In Defense of Juries

 

shutterstock_121502677In a recent Investor’s Business Daily column, Yuri Vanitek suggests that citizen juries be replaced by a panel of professionals. He makes the argument that experts can do a better job determining guilt or innocence than regular folks, saying, “Imagine if modern hospitals relied on 12 random people, selected from a local phone book, to determine medical treatment — and refused to consider the counsel of doctors and nurses.” Considering the sometimes woeful results of jury trials, it sounds like a reasonable idea. It’s not.

As the brilliant G.K. Chesterton argued, there are some things too important to be left to experts. On professional judges, prosecutors, lawyers, and other officers of the court he said:

Strictly, they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore, the instinct of Christian civilization has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets. Men shall come in who can see the court and the crowd… and see it all as one sees a new picture or a play hitherto unvisited.

Our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men… When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round. The same thing was done, if I remember right, by the Founder of Christianity.

Add to Chesterton’s concerns the certainty that a caste of professional jurors would become politicized, giving up on the ancient protections of the jury system, whatever its faults, would be a mistake.

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  1. Hoyacon Member
    Hoyacon
    @Hoyacon

    I don’t know anything about the author of the IBD piece, but it’s kind of interesting that the “experts do it better” mantra is one of the cornerstones of progressivism.

    As to the point, federal law (i.e., for federal courts) likely prohibits this:

    It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.

    The Sixth Amendment, read literally, only guarantees an “impartial” jury, but the concept of a “jury of one’s peers” goes way back to the Magna Carta.  If there’s a problem in this regard, it’s more connected to the extreme gamesmanship practiced by some counsel during jury selection, not the concept itself.

    • #1
  2. Seawriter Contributor
    Seawriter
    @Seawriter

    Read “Is Administrative Law Unlawful?” That sold me on juries made up of everyday citizens.

    Seawriter

    • #2
  3. KC Mulville Inactive
    KC Mulville
    @KCMulville

    The jury system is more than a way to deliver a verdict for an individual. It’s also considered a responsibility of the community – something for which we need to take ownership. That shared responsibility for keeping justice, which includes judgment and punishment, is part of what makes us a community in the first place.

    You can concoct all kinds of argument with this kind of rhetoric – that whatever the topic, the only thing that matters is that we “get it right” for each individual. And then you hear arguments, for example, that raising children is important and we can’t afford to fail, so we should turn over the job to experts. This kind of rhetoric comes in sneakily, as when local teachers decide to “helpfully” assist parents at home by basically taking over the authority of raising kids. It’s all premised on the assumption that experts are better suited for each individual tasks, so why not turn the jobs over to experts?

    But these things aren’t just isolated “tasks.” They’re part of a way of life. Work, family, church, etc., are not just isolated “jobs” – they collectively form a larger whole, and give meaning to life.

    For all the things that combine to make life coherent and meaningful, who wants to focus on just one thing? That’s like wanting to have sex with only one part of the body. How boring!

    • #3
  4. Hoyacon Member
    Hoyacon
    @Hoyacon

    Seawriter:Read “Is Administrative Law Unlawful?” That sold me on juries made up of everyday citizens.

    Working my way through it.  Slightly O/T, but I learned a lot from “Separation of Church and State” by Hamburger, if you haven’t read it.

    • #4
  5. Goldgeller Member
    Goldgeller
    @Goldgeller

    Seawriter:Read “Is Administrative Law Unlawful?” That sold me on juries made up of everyday citizens.

    Seawriter

    I’ve been trying to get around to it. I have it. But put it down. Thanks for encouraging me.

    Juries of professionals would probably be bad. Bibas, in his “Machinery of Criminal Justice” does an excellent job of showing how the various systems we have in place when it comes to prosecutors and defenders has led to a type of goals displacement in the way we administer justice. He also cites some studies showing that punishments for many crimes are often far harsher than people would guess they should be (no background info) if you asked them. He also shows that juries, when they are allowed to alter sentences, do not systematically engage in miscarriages of justice in the modern era.

    He tries to normalize his own theories, but those are two important descriptive observations he makes.

    Adding a system of professionalized jurors makes me nervous. It is just another system with more goals to be displaced. Another class to become professionalized and insulated from the population it wishes to serve. No thanks. There are problems with a “jury of ones’ peers.” But I would take those problems over the problems a professionalized jury would bring.

    • #5
  6. KurtVH Inactive
    KurtVH
    @KurtVH

    I hear everyone who is saying you don’t want a government employee and that seems right one it’s force.  However, most lawyers will tell you that, if you’re innocent, you should almost always waive your right to a jury trial and go with the judge.  Most juries are just to ignorant of legal standards, such as beyond a reasonable doubt, to trust your freedom to.  If you’re guilty it may be a different story.

    • #6
  7. RyanM Inactive
    RyanM
    @RyanM

    Totally agree.

    The very concept of “experts” is ridiculous, as I find myself arguing with (my particular judge) rather often.  So which experts count?  The ones with opinion A, or the ones with opinion B?  The jury system allows for each side to present his own “experts” in an attempt to convince people who bring as little prejudice as possible to the table.

    There is no class of people more arrogant, and less deserving of our respect, than that class generally known as “experts.”

    • #7
  8. Seawriter Contributor
    Seawriter
    @Seawriter

    RyanM:

    There is no class of people more arrogant, and less deserving of our respect, than that class generally known as “experts.”

    I hate being called an expert. An ex is a has-been, and a spurt is a drip under pressure. I would prefer being thought of as a farmer, because farmers are out standing in their fields.

    Seawriter

    • #8
  9. The Reticulator Member
    The Reticulator
    @TheReticulator

    KC Mulville: And then you hear arguments, for example, that raising children is important and we can’t afford to fail, so we should turn over the job to experts.

    I used to tell teachers that education is too important to be left to educators.

    • #9
  10. The Reticulator Member
    The Reticulator
    @TheReticulator

    RyanM:Totally agree.

    The very concept of “experts” is ridiculous, as I find myself arguing with (my particular judge) rather often. So which experts count? The ones with opinion A, or the ones with opinion B? The jury system allows for each side to present his own “experts” in an attempt to convince people who bring as little prejudice as possible to the table.

    There is no class of people more arrogant, and less deserving of our respect, than that class generally known as “experts.”

    Often when we’re asked to accept the authority of experts, I point out that if these experts were any good they would be able to explain, convincingly, how they came to their conclusions.  And I’m the person who judges whether or not I’m convinced.

    • #10
  11. MarciN Member
    MarciN
    @MarciN

    This is a great post. I agree with all of it.

    • #11
  12. Larry3435 Inactive
    Larry3435
    @Larry3435

    I agree with the OP about the value of juries in criminal cases.  A criminal act is something that the man on the street understands quite well.  The same is true about an ordinary negligence case – a car wreck, a slip and fall, etc.  Ordinary people understand these things.

    But I have a different take when it comes to complex cases.  Anti-trust, medical malpractice, commercial transactions, trademark and copyright, product defects, and other complicated matters that are not within the experience of most people.  In such cases, my observation has been that the outcome has a lot more to do with who has the best lawyer than it does with applying the law fairly.  I don’t necessarily endorse the idea of “experts” deciding these cases, but I think the decision-makers ought to understand the basic subject matter well enough that the evidence doesn’t sound like Greek gibberish to them.  And it has been my experience that arbitration, with a mutually agreed impartial arbitrator who knows something about the subject matter, produces results that are more fair than what comes out of juries.

    • #12
  13. Cato Rand Inactive
    Cato Rand
    @CatoRand

    Written by someone who hasn’t a clue why juries exist.  Jesus Christ!  [redacted]!  We are truly on the road to hell.

    Juries, like the separation of powers, federalism, and democracy itself, are a way of checking the accumulation of too much power in too few hands.  History demonstrates without exception that absolute power corrupts absolutely.  That’s a law of human nature no more in question than gravity is as a law of physics.  I would probably surrender the right to vote before I’d surrender the right to trial by jury.

    Criminal trials are the exact point at which the power of the state comes into crashing conflict with the liberty of the individual.  There is no more important place to have a mediating institution under the control of neither.

    • #13
  14. Tom Meyer Member
    Tom Meyer
    @tommeyer

    RyanM:Totally agree.

    The very concept of “experts” is ridiculous, as I find myself arguing with (my particular judge) rather often. So which experts count? The ones with opinion A, or the ones with opinion B? The jury system allows for each side to present his own “experts” in an attempt to convince people who bring as little prejudice as possible to the table.

    <mode = “devilsadvocate”>

    So, therefore, you think your clients would be no worse off representing themselves than being represented by you?

    </mode>

    • #14
  15. Quietpi Member
    Quietpi
    @Quietpi

    KurtVH: However, most lawyers will tell you that, if you’re innocent, you should almost always waive your right to a jury trial and go with the judge.

    In my experience, this is not true.  I had heard it said many times before I became a private investigator.  The decision turns instead, if it turns at all, on whether the defense is a matter of facts (go jury) or law (go court).  But in fact, even then, court trials are extremely rare, and for good reason.

    But a major problem remains, and I’ve witnessed it getting worse.  Juries sometimes make horrible mistakes even when faced with indisputable facts.  And I have had people tell me that they would lie in order to get on a jury.  We rely on moral, rational, relatively intelligent individuals to serve on juries, and such people are becoming the exception rather than the rule.

    Funny, in a sick sort of way.  My PhD father-in-law seemed to get called for jury duty a lot.  The moment either side learned that he was a college professor, he was excused.  When his occupation became “retired,” he was seated.

    Nevertheless, I am NOT in favor of professional juries.

    • #15
  16. Cato Rand Inactive
    Cato Rand
    @CatoRand

    anonymous:

    Larry3435: But I haveadifferent take when it comes to complex cases. Anti-trust, medicalmalpractice, commercial transactions, trademark and copyright, product defects, and other complicated matters that are not withinthe experience of most people. In such cases, my observation has been that the outcome has a lot more to do with who has the best lawyer than it does with applying the law fairly. I don’t necessarily endorse the idea of “experts” deciding these cases, but I think the decision-makers ought to understand the basic subject matter well enough that the evidence doesn’t sound like Greek gibberish to them.

    Blue ribbon juries (composed of people with knowledge of the subject matter of the case) can be used in some civil cases with the consent of both parties. Blue ribbon juries are not permitted in criminal cases.

    Civil trials are different.  Both litigants tend to have sophisticated counsel who are more evenly matched, and choices can be made.  In my experience it’s not at all uncommon to agree to a bench trial.  Both sides feel like they’ll get better consideration of complex issues.  And something like specialized juries, masters, or whatever — they go by different names — are becoming more common in commercial disputes that are technically complex requiring special expertise.  Often those things can be spelled out in advance in an arbitration clause, etc.  Just a lot more options in civil trials.  My earlier comment focused on criminal law, where traditional juries are truly critical.

    • #16
  17. Tom Meyer Member
    Tom Meyer
    @tommeyer

    So, to be clear, I think having (at least) the option to be tried by a jury of one’s peers is for the best, warts and all.

    I do sometimes wonder, though, whether our current system of choosing jurors could be improved. It seems that voir dire is designed not merely to discriminate against the biased, but against anyone with a passable level of knowledge about anything relevant.

    • #17
  18. The Reticulator Member
    The Reticulator
    @TheReticulator

    Tom Meyer, Ed.:So, to be clear, I think having (at least) the option to be tried by a jury of one’s peers is for the best, warts and all.

    I do sometimes wonder, though, whether our current system of choosing jurors could be improved. It seems that voir dire is designed not merely to discriminate against the biased, but against anyone with a passable level of knowledge about anything relevant.

    My experience in our county courthouse is that it’s very difficult to get removed from selection during voir dire, no matter how much a bomb thrower I make myself out to be.

    • #18
  19. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Another place for our excess of lawyers to appear employed?

    • #19
  20. Isaac Smith Member
    Isaac Smith
    @

    Seawriter:Read “Is Administrative Law Unlawful?” That sold me on juries made up of everyday citizens.

    Seawriter

    Its in the stack.  I am still in shock that my alma mater would hire a guy who would write such a book.  Strauss must be rolling in his grave.

    • #20
  21. RyanM Inactive
    RyanM
    @RyanM

    Tom Meyer, Ed.:

    RyanM:Totally agree.

    The very concept of “experts” is ridiculous, as I find myself arguing with (my particular judge) rather often. So which experts count? The ones with opinion A, or the ones with opinion B? The jury system allows for each side to present his own “experts” in an attempt to convince people who bring as little prejudice as possible to the table.

    <mode = “devilsadvocate”>

    So, therefore, you think your clients would be no worse off representing themselves than being represented by you?

    </mode>

    haha – no, but I’m providing an expert service.  Same with a doctor or an electrician or anything else.  But we’re talking about trials.  Would you take my word for it regarding someone’s guilt or innocence, simply because I’m an expert?  Even a doctor or an electrician, I think those people might know terminology, but the value of that is actually outweighed by professional biases.

    Here’s a real-life example, from my own court.  We often see “parenting assessments,” by “experts.”  These are psychologists with experience…  or “neuropsychological assessments” by psych doctors.  If that report says “person X is incapable of parenting,” do you think a judge should blindly accept that?  It scares the hell out of me to see that many judges do.

    Experts have limited use.  A psychologist might be uniquely qualified for therapy or medication; but testimony that you’re never going to be capable of parenting?  That’s a misuse of experts.

    • #21
  22. Isaac Smith Member
    Isaac Smith
    @

    The Reticulator:

    Tom Meyer, Ed.:So, to be clear, I think having (at least) the option to be tried by a jury of one’s peers is for the best, warts and all.

    I do sometimes wonder, though, whether our current system of choosing jurors could be improved. It seems that voir dire is designed not merely to discriminate against the biased, but against anyone with a passable level of knowledge about anything relevant.

    My experience in our county courthouse is that it’s very difficult to get removed from selection during voir dire, no matter how much a bomb thrower I make myself out to be.

    “It’s like we were saying at coffee this morning, Pete [addressing the prosecutor], the guy sure seems guilty as sin, but I’ll keep an open mind.  At least as best as I can when someone is as obviously guilty as he is.”  Works best if the prosecutor is named Pete.

    • #22
  23. RyanM Inactive
    RyanM
    @RyanM

    Tom Meyer, Ed.:So, to be clear, I think having (at least) the option to be tried by a jury of one’s peers is for the best, warts and all.

    I do sometimes wonder, though, whether our current system of choosing jurors could be improved. It seems that voir dire is designed not merely to discriminate against the biased, but against anyone with a passable level of knowledge about anything relevant.

    Agreed.  And if as a lawyer, you don’t use Voir Dire to present a bulk of your argument, you’re not doing your job…  that’s a big problem.  I’m also not a fan of many of our civil courts, which really are much more like administrative courts.  Yes, there are major tweaks that need to happen, but deferring to experts is a step in the opposite direction.  We need to be placing less faith in experts, not more.

    • #23
  24. Isaac Smith Member
    Isaac Smith
    @

    Isaac Smith:

    Seawriter:Read “Is Administrative Law Unlawful?” That sold me on juries made up of everyday citizens.

    Seawriter

    Its in the stack. I am still in shock that my alma mater would hire a guy who would write such a book. Strauss must be rolling in his grave.

    My bad, he’s still teaching – so presumably not dead yet, though with tenure one is never certain.

    • #24
  25. Isaac Smith Member
    Isaac Smith
    @

    Quietpi: We rely on moral, rational, relatively intelligent individuals to serve on juries, and such people are becoming the exception rather than the rule.

    Even more so if they’re experts.

    • #25
  26. MarciN Member
    MarciN
    @MarciN

    Larry3435: But I have a different take when it comes to complex cases. Anti-trust, medical malpractice, commercial transactions, trademark and copyright, product defects, and other complicated matters that are not within the experience of most people.

    But wouldn’t that issue be compensated for by actually choosing a “jury of one’s peers”? Not age and ethnic peers but, say, in medical malpractice cases, doctors? In other words, “peer” needs to be broadened to include one’s professional peers?

    • #26
  27. MarciN Member
    MarciN
    @MarciN

    In Massachusetts, if you have a driver’s license, you can be and will be called to serve on a jury once every three years.

    Our jury pool management system is considered one of the best in the nation because it is very considerate of the jurors. We use a one day or one trial standard, and the courts are very nice to the jurors.

    People don’t mind it.

    So given the size of the pool here, you should be able to get professional “peers” as well as peers by age and ethnicity.

    • #27
  28. Seawriter Contributor
    Seawriter
    @Seawriter

    The Reticulator: My experience in our county courthouse is that it’s very difficult to get removed from selection during voir dire, no matter how much a bomb thrower I make myself out to be.

    Here is how to get off a criminal jury. At some point when the judge asks if the jury pool has any questions, stick up your hand. When you get called on, tell the judge, “I’m confused. If he [the defendant] wasn’t guilty, why did the police arrest him?” You need to look truly puzzled and sound absolutely sincere when you ask the question.Whatever the judge tells you, continue to look bewildered, and say in a way that makes you sound really clueless, “Okay. I understand now.”

    Make sure you sound sincere, otherwise you might get in trouble.

    If the defense attorney does not ask to have you struck, the attorney is committing malpractice.

    Seawriter

    • #28
  29. Hank Rhody Contributor
    Hank Rhody
    @HankRhody

    Larry3435: But I have a different take when it comes to complex cases. Anti-trust, medical malpractice, commercial transactions, trademark and copyright, product defects, and other complicated matters that are not within the experience of most people.

    This isn’t an argument for expert juries so much as an argument that the laws are too complex. If they can’t be explained to a reasonably intelligent and mature adult then they can’t be very good laws.

    • #29
  30. Al Sparks Coolidge
    Al Sparks
    @AlSparks

    I’ve read, and I’m going by memory and don’t have anything to cite, that before jury selection became more formalized, that in some smaller jurisdictions it was common to repeatedly pick certain people to serve on a jury.  I would say this happened up until the 1950’s.

    They were usually retired, on a fixed income, and it was a way for them to supplement that income.  They also had nothing else to do.  In a way they were professional juries.

    Obviously whole juries were not composed of such people.

    • #30
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