Hostname: page-component-78c5997874-fbnjt Total loading time: 0 Render date: 2024-11-09T16:32:05.214Z Has data issue: false hasContentIssue false
  • English
  • Français

The Moralization of Guilt in Late Imperial Russian Trial by Jury: The Early Reform Era

Published online by Cambridge University Press:  28 October 2011

Girish N. Bhat
Get access Rights & Permissions [Opens in a new window]

Extract

Ever since the official promulgation of the judicial reform statutes of 1864 in late imperial Russia, a scholarly commonplace has been the reform's contribution to the remarkable emergence of several generations of brilliant Russian trial lawyers and an internationally famous tradition of outstanding judicial oratory during the half-century preceding the Bolshevik revolution. This impressive display of judicial learning and courtroom artistry occurred in the context of Western-style trial by jury, the reform's most daring innovation. Introduced in 1866 after two years of energetic preparation, Russia's system of trial by jury bequeathed to scholars the most powerful emblem of the post-1864 Russian legal order: the courtroom confrontation between the defense attorney (zashchitnik) and the state's prosecutorial agent, the procurator (prokuror). In this judicial clash, the defense counsel has represented the eloquent, keen-witted, Western-educated champion of the individual and even the “defender of public interests.” The procuratorial representative has come to embody the interests of a regime whose relentless and often undisguised statism belied the reform statutes' open proclamation of the principles of legality and the “rule of law.”

Type
Articles
Information
Law and History Review , Volume 15 , Issue 1 , Spring 1997 , pp. 77 - 113
Copyright
Copyright © the American Society for Legal History, Inc. 1997

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. The famous phrase of P. A. Aleksandrov, defense attorney in the Vera Zasulich trial, held in late March 1878.

2. For varying examples of this dichotomous image, see Kucherov, Samuel, Courts, Lawyers and Trials Under the Last Three Tsars (New York, 1953), 197–268Google Scholar, 297–316; Vydria, M. M., ed., Sudebnye rechi izvestnykh russkikh iuristov, [hereafter cited as Sudebnye rechi] (Moscow, 1956)Google Scholar, introduction; Mikhailovskaia, N. G. and Odintsov, V. V., eds., Iskusstvo sudebnago oratora [here after cited as Iskusstvo] (Moscow, 1981)Google Scholar, introduction; Zakharov, P. M. and Cherkashina, E. P., eds., Rechi izvestnykh russkikh iuristov [hereafter cited as Rechi iuristov] (Moscow, 1985)Google Scholar, introduction; Wortman, Richard, The Development of a Russian Legal Consciousness (Chicago, 1976), 3, 267, 269–89CrossRefGoogle Scholar; Huskey, Eugene, Russian Lawyers and the Soviet State (Princeton, 1986), 11–12Google Scholar, 14, 18; Lincoln, Bruce W., The Great Reforms (Dekalb, Ill., 1990), 106Google Scholar, 116–17, 162–63, 188–89.

3. For an exploration of the enormous complexity of both the theory and practice of the “rule of law” in late imperial Russia, see Wagner, William G., “Tsarist Legal Policies at the End of the Nineteenth Century: A Study in Inconsistencies,” Slavonic and East European Review 14.3 (1976): 371–84Google Scholar; Wortman, Development of a Russian Legal Consciousness; Raeff, Marc, The Well-Ordered Police State (New Haven, 1983)Google Scholar; Whelan, Heidi, Alexander III and the State Council: Bureaucracy and Counter-reform in Late Imperial Russia (New Brunswick, N.J., 1982), 83–97Google Scholar; Walicki, Andrzej, Legal Philosophies of Russian Liberalism (London, 1987)Google Scholar, introduction; Crisp, O. and Edmondson, L., eds., Civil Rights in Prerevolutionary Russia (Oxford, 1989)Google Scholar; Engelstein, Laura, The Keys to Happiness: Sex and the Search for Modernity in Fin-de-Siècle Russia (Ithaca, 1992), especially 19–28Google Scholar, 35, 84–87; and Zelnik, Reginald E., Law and Disorder on the Narova River: The Kreenholm Strike of 1872 (Berkeley, 1995)Google Scholar.

4. Ikusstvo, beside being a substantive and cogent study in itself, also constitutes an excellent guide to, and synthesis of, the rest of the basic literature on the subject.

5. See Corpus Juris Secundum, vol. 15A (Brooklyn, 1967), 111–12Google Scholar, for the range of significance and applications in the notion of legal competence. The issue of self-defense, of course, lies beyond “competence” in a strict sense and possesses its own distinctive place among probative criteria.

6. Koni, A. F., Sobranie Sochinenii, eds. Bazanov, V. G., Smirnov, L. N., Chukovskii, K. I., vol. 5 (Moscow, 1968), 169Google Scholar; cited in Iskusstvo, 6.

7. Iskusstvo, 6; Koni, , “Methods and Tasks of the Prosecution,” Izbrannye proizvedeniia, ed. Amelin, A. B. (Moscow, 1956), 49–50Google Scholar; see also Koni's essay “Moral Principles in the Criminal Trial,” Izbrannye, 19–48.

8. This distinctive aspect of Russian legal life has been noted, although not explored with any thoroughness, in the scholarly literature. For example, see Kucherov, Courts, 69–71; Korotkikh, M. G., Samoderzhavie i sudebnaia reforma 1864 goda v Rossii (Voronezh, 1989), 133Google Scholar, 134, 180; and Frierson, Cathy, “Crime and Punishment in the Russian Village.” Rural Concepts of Criminality at the End of the Nineteenth Century,” Slavic Review 46. 1 (1987): 55–69CrossRefGoogle Scholar.

9. Sudebnye rechi, 11–21; Ikusstvo, 59, 80–81, 101, 107–9, 129–30, 161–62, 172–73; Rechi iuristov, 4.

10. See Green, Thomas A., Verdict According to Conscience (Chicago, 1985), 143–46CrossRefGoogle Scholar, for a fuller treatment of these terms and the overall historical significance of this interpretive framework; also useful is Scheppele, Kim Lane, “Facing Facts in Legal Interpretation,” Law and the Order of Culture, ed. Post, Robert (Berkeley, 1991), 42–70Google Scholar.

11. Scheppele, “Facing Facts,” passim.

12. Ikusstvo, 158–60.

13. Scheppele, “Facing Facts,” 42–44.

14. Ikusstvo, 101, 107; Sudebnye rechi, 10.

15. See, for instance, Sudebnye ustavy 20 noiabria 1864 goda za piat' desiat let [hereafter cited as Za piat' desiat let], vol. 2 (Petrograd, 1914), 150–51Google Scholar; Kucherov, Courts, 81; Atwell, John Jr., “The Russian Jury,” Slavic and East European Review 53 (1975): 56–57Google Scholar; Afanas'ev, Alexander K., “Jurors and Jury Trials in Imperial Russia, 1866–1885,” Russia's Great Reforms, 1855–1881, eds. Eklof, Ben, Bushnell, John, and Zakharova, Larissa, 214–30 (Bloomington, 1994), 227Google Scholar. For a scholarly perspective on verdict patterns in the English jury tradition, see Green, Verdict According to Conscience.

16. Za piat'desiat let, vol. 2, 152–53; Afanas'ev, “Jurors and Jury Trials,” 227; Atwell, “The Russian Jury,” 56–57.

17. Afanas'ev, “Jurors and Jury Trials,” 227.

18. Taylor, Katherine Fischer, In the Theater of Criminal Justice (Princeton, 1993), 6–9Google Scholar.

19. Taylor, Criminal Justice, 5–8; Nye, Robert A., Crime, Madness, and Politics in Modern France (Princeton, 1984), 23–29Google Scholar.

20. See Nye, Crime, Madness and Politics; Harris, Ruth, Murders and Madness: Medicine, Law and Society in the Fin de Siècle (Oxford, 1989)Google Scholar; and Berenson, Edward, The Trial of Madame Caillaux (Berkeley, 1992), 19–20Google Scholar, 28–42 esp., for three outstanding treatments of this phenomenon.

21. Taylor, Criminal Justice, 37.

22. Ibid., 38, 64.

23. Nye, Crime, Madness and Politics, 30–31.

24. Harris, Murders and Madness, 321–32.

25. Taylor, Criminal Justice, 65, 141.

26. Nye, Crime, Madness and Politics, 97–101.

27. Harris, Murders and Madness, 16–17; Berenson, Madame Caillaux, 36–38.

28. Taylor, Criminal Justice, 52–56.

29. Bhat, Girish N., “Trial by Jury in the Reign of Alexander II: A Study in the Legal Culture of Late Imperial Russia, 1864–1881” (Ph.D. diss., University of California, Berkeley, 1994), 137–78Google Scholar.

30. In France the jury's evolving role and significance in the justice system was more heavily politicized than the development of jury trials in Russia, although political opinion on trial by jury was often sharply polarized in the late imperial era.

31. England's coming to terms with this set of issues constitutes another instructive national experience. Martin Wiener's interpretation of nineteenth-century English society's beliefs concerning the sources of criminality and the meaning of legal guilt, brilliantly expounded in his Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (Cambridge, 1990)Google Scholar, both affirms the conceptual thrust of this study's argument from a comparative perspective and points up the equivocality of “moralism” (338) as a historical variable in the relationship between social life and legal judgment. Wiener argues persuasively that from the 1820s to the mid-1870s a Victorian-era moralization of guilt established the strong presumption, in English judicial culture, that people should be held personally and morally responsible for their lawbreaking; the burden of criminal liability tended to fall on the individual and not on causative factors such as society, the environment, or heredity. “Guilt” was thus viewed in moralistic terms, as in Russia during the early reform period, but the English historical context produced a stricter enforcement of criminal accountability, in contrast to Russia's generally more lenient, law-finding manifestation of legal moralism (11–12, 14–26, 46–91).

32. The numerous defects, irrationalities, and corruptions of this procedure are well chronicled in the reform literature; see, for example, Kaiser, Friedhelm B., Die Russische Justizreform von 1864: Zur Geschichte der russischen Justiz von Katherina II bis 1917 (Leiden, 1972), 1–10Google Scholar, 47–55, 63–87, and Za piat'desiat let, vol. 1 (Petrograd, 1914), 6–27Google Scholar.

33. The specific phrasing used by one of the defense counsel in a murder case in late 1870; he sought to undermine the prosecutor's argument for the “guilt by association” of one of the accused by virtue of the individual's membership in the estate (soslovie) of another strongly incriminated defendant. Sudebnyi Vestnik [hereafter cited as SV], October 20, 1870, no. 282, 2.

34. This is a familiar distinction in the literature on the transformation of the inquisitorial model into a more controversial one.

35. The 1864 reform statutes in their entirety are known as Sudebnye ustavy 20 noiabria 1864 goda and are contained in Polnoe sobranie zakonov Rossiiskoi Imperii [hereafter cited as PSZ], vol. 39, 2d ed., 1864 (St. Petersburg, 1867)Google Scholar. The statutes in general will henceforth be cited simply as “Ustavy.” The specific laws establishing trial by jury under the 1864 reform were decrees 41475 (Implementation of Judicial Institutions [Uchrezhdenie sudebnykh ustanovlenii]) and 41476 (Statutes of Criminal Procedure [Ustav ugolovnago sudoproiz-vodstva]). Only decree 41476 is used in this study; it is cited as Ust. ugol. sudoproiz. Ustavy, Ust. ugol. sudoproiz., article 713.

36. Koni, A. F., Vospominaniia o dele Very Zasulich, Izbrannye proizvedenii (Moscow, 1956), 555, 565Google Scholar.

37. Ustavy, Ust. ugol. sudoproiz., articles 678–82; article 682 is the crucial one.

38. Gessen, I. V., Sudebnaia Reforma (St. Petersburg, 1905), 162Google Scholar.

39. Gessen, Sudebnaia Reforma, 163.

40. Despite the appropriateness of this equivalent, it should be noted that even the expansive variety of meanings and uses borne by the concept of “competence” in Western law cannot fully capture the distinctive significance and wide application enjoyed by the term vmeniaemost' in nineteenth-century Russian jurisprudence. As will be argued in the remainder of the article, the effective replacement, in the early reform era, of the strictly legal link between vmeniaemost' and guilt with a fundamentally moral one is better conveyed by a distinction between vmeniaemost' as “legal responsibility” and vina as “legal guilt.” “Responsibility” in this sense presupposes authorship of the crime, legal competence, and the absence of all compelling exculpatory conditions. As such, it more closely approximates the meaning of vmeniaemost' explored here than does the term “competence,” but “responsibility” has no specifically recognized place or function in technical legal vocabulary.

41. PSZ, Second Collection, vol. 20 (St. Petersburg, 1846), from statute 19283, 613. As the original wording demonstrates, this phrase is difficult to translate literally while maintaining a correspondence to Western legal vocabulary.

42. Ibid., 613–15.

43. See, for example, Tagantsev, N. S., Russkoe ugolovnoe pravo (St. Petersburg, 1902), vol. 1, 567–78Google Scholar.

44. Ustavy, Ust. ugol. sudoproiz., article 754.

45. Tagantsev, Russkoe ugolovnoe pravo, 366–419. 562–600; Foinitskii, , Kurs ugolovnago sudoproizvodstva (St. Petersburg, 1912), vol. 1, 1–39Google Scholar.

46. Tagantsev, Russkoe ugolovnoe pravo, 367, 563.

47. Gessen, Sudebnaia Reforma, 65.

48. Ibid., 64–65, 119–20, 162–63.

49. “Redeemed” is another possible translation; the duality of meaning in the term again suggests the deeper moral dimension of the jury's thought process.

50. Excerpted in Gessen, Sudebnaia Reforma, 163–64.

51. Gessen, Sudebnaia Reforma, 164.

52. Neustoichivost', a word Gessen uses repeatedly in this regard.

53. Gessen, Sudebnaia Reforma, 193–200.

54. Ibid.; Wagner, “Tsarist Legal Policies,” 381; Koni, A. F., “Prisiazhnye zasedatel'i,” in Sud prisiazhnykh v Rossii: Gromkie ugolovnye protsessy 1864–1917 gg., ed. Kazantsev, Sergei M., 28–91 (Leningrad, 1991), 34–38Google Scholar.

55. Frieden, Nancy, Russian Physicians in an Era of Reform and Revolution, 1856–1905 (Princeton, 1981), 27, 266Google Scholar; Brown, Julie Vail, “The Professionalization of Russian Psychiatry, 1857–1911” (Ph.D. dissertation, University of Pennsylvania, 1981)Google Scholar; Neuberger, Joan, Hooliganism: Crime, Culture, and Power in St. Petersburg, 1900–1914 (Berkeley, 1993), 133–34Google Scholar. Laura Engelstein's Keys to Happiness, although its specific focus is on psychiatry's impact in the political arena from the 1890s on, convincingly depicts the discipline's power in shaping national opinion and action; see, for example, 256–64.

56. Za piat'desiat let, vol. 2, 418–22.

57. Tagantsev advanced the highly intriguing hypothesis that psychiatry's influential position in Russian criminal trials resulted from a combination of the discipline's relative underdevelopment, in theory and application, with the continuing imprecision of statutory guidelines concerning criminal psychiatry. Psychiatric expertise thus became more accessible and impressive and, largely unfettered by procedural rules, could achieve a status that led, in Tagantsev's view, to the perception of virtually every criminal act as a sign of “psychic suffering” and almost all defendants as “psychically abnormal” (Russkoe ugolovnoe pravo, 383).

58. See Bhat, “Trial by Jury,” 41–86.

59. Cherkasova, N. V., Formirovanie i razvitie advokatury v Rossii (Moscow, 1987), 51–53Google Scholar.

60. Ustavy, Ust. ugol. sudoproiz., article 804.

61. SV October 15, 1866, 375.

62. Ibid., October 16, no. 64, 382.

63. Ibid., 379.

64. Ibid., 380.

65. Ibid.

66. Ibid., December 21, no. 115, 584.

67. Ibid., December 22, no. 116, 588.

68. Ibid., 588–89. The logical and appropriate choice of words here would have been “the accused” or the “defendant”; the assistant procurator was clearly engaging in a minor rhetorical ploy.

69. Ibid., December 21, no. 115, 584; December 22, no. 116, 588.

70. Ibid., December 22, no. 116, 588.

71. Ibid.

72. Ibid.

73. Of ancillary interest in this case was the assistant procurator's obvious disregard for the 1864 statutes' stipulation that the procurator's office avoid one-sided advocacy and partisanship in arguing a case if compelling evidence for acquittal existed; see Bhat, “Trial by Jury,” 70–72.

74. SV, December 22, 1866, no. 116, 589.

75. Ibid., March 29, 1870, no. 85, 2.

76. Ibid.

77. It is unclear in the transcript exactly how many defense counsel were present.

78. SV April 4, 1870, no. 91, 1.

79. Ibid., 3.

80. Ibid.

81. Ibid.

82. Ibid., 3–4; April 5, 1870, no. 92, 1–2.

83. Ibid., January 1, 1871, no. 1, 1.

84. Ibid., January 7, no. 6, 1.

85. Ibid.

86. January 8, no. 7, 3.

87. The case of Iusif Vasil'evich Nechaev, a twenty-two-year-old nesluzhashchii dvorianin (“nobleman not in autocratic service”) accused, in Moscow circuit court in September 1866, of stealing a coat from gubernskii sekretar' N. E. Troitskii, suggests how even the presiding judge could occasionally moralize the issue of guilt, although again not necessarily in favor of the defendant. In his closing instructions, the judge, N. C. Arsenev, instead of adhering to a rigorously juridical presentation of the main facts, made a strong appeal to the jurors' essentially “moral reaction” to the defendant's testimony. Nechaev's courtroom demeanor had made him appear combative, devious, and untrustworthy. Although he did not articulate it as such, the judge in effect “posed” the following question to the jury: Is the accused a credible witness, given his dubious behavior in court? Despite the trial transcript's clear indication that the factual evidence for conviction was extremely weak, the jurors nevertheless concluded that Nechaev was indeed a reprehensible criminal and eventually found him “guilty of theft.”

In this case, a defendant seemingly innocent according to the very standards of proof formally utilized by the prevailing judicial system was found guilty. The jury, at the urging of the presiding judge, appears to have arrived at its verdict through a law-finding approach. Arsenev intermixed law and fact in a most peculiar fashion. While laying heavy stress on the absolute importance of rigorously proving Nechaev's guilt, he also strongly emphasized the judicial relevance of Nechaev's moral character, first by arguing that it should be borne in mind during the evaluation of the defendant's testimony, and second by implying that even the superficially incriminating nature of the physical evidence should cast suspicion on Nechaev's word in court. Jury justice, actively influenced in this instance by the most powerful officer of the court, ostensibly “nullified” the letter of the law, according to largely moral considerations of guilt. See SV, September 21, 1866, no. 44, 300–302, and September 22, 1866, no. 45, 303–4.

88. SV, March 9, 1872, no. 3, 2.

89. Ibid., March 10, no. 4, 1–2.

90. Ibid., March 11, no. 5, 2–3.

91. Ibid.

92. Ibid.

93. Ibid.

94. Ibid., 2–3.

95. Ibid., March 14, no. 7, 2; two medical experts had testified as to Shliakhtin's mental state, and both concurred that he suffered severely from “anxiety,” a “nervous temperament” (nervoznost') (March 11, no. 5, 2).

96. Ibid., March 14, no. 7, 2.

97. Ibid.

98. Ibid.

99. Ibid., 2–4.

100. Ibid., March 10, no. 4, 3.

101. Rechi iuristov, 338.

102. Ibid., 339.

103. Ibid., 338–39.

104. Ibid., 339.

105. Ibid., 341.

106. Ibid., 340.

107. Ibid., 339; similar religious diction was employed in the jury's official sworn oath to describe God and His court of judgment, by which each juror pledged the conscientious performance of his judicial duty.

108. Jay Bergman's biographical study Vera Zasulich (Stanford, 1983)Google Scholar remains the best English-language treatment of her life and the trial; its basic analysis of the case serves as a confirmation of this article's general argument.

109. Bergman, Vera Zasulich, 40, 44.

110. Iskusstvo, 8–9.

111. Such political crimes were officially excluded from the jury's purview.

112. Bergman, Vera Zasulich, 45; Iskusstvo, 8.

113. Bergman, Vera Zasulich, 46–47.

114. Koni, Vospominaniia, 644–50.

115. lskusstvo, 122.

116. Bergman, Vera Zasulich, 47–49.

117. Rechi iuristov, 30; Aleksandrov's charge to the jury tellingly echoed the jury's official sworn oath, the main provision of which enjoined each juror to judge the truth of the case “according to conscience.”

118. Ibid., 30.

119. Ibid., 9, 26, 27.

120. Koni, Vospominaniia, 555–56.

121. Bergman, Vera Zasulich, 50.

122. Koni, Vospominaniia, 565