TCS Daily


Jury Duty No More

By Alex Knapp - February 13, 2006 12:00 AM

Recently, the Kansas City Star ran an article about how the omnipresent TV franchises Law and Order and CSI were having a significant impact on how jurors deliberate in criminal cases. According to the article, more and more jurors are declining to convict unless they can see hard, indisputable forensic evidence. So far, so good, right? After all, if jurors are demanding better evidence, then convictions ought to be more reliable, right?

Not quite. It happens that in the world away from television, there isn't always a team of forensic scientists armed with bleeding-edge equipment scouring every crime scene. Even if there were, the fact is that there often isn't any forensic evidence. One noteworthy story in the article describes how a jury acquitted a man of murder, even though the victim's daughter positively identified him. Why? Because there was no forensic evidence. And CSI has led people to believe that they need forensic evidence in order to convict.

This story does more than simply illustrate how TV can influence the thinking of regular people. It also points to one of the fundamental problems with the justice system today: the jury system itself.

America's justice system demands that the jury serve as the finder of fact. Its job is to sift through the prosecution/plaintiff and defense's arguments and determine what actually happened. Despite this responsibility, little training is provided to jurors as they are thrown headlong into what are sometimes extraordinarily complicated cases involving factual intricacies. The end result? Wildly inconsistent verdicts that make it much more difficult for parties to determine the outcome of any particular trial.

The status quo jury makes little sense in the present context. If you were on trial for murder -- or subject to a lawsuit that could deprive you of your freedom or of all your assets -- would you really want your fate to be decided by 12 people literally picked at random from off the street?

So why do we stick with this centuries-old tradition? Why not modernize the justice system so that fact-finding can be fair, consistent, and correct?

One reason the jury system can't simply be scrapped is the Bill of Rights, which provides the right to a jury trial in both criminal and civil cases. Nowhere in the Constitution, though, is it demanded that such juries be comprised of 12 random people who may have few critical thinking skills, no knowledge of the scientific method, and a skewed understanding of today's evidence gathering techniques. The Constitution merely demands that juries be impartial. So there is one possible reform of the jury system that should be able to pass constitutional muster.

Professionalize juries.

Rather than have the facts of a case determined by untrained citizens, have those facts be determined by people who have received specialized training in reasoning skills and the scientific method, and have them paid for it with a decent salary. These people might be trained and licensed through a specialized course, or perhaps have a relevant degree, such as a B.S. in the sciences.

There could be a number of benefits to using professional juries. For one, consistent training will lead to consistent results in trials. More consistent outcomes mean that individuals and businesses are better able to plan the consequences of any potential litigation. More predictable outcomes also lead to fewer trials and more settlements, because trials would be less of a crap shoot than they are today.

More important than consistent results are results that are more likely to be correct. A jury that is trained in properly evaluating evidence is more likely to arrive at an accurate conclusion with respect to the trial's outcome. Additionally, professional jurors would be more familiar with the trial setting, and would accordingly be less likely to be confused or intimidated by the proceedings. That familiarity would ensure that the jury is focused on testimony and evidence, and not distracted by the unfamiliar surroundings.

Indeed, such comfort with the proceedings might work towards strengthening another important role of juries: the check against arbitrary government action. A professional jury, confident of its role as fact-finder, would be more likely to distinguish when an action against an individual is legitimate, and when such an action is meant to intimidate or harass.

After all, a professionally trained jury is unlikely to judge a case based on standards presented to them by CSI or Law and Order. Instead, they'll judge a case based on logic, the scientific method, and the actual evidence presented at trial. Who knows? If the professional juror idea catches on, they might just get a show of their own.

Alex Knapp is an attorney and writer. He is the co-author of the weblog Heretical Ideas.

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12 Comments

Funding
Who would pay the salaries of these "professional juries" and please don't say the taxpayers?

professionalism = corruption
Some of the problems with a 'professional' jury is that their impartiality could be corrupted and they could become agenda/ policy driven.

As originally conceived, the Federal government was hoped to be impartial and not overwhelmingly corrupted by any specific agenda or policies. As a matter pf fact, Madison counted on that when he proposed a Republican form of government.

Well, we've seen how that has failed. Our government has been completely corrupted by those whose agenda consists of a massively centralized 'professional government' that routinely violates the natural rights of its citizens.

So, if you were a Jew and the 'professional jury' was comprised of Muslims, would you get a 'fair trial'? I think not.

Citizen jury is essential to preserving liberty
The author of the well-intentioned piece misses the most important role of the jury.

In a free society, with a limited government, who should find a citizen guilt of a crime, government or fellow citizens?

Under the jury system we have, a citizen must be judged by two juries of his peers before he can be convicted of a crime. Government cannot prosecute a crime until the indictment is approved by a grand jury composed of independent citizens. At the trial, it is the petit jury who decides if the person so charged is guilty. And both are juries picked from local citizens.

This is the most important aspect of our justice system. We are so sensitive to appearances of confict of interest, indeed many people who watched the Alito confirmation hearings endured seeminly endless questions as to why he did not recuse himself in the matter of a case involving a mutual fund he held. We dismiss health research reports published by tobacco companies, don't we? If a person receives payment from a party we are right to question if his judgement is shaded by those payments.

Why would we cast this care aside and assume that professional jurors who are on the same payroll that the judge and prosecutor are on would not be biased in any way, especially in tax cases.

Nothing stops a government from making an everyday activity a crime. Indeed, we come close to this in outlawing public smoking. We have many laws that if strictly enforced would have most people in violation. Have you ever thrown a rechargable batter away in the trash? You could be charged with a felony except that no jury would vote to convict.

On the other hand, a "professional" juror has every reason to reach a technically proper decision as opposed to one based on community standards of justice. The old saw about convicting a ham sandwich would at last come true.

Our founding fathers were far wiser than we give them credit for. They gave us a system based on justice, and justice that comes from people who may be otherwise powerless to reign in a runaway government.

I would suggest that anyone interested in the power of the citizen jury look at www.fija.org, the web site of the Fully Informed Jury Association.

Or read their Juror's Handbook: http://www.caught.net/juror.htm

see also:
http://www.constitution.org/jury/jury_link.htm

An Essay on the Trial by Jury — Written in 1852 by Lysander Spooner:
http://www.geocities.com/Heartland/7394/lysander.html

fairness
If you were a Jew, and the jury consisted of Muslims, professional or not, your chances of getting a fair trail would be slim to none.

capturing the process
I think I agree with the gist of your objection. As attractive as is the idea of a jury of trained, intelligent people, I fear that the use of professional juries would lead to the all-too-familiar phenomenon that public choice economists call capturing the process. The idea is that the incentives to being a professional juror would fail to attract the kind of people we actuallyl want as professional jurors.

You got it buckwheat
Amen and, more concisely put, a jury is the 4th branch of government.

If the first three branches make a law we don't like? NOT GUILTY!

The real problem...
...is not that 12 competent jurists cannot be found on the street. It's that the competent ones are routinely excluded from juries. Want to get out of jury duty? Just tell them you have a PhD in law or are a surgeon or a lawyer or a partical physicist. You'll be bumped off the jury automatically. The solution is to not allow defense attorneys to exclude jurists just because they are too smart and can potentially see through the BS.

Professional Juries
There is only ONE way professional juries could possibly work, and even that would be iffy. If the juries were provided by private companies, who submitted bids to provide jury services for each individual jury trial, the idea might work. Done any other way, your juries WILL be corrupt. You can bet on that. If the juries were paid by the government, or provided by a company with a long-term government contract, you will not have impartial juries. Instead, you will have juries that are either afraid that too many innocent verdicts mean the government will fire them, or too many innocent verdicts mean their company will lose the gov't contract.
The first part of the real answer is to pass the Fully Informed Jury Act in every state, and federally, and to enforce it. For information, go to http://www.fija.org
The second part of the real answer is to change the system so that we have truly random juries, rather than juries that the lawyers have picked over and dismissed anyone with a three digit IQ, so that the jurors know that TV is not real life. Currently, the lawyers and the judges purposely make sure their juries are as stupid as possible--and then, they have the nerve to complain when their hand-picked juries turn out to be too stupid to realize that what happens on TV is not what happens in a real courtroom.

I wasn't surpised
I wasn't surpised to see that this proposal came from a lawyer.

Why is it that lawyers seem to be more concerned with the law than justice? And of course, they pick and choose what laws to be concerned with.

It can be done!
In various countries throughout history, trials have been carried out before panels of Magistrates (often an odd number like three or five, to prevent hung decisions).

These officials--usually experienced trial lawyers and/or former judges--are familiar with the law and the legal process, and cannot be bamboozled or intimidated by a devious or aggressive attorney (or swayed by popular opinion; O.J. and Michael Jackson come to mind...)

In Anglo-Norman Common Law, the ancestor of the American legal system, trial by a jury of one's peers meant just that--being put under the scrutiny of your fellow townsfolk, who would have known you and your family (often for generations) and could, therefore, reliably determine your guilt or innocence.

In America (and elsewhere) today it is a group of 12 randomly-picked people, who see jury duty as an inconvenience (and are there by default, because they couldn't weasel out of it), who decide your fate. Given this fact, and the tricks attorneys use to weed out "unsuitable" jurors, your chances of getting anything resembling a jury of your peers are somewhere between squat and bupkus.

The American legal system consistently produces jury verdicts that are the laughing-stock of the world. I'd say it's time we did something about this, and replacing groups of coerced citizens with trained, professional, accountable Magistrates would be a good start. Some could be elected by the public, some appointed, and some could serve ex-officio; some formula could be set up so that We the People would indeed have a say in the workings of our justice system.

No Subject
I disagree. I've served on a jury before and all the people there seemed to be fairly reasonable people.

That being said, I don't think I'll ever go with the appointed lawyer for defense. His entire defense was "the defense rests". And this was after the prosecution brought up pretty good evidence to convict. Needless to say, the jury found the defendant guilty and it probably didn't take more than 10 minutes to reach that decision.

...All the Alternatives Are Worse
Every time I hear about a Menendez jury, or an O.J. jury, or a mega-million-dollor settlement bamboozled out of a bunch of befuddled citizens on behalf of irresponsible, money-grubbing plaintiffs, I think: there's gotta be a better way.

But resort to professional juries is an open invitation to takeover by the most aggresive political agenda mongers. And I can think of several dreadful, poisonous agendas I don't want to give more power to.

Giving power to the citizens guarantees the messy, often stupid ruction we call "politics." The problem is: all the alternatives fallen humankind has ever tried are worse.

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