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This was an interesting subject to explore, to say the least. It took quite a long time, both in research and writing, as it surprisingly took many twists and turns and rethinking and re-editing. I can honestly say I do not want to think about the American legal system for a while now, as looking into how we employ juries gets you necessarily wrapped up in a lot of other information about, and opinions on, the American legal system. Information that isn’t related to what we’re discussing here. Nonetheless, what follows is my best attempt at unpacking the history of the American jury system, the philosophy behind it, the very hard question of its effectiveness, arguments against the system as it is, and what relatively easy changes could be made to the system and why. I might get a little more opinionated than I thought I would, but that’s because I had a change of heart and wanted to share why.
First, let’s jump into the history behind the American jury system. That may seem a bit unrelated to discussing the philosophy behind it and any discussion about its effectiveness or how it could be improved, rest assured those are topics which we will certainly arrive at. But knowing the history behind something is always useful in one’s attempt to understand it, especially for a topic that few people know the actual history of. It gives context and can make you rethink things in ways you would never see coming. Plus, it’s entertaining and downright fascinating. That could not be more true with this subject. Let’s dive in.
The earliest use of juries that we are aware of is that of ancient Greece, which we have good documentation of. However, they operated extremely differently than juries would later on or in current-day America. Yet, it seems that this is the earliest known use of a jury system that would decide the outcomes of trials. Some of the differences are stark, and frankly are a bit wild by today’s standards, and certainly fun to explore.
The first major difference to point out is the mere size of the juries that were used in ancient Greece, or ancient Athens to be more precise. They were beyond large. The smallest recorded jury was 201 people, while the typical jury was 501 people. For cases that were considered more important or controversial, the jury consisted of 1001, 1501, or even 2001 people. As you might assume it was always an odd number as their jury system was decided by a simple majority.
That system seems quite wild looking back while maybe even involving a bit of overkill. One can imagine that just making sure everyone could hear the actual trial would be difficult, let alone the amount of potential arguing that could be involved, as jurors were allowed to discuss with each other out loud the specifics of the case or argue for their opinions on the case. It seems the Athenians wanted to keep these numbers high so that a litigant couldn’t bribe jury members. One has to assume also that they felt the more people involved in deciding the outcome the better chances they had to arrive at the correct decision. Nevertheless, a tad outlandish it still seems. One cannot help but wish they could just witness the spectacle of 2001 Athenian jurors listening to an important case, yelling insults and ideas over each other – and in my mind – sipping red wine, and eating delicious lamb dishes with pita bread and olive oil all the while.
Another interesting point, apparently the courts had no issues with sourcing enough juries for these large trials. Citizens of Athens led such a leisurely life that they wanted to be on jury duty. Either that or they staunchly felt like it was their civic duty. It was probably a combination of both. Most days far more citizens would appear hoping to be on a jury than was necessary. Tell that today to the judges and attorneys who have to deal with potential jurors who quite often would rather be at the dentist than in their presence…
The way it worked was that, like all Athenian governmental functions, foreign residents and women were excluded. You had to be a male citizen of Athens and had to be above the age of 30 as well to be eligible. They were trying to assure the jurors had acquired enough life experience to properly weigh in on a case. Interestingly, one only had to be 18 to participate in the legislative assembly, but another 12 years of life was required to be a juror.
Each day that court was in session a panel of jurors would be selected by lots from the eligible men who presented themselves. So in this way, it was random, as long as you were a male citizen of age. No knowledge of the case was needed. No knowledge of anything that the case might rest upon was needed. This is intriguing and put a lot of pressure on the litigators. A case about something that happened at sea? You don’t have to have ever set foot upon a boat, should you be selected you have a vote. It’s interesting how similar and dissimilar to the American system that is, but more on that later.
Trial days didn’t happen incredibly often, maybe around 40-50 times per year depending on the needs of justice for the day, which helps explain (slightly) how they were able to source enough citizens from their city of between 40,000 and 100,000 people. Still, it’s impressive to think about how many people were eager to take part in the process. Then again, there was not much entertainment compared to today, and this was quite an exhibition. But I digress…
Another compelling aspect of this system was the total lack of any true legal professionals. There was no one we’d recognize as a professional attorney. There were no rules either about procedure or evidence and litigants often had to appeal to common sense as opposed to specialized or rule-based legal arguments. And as we discussed before, jurors were allowed to shout and heckle. Certain cases must have seemed like a sort of modern-day standup comedy show gone awry, although with potentially dire consequences for someone, potentially decided by a single vote.
Moving on, one would think that like so many other aspects of their society that the Romans might have had a similar system to the Greeks. But they did not. Juries were not a part of their system. While people argued with each other in trials there seems to have been more rules and cases were decided upon most often by magistrates. Their system relied much more heavily upon the state, both in the people chosen to be involved and the rules surrounding how cases were heard, instead of a free-for-all trial with a judgment handed down by one’s peers.
The Romans did employ something called the century assembly, which was a legislative assembly made of Roman citizens that divided them into groups based on their wealth and social status. The centuries would occasionally vote on trials for serious criminal cases, with people interestingly being called to vote based in order of their level of wealth, ensuring that the wealthier centuries had the most influence on the outcome. But it isn’t like a jury as we think about it at all today, as it’s not a group of your peers that decides, instead it was an established legislative body that dealt with many things – including passing laws, declaring war, and making peace.
So it appears that the Romans, who are the basis for so much of what would later become European and then American systems (especially after the Renaissance), did not see a use in having jurors. It was much more formal and relied upon professionals and rules to decide outcomes. The state wanted to be the administrator of justice and the enforcer of the predetermined rules that they had already set up. They thought involving arbitrary members of the public, even if they were Roman citizens, was quite a silly idea. And while one has to imagine that public opinion would influence the magistrates, as public opinion has always influenced important decisions made by the state throughout the annuls of time, this is a remarkable difference from the Greeks.
So then the question has to be asked, when did juries as we think of them make their reappearance? If it’s not a vestige of the Roman empire, where did this idea come from? The answer may stun you. It certainly did for me.
There was a system of classical Islamic Law and jurisprudence known as Lafif, that was created and then developed between the 8th and 11th centuries in the medieval Islamic world. It thrived the most in Islamic Spain, North Africa, and the Emirate of Sicily. And yes, Spain and Sicily were once part of the Islamic world.
This is where it gets wild. Within this Lafif system, they chose 12 members, drawn from the neighborhood around the trial, who had to give a unanimous verdict. Why 12? We surmise it is because the number 12 holds considerable importance within the Islamic tradition, as it is associated with the 12 imams who are considered to be the rightful leaders of the Muslim tradition. And, side note, while they were not the first to establish this idea, the importance of this number in the Islamic world probably influences us today in the way we keep time.
Back to the jurors, they were sworn to tell the truth before God and had to give judgment upon matters “which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff.” This of course makes one wonder what happens if the case is about something that no one saw, or if the meaning of “heard” here can include hearsay. Nonetheless, the simple similarities to our system are pretty remarkable, especially considering this is an idea that seems to be well over 1000 years old and comes from a society that – let’s face it – is very unlike ours in America today and is not a society that we identify with or feel we draw much influence from.
Let’s not get ahead of ourselves though, first, this system must make the jump into the Anglo-Saxon culture, which is that upon which the American system derives. It seems it’s from our favorite “barbaric” friends the Vikings, and yes, that is tongue in cheek because our conception of the Vikings should be challenged at least a tiny bit here. At least one has to think their organization here will be a surprise for many.
You see, the Normans were originally a type of Viking culture, as Viking is a word used as a catch-all for different types of conquering people hailing from northern Europe, using well-made ships in fearful raiding expeditions aimed at expanding their culture and their peoples’ prospects. And while most associate them with France the Normans, amazingly, conquered Sicily in the 11th century, led by Robert Gusicard “The Cunning”. They were driven all the way south by a myth about a happy and sunny island in the Southern Seas. Why they conquered Sicily isn’t too important for our discussion, but is a fascinating and impressive tidbit. What’s important is that these two cultures now intermingled, and quite heavily, into what is now called Arab-Norman culture. And as the Normans now inherited the Islamic legal administration that was present in Sicily at this time, they adopted much of their practices into their manners of jurisprudence. It seems they liked what they saw and assimilated it into their practices.
As you may know, these Vikings also had themselves a pretty good time invading and then living in England. Both the Normans and Saxons would do so. Hence the ‘Saxon’ in Anglo-Saxon. And Normans were just Vikings who decided to settle first in Normandy, which is in North-West France, before they headed north to England in 1066. Sure, it’s a history more complicated than that, but those specifics are not relevant here. While we cannot be completely sure, from what we can tell seems to have happened is that they brought the legal system of Arab-Norman Sicily to their northern brethren.
While many imagine these Saxons and/or Normans as Vikings and hence crude and violent people who cared little for anything other than marauding and violence, that wasn’t always the case. When not on the warpath they seemed to have been quite the litigious people. They had this process that translates into ‘the thing’ as their way of hearing legal arguments. In this system, within the Danish areas of England (and yes, that’s yet another way of saying Viking), they would use twelve hereditary “lawmen”. These men were supposed to be well-learned in their folk customs and their judicial procedures and would be responsible for hearing out the complaints and trials of their day.
This practice was soon adopted and slightly morphed by the English king Ethelred the Unready, who was the English king at the beginning of the 11th century. He issued a legal code that stated that the twelve leading minor nobles of each small district in the country were required to swear before God and King that they would investigate crimes without bias. What’s interesting here is that these jurors had to be self-informing. There was no trial in the way we think of it today. They would investigate crimes or serious complaints themselves and then make a decision.
Sidebar: It should also be noted that there is another theory about the origins of a 12-person jury in the English world. Some claim there was a Welsh king named Morgan of Gla-Morgan who established jury trials in 725 A.D. and decided upon that number because then the judge and jury would resemble Jesus and his Twelve Apostles. However, one can’t be sure about this story and if this jury system actually made its way into England from Wales as opposed to from the Normans when they invaded in 1066, which we have more evidence of. The later’s timeline does seem to make more sense with what we actually know is true, as the Welsh sources are considered fragmentary and inconsistent. They’re also written in Old Welsh or Old Latin and are difficult to interpret. It’s probably a myth or legend. But hey, it’s a little fun to know about anyway and I felt I should share. But we digress…
You would be forgiven if you think this is getting in the weeds a little too much, and this history will continue to change quickly, but if you follow the simple parts about what we think happened concerning the origins of our jury system it’s incredibly interesting. To recap our most informed guess of the history until now; the Islamic empire, of which the island of Sicily was a part, introduced a style of a 12-person jury system to help decide their trials and legal issues. The Normans conquered Sicily, liked what they saw, and brought the idea back up north where it reached the English island. They constructed their own version of a 12-person jury system, which the King of England then liked and adopted in his own way.
We can stop there for a moment because it’s also important to note what didn’t happen. This idea of juries, let alone the specific number of 12-member juries influenced by Islamic religious tradition, made its way up into western France and England as just discussed. Today they are the only European countries to use a system like this in their legal tradition, and the French only use it for serious crimes. The rest of Europe stuck to a system that more resembles the ancient Roman system where experts of the state, usually professional judges, decide the outcome of most trials. Let that sink in for a moment… Within Europe, it is really only within the tradition of England, and kinda France, that people are rightfully allowed to be tried by a group of their peers. The rest of Europe, who eventually got wind of this idea, deemed it a silly way to decide all trials, a silly way to decide the fates of people, funds, or property.
I would venture to think many Americans, and possibly even English, are unaware of the uniqueness of this legal system, let alone the history that has brought it to us. More on that later.
I am sure people are eager to get to the American system, but let’s finish talking about the English. It was King Henry II in the 12th Century, not too long after Ethelred, who decided to set up a system to resolve land disputes using 12-person juries of free men. But still, these men had to investigate and decide upon the disputes themselves. Interestingly, Henry II also created a system that would be the predecessor to the grand jury, where a jury of free men was charged with deciding if any potential crimes they knew of in their area warranted being heard by a judge who moved between areas on a circuit. They decided if they believed there was sufficient evidence that a crime may have occurred and was sufficient for a judge to hear about it. The judge then would oversee a trial by ordeal.
I will refer to Harvard Law professor Elizabeth Papp Kamali’s description of a trial by ordeal that she gave in an interview:
“In Latin, it’s referred to as the judicium Dei, the judgment of God. The two methods used most typically in England were trial by cold water and trial by hot iron. In trial by cold water, a person would be dunked into a cistern. If they sank, they would be declared innocent, because the water had accepted them. If they floated, they would be declared guilty.
In trial by hot iron, the priest would heat an iron, and at the appropriate point in the service, the accused would grasp the hot iron, walk a certain number of paces, and put it back down. The hand would be bandaged, and then three days later, the hand would be examined to see, not if the person had been burned or not burned, but whether the hand was healing or festering. If the hand appeared to be festering, they would be pronounced guilty. And if the hand seemed to be healing, they would be pronounced innocent.”
Soon, however, the Church decided they didn’t want their clergy to participate in trial by ordeal. That happens in 1215. And without the blessing of God, enough people realized the pretty nasty nature of the stuff they were doing in a trial by ordeal, so it lost its legitimacy. That same year another pretty big event happened, trial by jury became an explicit right in the Magna Carta signed by King John. And since they already had this 12-man grand jury system it wasn’t a huge lead to just use that as the basis for deciding the outcome of trials in general. The important clause in the Magna Carta here reads, “No free man shall be captured, and or imprisoned, or disseised of his freehold, and or of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.”
We don’t have to dive into the specifics too much of the Magna Carta, but let’s just say it was a damn big deal at the time and still is. It is considered to be one of the founding documents, if not the most important of the founding documents, of English common law – the system of laws that would, hundreds of years later, be brought over into the American colonies. To explain it quickly the Magna Carta established the principle that everyone, including the king, was subject to the law, and that the law must be fairly and justly applied. This principle helped to establish the rule of law in England, which is a fundamental concept of English common law. The Magna Carta also established certain rights and protections for English citizens, such as the right to a fair trial and the right to due process of law. These rights and protections helped to shape the development of English common law, which has been influential not only in England but also in many other countries around the world. Its basic ideas should sound especially familiar to Americans.
After that, the story is relatively simple. The British brought their legal system and their common law to the American colonies, where it was used for centuries before we decided to up and leave them, and after a little fight over the issue we created our own constitution. While we were pretty upset with King George and the taxes and our lack of representation we actually liked a lot of the rights given to people via the legal system, including the protections first enshrined in the Magna Carta and the part about a jury system being used wherein people would be judged by their peers.
There is an interesting twist or two that many people would probably not know about, or maybe have forgotten about and would now find re-interesting in the context of this discussion. The framers of the Constitution addressed juries in the sixth amendment of the Constitution, which guarantees the rights of criminal defendants, including the right to a public trial, without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are (as well as the nature of the charges and evidence against you). What you may find intriguing is that no other details are given about the specifics of the jury outside that the trial must be “by an impartial jury of the state and district wherein the crime shall have been committed.” That’s it. It must essentially be a fair and local jury.
There is no mention of what defines impartial, how many people there should be, or that the decision needs to be unanimous. Think about that for a moment… Seems pretty sparse of an amendment, no? We’ll eventually return to that…
What happened much later is that the Supreme Court had to clear up the confusion and ruled that a jury must have at least 6 members in criminal trials and that in federal criminal cases the juries must have 12 members unless both the prosecution and defense agree to a smaller jury. It was in Williams v Floria that the Court held that the fixing of the jury size at 12 was “a historical accident”, and was not required as an attribute of the jury system. They actually went further and said the size of the jury bore no discernible relationship to the purpose of a jury trial and that there was no reason to believe that any great advantage was given to the defendant by having a jury comprised of 12 rather than 6 people (which we’ll learn may not be true). Essentially they said it must be large enough to promote group deliberation, free the trial from outside attempts at intimidation, and provide a fair possibility that a cross-section of one’s peers would judge the outcome.
You’ll see this a lot throughout history, especially in legal codes derived from English Common Law. When you don’t know what to do just go with what you have already been doing. What could go wrong? And while it is difficult to know exactly how many cases in America don’t use 12 people we do know that in 2005 only 3% of federal criminal trials were conducted with fewer than 12 people. So yeah, it does happen, in certain places and for certain types of trials. But it’s extremely rare. And while I don’t know this for a fact, one has to believe that in rural places for smaller crimes sometimes it’s just not always necessary or doable.
What’s another aspect of this system of ours that was decided upon just because that’s the way it’s always been done? Well, requiring a unanimous decision was one. The Supreme Court took an originalist stance and decided that at the time of the Founding, the Sixth Amendment guarantee of a jury trial included the requirement of unanimity for state and federal criminal cases – because that’s how they did it back then, even though they decided to leave out the stipulation when they wrote the Constitution.
One must realize, there is a good reason for this, and this isn’t an argument against this practice. The idea behind unanimity for criminal cases is basically that, in America, you’re innocent until proven guilty and that since a defendant’s liberty is at stake the consequences for the individual are severe in the American mindset. It encourages jurors to carefully consider and evaluate all of the evidence presented at trial and is aimed at creating meaningful deliberation and discussion among the jurors.
Still, one must also step back and notice that there is something almost slightly amusing about putting this forward within a system that proclaims to almost worship the idea of democracy. In a system where unanimity isn’t required for anything else, not for going to war, not for any election or piece of legislation. And that decision was guaranteed by a Supreme Court that itself has never operated this way. It’s just interesting…
That brings us to another thing that many of us in the once British world probably walk around thinking; that this is the system used by most others in the world, and if not the world then the Western world or the “global north” maybe. Outside of the countries most connected to Britain by history and culture (the US, Australia, Canada, New Zealand, and Ireland), there really are only a handful of other countries that use juries in any way at any time, and the US stands alone in that it uses a common law system (meaning legal decisions are made through a series of courts) that then uses juries for both criminal and civil trials. Most other countries use civil law in which legal decisions are made based on a collected series of rules and not by judges or court cases in the way we think about them. Then there are a few countries that use religious law, notably Islamic ones, which as we know can occasionally allow for juries but doesn’t guarantee them nor are they common (Iran, notably, uses them for some serious criminal cases).
Interestingly, India outlawed the use of juries in all trials in 1960 and Singapore and South Africa both did in 1969 (one has to imagine it felt a bit too British for comfort in India). Germany once banned them before bringing them back for very rare cases. Russia in effect never uses them, and Indonesia literally never uses them, just to name a couple of examples. And then even in countries like Germany, Italy, Spain, Japan, or South Korea – which technically do allow for juries – it is still only for unusually serious cases or specific types of cases. And even then one must remember these juries operate within a civil system that functions totally unlike ours, relying more on rules and judges. One can’t help but think, big picture, it seems most prefer to lean toward the Roman idea over that of the Greeks and Sicilian Muslims. It wouldn’t be worth diving anymore into these differences, it’s just fascinating to note how unique the US system is. What’s even more fascinating is that most Americans don’t even realize how fascinating their system is. We pride ourselves on creating many unique aspects within our legal system, but one doubts that this is one we regularly recognize as special.
Maybe your mind has now gotten to the next important question. Does the philosophy behind the U.S. jury system work? And if it once was the best answer we had to the question of trials, is it still in the modern age? Why isn’t it used and adopted by other countries in the way that other aspects of the philosophy behind the specifics of the Constitution have? Does the philosophy behind the jury system, once analyzed and realized, hold water?
And if this is the part of the podcast/article you think is the most important part, you’re probably correct. But I truly believe that understanding the history and philosophy of the system in the past, as best one can, really helps to deconstruct things so that one can properly examine the reconstruction of things.
First, let’s look at what we know from a more statistical aspect about the efficacy of the system that Americans created as related to juries.
As we’ve sort of already explored it should be stated that the Supreme Court has ruled that smaller juries can be permitted. So states such as Florida and Connecticut have used, or at least are allowed, smaller juries of six or nine people. And one thing this author was unaware of, even though I once called this state home, in Louisiana you can actually have a super majority verdict with just 9 out of 12 jurors. However, it cannot be less than 6, as the Court ruled after Georgia attempted to assign a 5-person jury to criminal cases in 1978.
So while the varieties are not that vast they do exist, so some mathematicians and statisticians have taken a look into analyzing this. One such person is Jess Suzuki, a mathematician at Brooklyn College in New York. Unsurprisingly he tells us the Supreme Court has made its decisions about how big a jury should be to ensure proper deliberation. Surprisingly, he also tells us the Supreme Court is making these decisions “basically on an intuitive basis”. One could easily argue it’s also based on precedent, but that’s beside the point. As we already know from looking at the history, these decisions were not made for any objectively clear reasons laden with a legal purpose.
Suzuki took a look at the probability of jurors coming to the correct decision, continuing something that interestingly began back in the 18th century in France by a polymath named Nicolas de Condorcet. Suzuki looked at three outcomes of a jury decision; the probability the defendant is actually guilty, the probability that a juror will make the correct decision if the defendant is guilty, and the probability that a juror will make the correct decision if the defendant is not guilty.
Stay with me here.
His model suggests that smaller juries are more likely than larger juries to convict when the defendant appears less certain to be guilty. If the defendant appears guilty then the size doesn’t matter, but it does when it’s not clear. If it appears there is an 80% chance the defendant is guilty a 12-person jury would unanimously convict less than 10% of the time, a 6-person jury over 25% of the time, and a Louisiana-style jury would convict roughly 60% of the time. So, just by those numbers and probability it would seem at first glance the Louisiana system is correct most of the time, that we should lean towards a more “democratic” approach to jurors voting.
This however begs the philosophical question, what is more democratic overall in the American system? Is it worse to convict one innocent man over letting go a guilty one? And at what ratio of jurors should we answer that question? If our system assumes innocence shouldn’t we make it very hard to be proven guilty? Does that sense of the American democratic system outweigh the democracy inherent in the voting system of jurors? I won’t pretend to be able to answer those questions here, but they’re powerful ones to mull on!
Another finding, from Bruce Spencer, a statistician at Northwestern University compared judges’ notes with the eventual jury finding and found that as a whole juries agreed with their judge’s private feelings about the case 80% of the time. So in essence, he found that only 20% of the time did the judge feel the jury decided in error. That’s a critical stat to absorb, that the professional who has dedicated his life to hearing cases, only disagreed with a “random” group from the general public in 1 out of every 5 trials.
Now, every case is different, every region is different, and these questions deal with the moving target that is history through time, so it goes without saying – yet must be said – that for different types of cases different factors play into the outcomes. So using math here is certainly not perfect and more work needs to be done. But the purpose of this episode, despite what it may seem like, isn’t to get bogged down in the weeds as much as to challenge our notions from a 30,000-foot view. I think that’s important to remember.
What is clear though is that many cases will, unfortunately, be decided wrongly (as of yet we can’t avoid this) and that larger juries requiring a unanimous decision convict the least. So if you believe it’s better to let a guilty man off than convict an innocent one the unanimous 12-person jury looks like the best, if you would like to maybe, on the whole, keep the most probably guilty people off the streets then a 6 person or a Louisiana system looks best. There is no objectively correct choice, only tradeoffs, as is often true for hard decisions in governance and just life. However, if we are going to say one is innocent until proven guilty, I personally believe erroring on the side of keeping innocents not convicted of a crime is the better philosophy of law over time.
An interesting side note in this regard is that offenses with the strongest direct evidence appear to have the highest conviction rates, such as indecent photos of a child, someone being caught with drugs that are clearly aimed at distribution, and death by dangerous driving. In a twist, homicide-related offenses have some of the lowest jury conviction rates, examples being threatening to kill, manslaughter, and attempted murder have very low conviction rates while murder is quite high, yet not as high as death by dangerous driving. What I take from this is that anytime you have to prove a state of mind, or it’s just a crime – serious as it may be – that’s harder to prove then these defendants aren’t convicted as much.
And while I understand that people taking this information in may find it a bit obvious upon reflection, I would hesitate against that. That the system makes sense and does not want to jump to convictions I think shows a wonderful side to the procedure of being judged by one’s peers in a country that – despite our utterly scary and unnecessary prison numbers which seem to be driven by other forces that are not jury related – enshrines in law that one is innocent until proven guilty. When something seems to work pretty well and at least bends towards benevolence it should be celebrated. Because, after a serious deep dive into the specifics and history of the U.S. legal system, much of which would be counterproductive to share here, there is plenty else to not celebrate.
And yet at the same time, we must also realize this important statistic. In courts with over 1000 jury verdicts between 2006-2008 the conviction rate overall ranged from 69% to 53%, meaning there were no courts with a higher jury acquittal rate than conviction rate. This seems to be more related to what has to occur before someone would even head toward a jury trial as opposed to anything else, meaning that if you are having a jury trial at all there – on balance – is some sort of evidence of wrongdoing, enough for a trial at least.
It can be frustrating though, trying to understand the efficacy of something that is as human-centric as a jury’s decision, with so few clear-cut pieces of reliable evidence to go off of, let alone the weight of tradition and legal precedent. And while it is a little bit dated, being from 1976, there was another study that may be of help titled The Pros and Cons of Jury Trials from the journal Forum. It looked at, “The arguments that the civil jury system is too costly, that it slows the justice system, and that judges are at least as well as qualified as juries of laypeople, and at best better qualified”.
Instead of a breakdown, I will just share the abstract from what they found:
“First, cost statistics from 1973 show that the entire (civil and criminal) jury system to have been appropriated $18.5 million, which is 8.8 percent of the more than $203 million for the Federal courts. If the juror costs are compared to other costs in the U.S. Government; e.g., legislative and executive costs (and costs of defense and health, education, and welfare), the U.S. is spending a comparative pittance on sustaining the jury system. Second, allegations that the problem of court congestion could be solved by eliminating the jury system can be countered by the fact that the real reason for court delay is simply that a litigation explosion has occurred and that the number of judgeships and court facilities has not increased proportionately to handle it. More judges in any court system can reduce caseload and delay, and the improvement in the administrative procedures will also have an important effect. Third, jurors and judges both bring their prejudices, biases, and psychological traits to the courtroom. But the mix of different persons with different backgrounds and psychological traits in the jury room brings interaction among jurors, counteraction of their biases and prejudices, and assures a freshness of approach that judges, who see the same cases, expert witnesses, and lawyers over and over again, cannot maintain. Furthermore, if judges were to decide cases alone, judges could suffer great losses of respect. Studies have shown that reducing the size of the jury shows no advantages, as some critics have claimed it would. The jury is one of the last areas in which the individual citizen interacts with the workings of government. A jury is able to bring the standards of the community to play in the matters which it considers. The cost of the system is insignificant, the delay caused by the system is minimal, and the value is immeasurable. Until some alternative emerges that truly shows greater effectiveness, the jury system should remain.”
Well said.
What’s important here? The cost of the jury system is small, court congestion is caused not by the jury system but by the administrative system and lack of judges, jury size should not be reduced, we litigate too much, and there doesn’t seem to be any yet conceived better system. After my – way too – deep of a dive into the American legal system I have to say I agree with these points.
I am not going to bullshit you here, when I first began my plunge into the history and philosophy behind the American jury system and started to learn about some of its uniquely American quirks and how it really is an anomaly in the developed world I thought I would be telling you how this is an antiquated system that needs serious reform – maybe to the point of repeal. That was my gut instinct on the matter. Yet that isn’t the case now, and that calms me and makes me optimistic. I honestly thought I would be sharing with you how deciding upon such important moments in people’s lives – declaring them guilty or innocent of some wrongdoing – should be handled by professionals and not fellow lay people. Yet, alas, I must live with the wonderful accident of the initial information not equaling that which I ended up with. I also say that, in part, to explain the length, detail, and divergent nature of this episode. I needed to take you on that trip, hoping that maybe you took a similar one while sharing enough information so that you can make up your own mind on the matter as well. At least that was the goal.
All that being said, it’s not like I think this is a system that shouldn’t be changed. I just think the intent, structure, and outcomes are in aggregate superior to other systems. Especially for Americans, with our unique mindset and values. And one must remember it can be changed should we want it to, after all the 6th Amendment only calls for an impartial trial by a jury of one’s peers. The specifics of the rest are up to us and are always amenable.
So what could be some positive changes? Here I’ll offer some opinions that reflect my thoughts, but of course, this is all food for thought and I’d love to hear what anyone else reading or listening to this believes. I will attempt to do that in part by explaining some intriguing arguments against the system, and you can then hear my responses to them, but also balance them against what we’ve already discussed to make up your own mind.
One area that probably needs a second glance is the jury selection process, known as ‘voir dire’. The rules for this can vary from state to state and jurisdiction to jurisdiction, but here is what happens in general. Usually, the judge will question potential jurors first, followed by the attorneys from each side. The questions can be about almost anything, as the attorneys try to ascertain if any bias or prejudices could affect a potential juror’s ability to be fair and impartial. Both the prosecution and defense attorneys can challenge any juror, without needing to give a reason. Overall, though, the judge is responsible for overseeing the selection process and deciding who with be the jurors.
All of this seems reasonable yet often still leads to some odd results. Prospective jurors with experience in the subject matter at hand are usually excluded, the thinking being “they know too much”. As a result, juries are often comprised of people – at least as concerns the material at hand – that are not very knowledgeable and hence they often find it hard to keep up. This is made worse by the fact that the jurors will be given rules related to their case they have to keep in their heads all the while trying to understand the case in front of them. Famously, in the Kyle Rittenhouse trial, which was about self-defense – a seemingly simple subject – the jurors were given 36 pages of instructions. That cannot be helpful in terms of searching for justice.
These arguments were some of many put forward in an article I read by an attorney named Maclen Stanley in Psychology Today. And he puts forward a very well-written argument about the holes within the jury system. From his point of view, jurors are often biased and that voir dire (jury selection) has become a mini-trial in and of itself and that it often doesn’t pick the best people for the job. He thinks there is often a media influence and pre-formed opinions at play, and that jurors are usually ill-equipped to do their job due to a lack of legal knowledge and this leads to capricious decision-making. He also states, “Perhaps no one fears a jury more than a lawyer. We tend to advise our clients to avoid juries like the plague. This is because they are so utterly unpredictable.” He would rather see, and I bet he’s not alone in this, bench trials in which a panel of judges decides a case.
Before I began looking into this issue I was kind of thinking the same thing. However, this would require changing or removing the 6th Amendment for an argument related to the harm the jury system does in its current state to society. That’s just not a clear argument. If we can’t agree on the harm the 2nd Amendment does to society, I don’t think even entertaining the idea of changing the 6th is worth any time outside of a mental exercise (and those are important, don’t get me wrong). I just agree with the finding in the aforementioned study from Forum, this argument simply puts too much trust in judges over “lay people”, as if they’ll somehow always be better, that they would be unbiased, and don’t themselves consume media that could affect them. After all, as we’ve seen judges seem to already agree with their jurors 80% of the time. Would lawyers fear a jury trial less if it was in front of 12 judges? Does the unpredictability of jury trials stem from having 12 peers make a judgment or is it because of the arcane rules within the courtroom? Also, and this is important, if you don’t like to advise your clients to go to trial, one would think you’re often then advising them to plead guilty or take a plea bargain in some manner. This doesn’t feel right, maybe we take a look at how attorneys operate within the system and what gives them fear about the process. Why jump to tearing down the entire system before we at least try to change it?
Another interesting argument I came across originated from an unusual source. Thank you very much internet… It was on a simple little chat forum about the jury system on city-data.com of all places. ClaraC said:
“The court system is a really bizarre way to arrive at a verdict for a person accused of a crime, however, it was originated.
We don’t use this system for ANY other decision making process. Can you imagine, if you were considering buying a house, doing it this way? To have one person who would profit from you buying the house, facing off against another person who would profit from you NOT buying the house, in a presentation of opinions. You’d have to sit there, mute, and listen to them parade their witnesses in front of you, with a judge telling the witnesses exactly what they can and cannot say before hand. You can’t research the house yourself, or seek guidance from people you trust. You certainly can’t tour the house to see it for yourself, or interact in any way with the homeowner.
No one would stand for that kind of process in making the decision to purchase a house. And yet, that’s our court system.”
Outside of the observation that trials and purchase decisions are apples and oranges, it remains funny how a “layperson” on a random chat forum in a few sentences can make a more succinct argument than a legal professional through an entire lengthy essay in a respected publication. Hmmn, weird. Anyway, her argument makes some sense. She points out the problems so concisely, there are real irregularities here that don’t mesh well with common sense.
But all of these aspects could be addressed. The problem doesn’t seem to lie with the current jury system itself but rather with all the other systems set up around it.
Maybe jurors shouldn’t be mute always. Maybe they should be allowed to seek information in some way. Maybe evidence and what witnesses are allowed to say should be more transparent and open. Additionally, knowing too much about the subject of the case, or being very intelligent in general, should somehow be controlled in terms of allowable reasons for an attorney to object to – so as not to be a reason one isn’t selected for a jury. As long as the potential juror doesn’t have much bias on the case itself, knowledge on the subject at hand (or high intelligence in general) should be quasi-sought after by the judge even if probably one of the attorneys wouldn’t like it. But again, there are 12 people, so even just a few people who could “speak the language” of the case could be very useful when the jury then deliberates and talks amongst themselves before handing a decision over to the judge.
In terms of the selection process, which is so important yet so complicated, simple changes certainly are badly needed. To elaborate, here are some odd examples of reasons people are turned away from being a juror: Your clothing, if one’s attire isn’t nice enough it can be used against you being chosen. Your body language, sometimes fidgety people are deemed less trustworthy. Your education level, sometimes attorneys want you to be smart enough to understand a case, but very often having too much education is deemed a bad thing – remember the attorneys want to stay smarter than you! Even your social media can be used to see if, in the attorney’s opinion, you may have any bias or prejudices related to the case.
Anecdotally, I’ve received jury duty only once and was very interested in being considered (weird, right?). After I said I had 2 college degrees the interest in me seemed to stop and I was sent home pretty quickly. My father, who is a physician and has served as an expert witness in court before, has been summarily not considered for a jury a couple of times. They don’t tell you the reasons why you’re not chosen but in both instances we had a pretty good guess as to why.
In addition to taking a look at the instructions given to the jurors for each trial, keeping those by law simple and more universal would be helpful. Some rules just don’t seem to make sense and I believe get in the way of finding the correct outcome of a case.
Sidebar: it’s always seemed wild to me in movies when a judge asks the jury to not consider something they just heard, as if saying it’s stricken from the record erases that from their memory. These rules at times just lack a bit of common sense.
I think allowing jurors to see all of the evidence of a case, within reason, would help enable them to make a more informed decision. This doesn’t mean that we should allow all evidence for all cases at all times, just that there should be a damn good reason why they wouldn’t see a piece of evidence. There are some real horror stories out there about cases in which jurors after the case was shut, upon hearing about the evidence they weren’t privy to, are shocked and say it would have changed their mind. Then there are a few simple things, like allowing the juries to take notes and – within reason – to ask questions. One has to think that would be helpful in their decision-making process. It’s odd that they have to go off of memory and then are expected to be silent participants until the very end. It just seems like an unnecessary impedance to the process that doesn’t help get to the right verdict, it just helps things go quicker. I am not advocating for an ancient Greece level of participation, but even just allowing juries to ask a few questions through the course of a trial – I don’t see how this would hurt anything.
And then there is what we touched upon before. More investment in the system (and probably more pay for the jurors so that it’s a slightly more desired situation to be in), a decluttering of the administrative system, and less litigation in general. These would all go a long way.
Do I know exactly how these changes would be best implemented? No. Would there be drawbacks to any changes made in these processes? Certainly. But are we fooling ourselves that there exist no changes that could easily be made that wouldn’t better bend us toward more accurate jury decisions while keeping things fair, impartial, and effective? Indeed I think we are.
We must not throw away the bedrock of the process, but invest more resources, and make some changes, to the scaffolding on top of it so that it runs better. We must realize we have a decent jury system here and encourage/improve the sense of civic duty to be felt by both potential and current jurors. The arguments against it seem to throw the baby out with the bathwater. Yes, often the entire process indeed imposes a burden upon citizens. They must take time away from their jobs, potentially worry about their safety, and could potentially be traumatized by the evidence they observe or stigmatized by the decisions they make. There is an extraordinary amount of time that is consumed by this process as well. Those who question the jury system are not wrong to say that the American court system is often backlogged. These problems lead to a seriously unfortunate reality, prosecutors often offer plea bargains to avoid a protracted trial, and defendants tend to accept because they’re afraid of what their attorney says may be an unpredictable or irrational jury. 97 percent of all federal criminal cases end with a plea bargain. In the civil system parties regularly wait years before actually going to trial. This isn’t the fault of the jury system itself though.
We’ve seen that it still is probably the best system we have. We just have to get it un-backlogged and work on the causes of the fear of unpredictable and irrational juries, we can find a way to do that because overall we can see they’re not irrational. We can invest in more judges and better administration to reduce the time-to-trial of civil cases. But really, the biggest takeaway from looking deeply at the American legal system, the thing that would do the most good for the system and the country at large, is not having a country that somehow litigates itself into having the world’s largest prison population with something like 2.2 million prisoners (which is around 22% of all prisoners globally). Can we take a look at our laws and why so many find themselves in court? For God’s sake, can we please address that issue before anything else!?
That was my main takeaway, the American jury system indeed works but can be made better in simple ways, the largest being that too many people are going to court and then jail for criminal offenses. Americans aren’t that much more criminal than people in other countries. Something else is wrong. Something else must be changed. Let’s start there.
Thank you for reading.
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