there’s one use of the word “jury” that, oddly enough, has absolutely nothing to do with juries, or the legal system at all. The term “jury-rigged,” meaning assembled in a makeshift manner, is an eighteenth-century nautical term, deriving from the Latin adjutare (to aid), from which we also get “adjutant.” Of course, I cannot deny that shady lawyers occasionally try to “rig” juries with bribes. But that brings us back to where we began — with ordeals. Adam Freedman, a senior associate at Sculte Roth & Zabel, writes the “Lingo” column for the New York Law Journal Magazine, a Corporate Counsel sibling publication.

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