The Jury System Should Be Discarded

The right to a trial by a jury of one’s peers has been a foundational right in Western legal tradition for many centuries, and is present both in English Common Law and the United States Constitution. Americans are raised to believe in the iconic (and stereotypical) image of twelve ordinary, reasonably intelligent citizens taking their duty seriously and returning a fair and impartial verdict. We persist in the delusion that twelve individuals of no particular training or experience will interpret and apply the law better than an individual who has spent his life being educated and trained to do just that. This is, I suppose, a byproduct of our narcissistic belief in the “wisdom of the common man.”

12 Angry Men - The 1957 classic that helped create the fantasy jury stereotype.

The reality is that what we end up with, more often than not, are twelve people selected not on the basis of their qualification to stand in judgement of a particular case, but precisely for their lack of qualification and knowledge about the central issues of the case at hand. For example, as potential jurors are being screened by the attorneys, if a citizen admits to being an expert in case-law regarding the key elements of the trial, he or she will be quickly dismissed. On the other hand, should a potential juror admit to being so indifferent to legal issues as to be unaware of even the illegality of the charges against the defendant, this person is considered an excellent candidate for the jury. The more serious the case, the more vigorous will be the search for the perfect juror.

Who is the perfect juror? Lawyers search for jurors who are so dimly aware of, and participate so infrequently in, their society that they have never come into contact with anything that might have provided them with information that they might use to form an intelligent and informed decision. This is because the attorneys want the jurors to only be conscious of information provided to them in court. A perfect juror, in their eyes, is a blank slate who can be effectively swayed by the words of lawyers. It makes no difference that adults who are “blank slates” are in this condition for a reason. So, by the process of negative selection, we arrive at a jury that is populated with individuals who are the least likely to employ complicated, nuanced reasoning when presented with evidence in court.

Having a jury of simple folk may have been workable in an age where the Cotton Gin represented the height of ingenuity, but is simply inadequate in modern times. Much of the physical evidence that jurors are expected to interpret today is highly technical, and many of the terms that will eventually decide guilt or innocence have definitions with multiple layers that require a depth of understanding to apply in real life. If the jury, during deliberations, recognizes this dilemma and asks for clarification or explanation of terms, they are usually told that this assistance would be inappropriate. This leaves them to grope about for a verdict with the same utter ignorance with which they first came to the courtroom. Confused jurors tend to ignore evidence, which favors the defendant (i.e., the O.J. Simpson jury).

The Simpson Jury (sketch by Bill Robles) - The forgettable 1995 reality show that demonstrated one of the major failings of the modern jury system.

Sometimes, jurors attempt to overcome their ignorance by educating themselves on the issues, but even this genuine search for truth is not allowed. In an article in the Baltimore Sun, this new concern about jurors using the internet to gain access to information not presented during the trial is examined. Judges, lawyers and legal experts wring their hands over cases of jurors doing “research” on the case as they attempt to reach a fair verdict. Remember, the perfect juror is clueless and remains completely dependent on their case’s lawyers for information. Curiosity, even in a quest for justice, is not permitted.

Another problem presented by the existence of advanced technology is what legal experts call “The CSI Effect.” This refers to the often unattainable expectations that many jurors have about the quality and breadth of forensic evidence in criminal cases. Many times, these “blank slates” sole knowledge of the judicial system comes from watching television programs where every crime leaves plenty of damning physical evidence, evidence that is scientifically conclusive, indisputable and easily understood by laymen. When prosecutors fail to present evidence that meets these unrealistic expectations, jurors assume that their case is weak and acquit the defendant.

Television and the media in general are responsible for another problem with juries: the celebrity juror syndrome. In high-profile trials, jurors may be oblivious to practical information that they could use to render an intelligent verdict, but they are very aware of the presence of cameras and reporters. Realizing that their willingness to participate in the media frenzy could give them their “fifteen minutes” of fame,  some jurors might begin to weigh the relative value of a particular outcome to their quest for celebrity.

Up to this point, I have been addressing criminal cases only, but I would be remiss if I didn’t mention civil juries. We have all read about outrageous monetary penalties levied by juries as the result of lawsuits, and perhaps wondered how such a figure might have been arrived at. This exposes another failure of the jury system: human emotion. In our stereotypical jury, emotion plays no role whatsoever in the verdict; only the evidence and the law are considered. In the real world, when witnesses are hurting, and when testimony is riveting and heartbreaking, juries respond favorably. Once you’ve seen the tears and heard the story, it becomes comparatively easy to punish the cold, impersonal corporation by giving away their money. It also makes you feel good, sort of like Robin Hood. Who wouldn’t want to be Robin Hood?

Having weighed the evidence myself, I am prepared to overturn the dysfunctional jury system and relegate it to the annals of history. I realize, though, that to do this, laws, and sometimes constitutions, would have to be rewritten. Since legislatures are dominated by elected lawyers and lobbyist lawyers, I’m also smart enough to realize that it will never happen. So it goes.

Ranking the Most Important Constitutional Amendments (post-Bill of Rights)

For today’s History List, I look at the lesser known amendments to our constitution that were ratified after the Bill of Rights. (Everyone knows the 1st and 5th amendments, but what about the 23rd?) I rank them as to how important they are today, not necessarily how important they were at the moment they were ratified.

And away we go:

1. 13th Amendment – Ratified almost immediately after the end of the Civil War, this abolished slavery in the United States, removing America’s original sin and fundamentally changing the nation’s character. Without this, the United States would have lacked the moral gravitas to act as a force for civil rights around the world.

2. 14th Amendment – Makes the citizenship of former slaves part of the constitution, removing any potential legal challenges or clever legislative devices to deny the benefits of freedom to those formerly held as slaves. This amendment was largely a reaction to the attempts of Southern states to so restrict the movements and activities of African-Americans as to return them to something very much like slavery.

3. 15th Amendment – Makes it unconstitutional to restrict voting based on race. Another Reconstruction amendment codifying the rights of former slaves.

4. 19th Amendment – Makes it unconstitutional to restrict voting based on gender. Giving women the right to vote took until 1920 – fifty years after African-Americans got the vote.

5. 24th Amendment – Another voting rights act, this time making it unconstitutional to compel voters to pay a tax in order to vote. These “poll taxes” were applied to Southern blacks as a way to discourage their voting. This amendment wasn’t passed until 1964, almost 100 years after the Civil War.

6. 16th Amendment – Allows a federal income tax. We may hate it, but this is how the massive machine that is our government gets paid for.

7. 12th Amendment – In the election of 1800 Thomas Jefferson and Aaron Burr, running mates in the Presidential election, tied in electoral votes. (In those days, vote-getter #1 became President, while the runner-up became Vice-President.) The contest went to the House of Representatives, where Burr almost wrested the presidency from Jefferson.  This amendment straightened out the process, making it clear to electors who was running for President and who was running for Vice President.

8. 17th Amendment – United States Senators used to be selected by state legislatures. This amendment elects them by a direct vote of the people.

9. 21st Amendment – repeals the 18th amendment (prohibition of alcohol), ending the gangster era and bringing drunkards out of closet.

10. 22nd Amendment- Ratified in 1951 as a response to Franklin Roosevelt being elected four times, this amendment restricts the President to two terms of office. This amendment had the unintentional effect of making every two-term president a “lame duck,” with limited power and influence. In reality, a president has a term and a half to get his agenda passed, after that, forget about it.

11. 25th Amendment – Clarified the order of Presidential succession. Here it is, in case you were wondering:

Office Currently Held By
1 Vice President Joe Biden
2 Speaker of the House of Representatives Nancy Pelosi
3 President pro tempore of the Senate Robert Byrd
4 Secretary of State Hillary Clinton
5 Secretary of the Treasury Timothy Geithner
6 Secretary of Defense Robert Gates
7 Attorney General Eric Holder
8 Secretary of the Interior Ken Salazar
9 Secretary of Agriculture Tom Vilsack
10 Secretary of Commerce Gary Locke
11 Secretary of Labor Hilda Solis
12 Secretary of Health and Human Services Kathleen Sebelius
13 Secretary of Housing and Urban Development Shaun Donovan
14 Secretary of Transportation Ray LaHood
15 Secretary of Energy Steven Chu
16 Secretary of Education Arne Duncan
17 Secretary of Veterans Affairs Eric Shinseki
18 Secretary of Homeland Security Janet Napolitano

12. 26th Amendment – In 1971, the voting age was dropped to 18, immediately causing millions of young Americans to ignore it.

13. 11th Amendment – Prevents states from being sued by citizens. Can you imagine how hopelessly clogged our court system would be if you could sue the government?

14. 23rd Amendment – In 1961, the voters of Washington, D.C. finally got included in the Electoral College. Democrats have been thankful ever since.

15. 27th Amendment – This amendment, which was only ratified in 1992, says that any Congressional pay raise (or decrease) cannot take effect until the next Congress is seated. In 1873, Congress tried to give themselves a 50% pay raise, backdated to the beginning of their terms! This ruse failed when the public caught wind of it.

16. 20th Amendment – Presidents used to be sworn in on March 4th, but with travel being much faster than it was in Washington’s day, this amendment changed the date to January 20, with Congress being sworn in on January 3.

17. 18th Amendment – (Prohibition of alcohol) This amendment tried to legislate morality and failed, giving rise to an era of speakeasies, gangsters and classic movies about speakeasies and gangsters. The 21st Amendment repealed it.