TCS Daily


Professional Juries, Out of Order

By Douglas Kern - February 27, 2006 12:00 AM

In "Jury Duty No More," Alex Knapp asks: "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?"

Why not? It's no worse than trusting those same twelve people with the vote.

In his recent TCS essay, Knapp identifies some troubling problems with the jury system. But his proposed solution of professional juries would solve none of these problems, even as it would introduce new problems of its own.

In a sense, the professional jury solution already exists. So you don't want to be judged by twelve idiots off the street? You want a professional, well-trained, experienced finder of fact? Okay. Waive your right to trial by jury and let the judge decide the case. But this solution solves little; I know of no evidence to demonstrate that bench trials yield "better" or more consistent results than jury trials. If unprofessional finders of fact constituted an insuperable impediment to justice, everyone would opt for bench trials. But bench trials for felonies and multimillion-dollar lawsuits are rare. Perhaps defendants know something that Alex Knapp doesn't.

Consider, too, that education is no guarantee of reliability or good judgment. Neither a sheepskin nor a license can unmake a fool. I know scores of highly educated people, all knowledgeable about science, sociology, and law enforcement. Many of these geniuses lack a whit of common sense. You wouldn't want these nincompoops judging a beauty contest, let alone major litigation or serious crimes. Why should we believe that brainy folk have some unique capacity to separate the truth from lies? I find that the opposite is true: smart, educated people tend to over-estimate their ability to understand human nature and malicious deception. Intelligence lends itself just as freely to delusion as it does to wisdom.

And how would professional juries be perceived? How will Americans feel about professionals who draw a government paycheck for the primary purpose of shipping lower-class defendants out of society? When only one adult out of five holds a four-year college degree, how can anyone consider a panel of college-educated professionals to be "a jury of one's peers" for the average defendant? And realize: in a system of professional juries, your freedom and your finances would be won or lost based upon the thoughtful deliberations of government employees. Government employees. Do you trust the government that much? Does anyone?

Professional juries would be expensive. Not many jurisdictions can afford twelve well-paid professionals to hear cases year-round. And twelve is the bare minimum; most jurisdictions would need to hire more than twelve jurors, for those instances in which multiple courtrooms are in trial. Throw in alternate jurors to cover sick leaves and vacations, and even tiny jurisdictions would need to pay professional-grade salaries to over thirty new employees -- employees who might work for only a week or two out of a given month. By contrast, unprofessional jurors are only paid for the days that they hear cases, and their "pay" is often as little as five dollars per day. That's appallingly low -- and vastly cheaper than Knapp's alternative.

Knapp observes that professional jurors would be "more comfortable with the proceedings." That's bad. A comfortable juror is a juror who will make assumptions. Our system of justice goes to great lengths to ensure that juries hear only what they are supposed to hear, see only what they are supposed to see, and refrain from drawing their own conclusions about legal matters. A comfortable, experienced jury may decide cases based on matters not in evidence -- and that's unfair. For example: in many trials, the jury will never hear about the prior criminal record of the defendant. The system presupposes that if a jury isn't told about the defendant's prior record, it won't consider the possibility of such a record when deliberating on the case. But an experienced professional jury will know that many if not most defendants have long prior records that can't always be admitted into evidence. Such a jury might well vote to convict a defendant based on reasonable but unsupported assumptions about the defendant's criminal record. And how can a defendant rebut a jury's reasonable but unsupported assumptions? A professional jury will soon learn how the legal game is played, and it will make decisions accordingly -- even though fair trials require juries to ignore legal gamesmanship.

Additionally, a professional jury is likely to pick up the habit of rubber-stamping "guilty" verdicts. Harsh but true: most defendants are guilty, and most juries render a verdict of guilty. When you've participated in twenty-seven trials and handed down a guilty verdict in twenty-five of them, will you hang on every word of trial number twenty-eight? Or will you assume that this trial will almost certainly end with a guilty verdict no matter what the lawyers say? A professional jury may find that voting "guilty" is easier than paying attention, and it gives the same result. Grand juries constantly fall into this trap; after handing down true bill after true bill after true bill for months at a time, many veteran grand juries will indict just about anything that a prosecutor brings to them. (Hence the old legal chestnut: "You can indict a ham sandwich.") If grand juries frequently devolve into indictment machines after a few months of service, why should we assume that a full-time professional jury would be any more conscientious?

Don't forget the educational effect of jury service. Every year, thousands of ordinary Americans serve on juries. This service gives them an extraordinary and unforgettable lesson in law, justice, and civic obligation. Jury duty creates better, more knowledgeable citizens. With professional juries, we lose that benefit.

Finally, it's true that juries have botched unusually complex or challenging cases -- but how many cases are unusually complex or challenging? In my experience, 99% of trials hinge upon elementary questions of evidence, causation, and observation. You might read about a multi-faceted, O.J. Simpson-type case in the papers, but you won't read about a hundred other cases that only involved a handful of witnesses and largely uncontested facts. Admittedly, some specific forms of civil litigation touch upon unreasonably complicated legal and factual issues. Non-experts should not try to decipher the Rosetta stone of advanced anti-trust law. A professional jury might be useful in such cases -- but should we completely revise the jury system in the United States in order to address a small handful of unusual situations?

Amateur juries aren't perfect. Any trial attorney can regale you with horror stories about juries under the status quo. Logically impossible verdicts, bizarre questions to the judge, dishonest answers to attorney questionnaires, and strange behavior during trials -- if it's stupid and unjust, some juror somewhere has done it. Changes are clearly needed. Knapp correctly observes that jurors need better compensation and training. Similarly, we need to make jury duty easier for middle-class and upper-class workers. Perhaps we could allow citizens to volunteer for jury duty at times convenient to them. (Many capable people would love to perform jury duty -- but they're never called, or called when they can't participate.) Juries could be permitted to play a more active role in questioning witnesses, and judges could be required to explain the relevant laws, standards, and definitions to the jury at the beginning of a trial, as well as the end. A jury should know the definition of "reasonable doubt" (or, in civil cases, "preponderance of the evidence") before hearing a single word of testimony.

But a professional jury system is not an acceptable reform. In a free society, justice cannot be delegated to professionals. It's worth the occasional poor decision or inconsistent verdict to ensure that the law cannot punish a man without the permission of twelve ordinary citizens. For what is a citizen, if not one whose non-professional judgment ought to be trusted? And if our society trusts that judgment so little that the hardest questions of justice must be outsourced to "professionals," in what sense are we still citizens?

Douglas Kern, a lawyer living in Virginia, is a TCS contributing writer.

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5 Comments

Juries
I agree completely. It is not without reason tha the Bill of Rights includes an article guaranteeing trial by jury. Of all the people in the courtroom, the jury members are the only ones there who aren't either government employees or officers of the court. They are the defendant's last-ditch defense against an overzealous prosecutor. They arethere to represent the public at large, both to convict criminals, and to protect the innocent against government persecution.

It's worth noting that the Fugitive Slave Act became a dead letter before the Civil War because northern juries refused to convict people aiding escaped slaves. A professional jury would most likely have voted for conviction.

Professional juries
To me, this debate misses the basic issue: jury selection challenges. Individuals with knowledge of a particular subject regularly are rejected as jurors in disputes involving that subject.
Also, the expert witness business is corrupt. Frequently, expert witnesses are biased or are paid to be so. A great number of them are actually ignorant of the issues or even the subject.
Frequently, experts are chosen because they agree to support the arguments of one side.

How so?
How can jury selection be a challenge?

I have only been called for jury duty 3 times: in 1979, 1986 and 1988.

In 1979 I was excused from showing up because I was a full-time student and the trial was set to begin during exam week. I volunteer for the following week, but was told they didn't need me.

In 1986, I was excused because I had military orders sending me out of state.

In 1988, I showed up in a room of about 75 people for jury selection. I never found out what the trial was about, but one question on the questionare we all filled out was: "Have you ever been a military officer?" I answered: "Yes, Currently" and was dismissed based on the questionaire without seeing the judge or any of the lawyers.

I assume this was because the defendent had military connection and had a reasonable assumption by the defense that military officers would be more likely to come down hard on a member of the military that disgraced himself. if this assumption was true, then I think the rejection was reasonable.

I have been a resident of the same county in Florida since 1994 and have not been called once.

If it were hard to fill juries because of challenges, then I would expect to have been called a lot more often.

The idea of profession juries must have come from a rich liberal, because it smacks of the "we know what is best for you" elitism that they espouse best.

Professional Juries
Perhaps we could use law students or persons involved with the legal system at any level? They should at least have a working knowledge of some aspect of the legal system. Retired judges, lawyers, law clerks, para legals, police, corrections officers would be a wonderful jury pool on a rotating basis. They could also make more money for retirement or school.

Nullification
Professional juries would eliminate the only direct vote citizen have in making law.
Juries can vote not guilty, in spite of evidence, if they do not believe the law is fair, jury nullification, but the judge won't tell you that.
The judge will tell you that you can only make your decision by weighing the evidence against the law.
If that is all that is required, why bother with a jury?

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