A Brief Discussion of the Jury
Juries have not always been greeted with open arms. “Shall the Jury System Be Abolished?” asked one American article from the nineteenth century. A quick Google search today produces a wide spectrum of opinions, some arguing we need juries to protect our rights, others calling for their abolition. After all, juries are not ubiquitous and historically have been tied to the Anglo-American (as opposed to the Continental) legal tradition. But now, even England, the original common law jurisdiction, has all but done away with civil juries. Where did juries come from, and what is in their (and our) future?
Multiple theories for the origin of the jury have been proposed, but the English legal historian John Baker makes some fundamental propositions: (1) English juries provided an alternative to other modes of trial including ordeals (such as throwing a defendant into water to see whether he would sink or float) and trial by battle. (2) Similarly to witnesses, jurors were summoned because they had information a judge did not. (3) Unlike witnesses, jurors were also called to make judgments about evidence. On the surface, a system with judges and witnesses can do everything a system with juries can do—bring evidence and make judgment. But that does not settle whether juries advance or hinder making just judgments.
Especially with criminal juries, there is something appealing about the defendant being tried by his peers rather than by a judge, who might seem like the face of an institution. Whether juries always serve justice better than judges is another question. Jury nullification—where a jury returns a verdict it believes is wrong to save the defendant—goes back to medieval England. Thomas Green notes how petty juries in homicide cases often “so altered the facts as to make pardonable what the law considered unpardonable.” Though the bar for self-defense was perhaps unreasonably high (Green notes that “the man attacked had to retreat until retreat was no longer possible”), these juries were failing to uphold the law by finding that certain defendants acted in self-defense when by the law they were murderers. Jury nullification is not a relic of the Middle Ages. In Dougherty v. United States (1972), the D.C. Circuit recognized “[t]he existence of an unreviewable and unreversible power in the jury, to acquit in disregard of the instructions on the law given by the trial judge” and explained how American opinion on this power has not been constant over time.
Outside of jury nullification there is the issue of prejudice, whether political, racial, or otherwise. For instance, last year the New York Times reported that a study found that “71 percent of Americans — including a majority of Democrats and Republicans — said they were not confident the courts would be able to find jurors ‘willing to put aside their prior beliefs about Donald Trump and decide the case based on the evidence presented.’” Choosing a jury for Mr. Trump’s criminal hush-money case was not straightforward. But the same study also found that more Americans have a favorable view of citizens serving on juries than either state or federal judges, so perhaps moving to bench trials would not be a solution even if it were feasible.
Though the Seventh Amendment guarantees the right to a jury trial, there remains the question whether a jury is equipped to render a verdict in complex civil cases. While homicide cases may be hard to decide, jurors do not need specialized training or esoteric knowledge to examine the evidence. Whether the same can be said in all civil cases is less clear. One article asks: “Trial by Jury in Complex Civil Cases: Voice of Liberty or Verdict by Confusion?” Among the touted benefits of arbitration discussed here is that parties can choose an arbitrator qualified specifically to resolve the present dispute.
In civil cases, there is also the danger of a runaway jury awarding excessive damages. Some simply want legislation to cap noneconomic damages. This, in addition to being far more feasible and maintaining the jury system, might be more effective than moving to bench trials.
Juries may also provide social benefits. The civic responsibility of serving on a jury may educate the populace. One Pew Research Center study found in 2019 that 89% of Americans thought serving on a jury if called was either somewhat or very “important to what it means to be a good citizen.”
Ultimately, juries are here to stay in America because of their Constitutional enshrinement. It is good to recognize their benefits, dangers, and shortcomings, and where possible, to address these shortcomings whether at the level of the parties (as with arbitration clauses) or the legislature.