Marcel Knudsen

Juries and Democratic Legitimacy


ISSUE 2 | BREAKING THE LAW | MAR 2011

Since juries are often considered uninspiring, I will try to grab your attention with three trivia items. One: In England, the birthplace of the modern jury system, less than 5% of criminal trials are decided by juries. Two: Jurors can rule however they wish without penalty. Three: Socrates and the Haymarket 8 were condemned by juries for their antagonistic relationship with an established order, rather than for any particular crime. The significance of the jury system is partly revealed by its role in historical controversies. When trying communists or foreigners, public jury trials have acted as an echo chamber for society’s fears and biases. When policemen or escaped slaves evaded punishment, social fissures and discontent were highlighted. But despite these blemishes, throughout history the use of jury trial allowed for the direct participation of citizens in the exercise of state authority. Jury cases continue to be a tool for legitimation of the state and a key site for popular participation.


Illustration by Nora Whelan

This essay begins with a question: if juries have played a crucial role in conflicts throughout American history, why do we consider them apolitical? From the Revolutionary to the Civil War, juries represented a form of local resistance. More recently, juries have highlighted racial and economic divisions. And although most of the important cases in American history were argued before the Supreme Court, they represented countless others in which juries had to make sense of a controversial case. You would think this history would lead Americans to consider the jury system to be an important place for citizen voices—a sentiment that was expressed by the drafters of the Constitutions. But instead we tend to think that juries play only a minor role in the judicial system. We are used to thinking of the Supreme Court as the place where judicial history is made. In contrast, our vision of the jury as populated by apolitical “everymen” leads us to avoid jury duty, when in actuality we should welcome the power it gives us to evaluate the morality of the state. But it is notable that juries have honored the wishes of the state more often than not. The lack of deviance on the part of juries in modern times is indicative of the slow and steady devaluation of juries during the 20th century.

When the Bill of Rights was being drafted, Alexander Hamilton observed that participants unanimously agreed on the right to trial by jury, but there was some disagreement as to whether it was a “valuable safeguard to liberty” or “the very palladium of free government.” In fact, before the revolution, American resistance often took place in a legal setting, and the British had difficulty convicting American merchants and smugglers in jury trials even in the presence of clear evidence. When passing bills such as the Stamp Act, Parliament put trials in the hands of royally appointed judges. As a result, the early Americans saw trial by jury as a direct counterpart to representative governance, giving the people a clear role in the legal system alongside the political one.

The right to a jury in criminal trials was wholeheartedly supported by the American revolutionaries and enshrined in the 6th Amendment. The use of juries in civil trials, which are brought by one private party against another, was more controversial, as the Federalists worried that it would hurt the business climate of the new country. The result is a fairly significant set of differences between civil trials and criminal ones. In most criminal trials, the jury’s decision must be unanimous in order to convict the defendant. In civil cases, the 7th Amendment has been interpreted as limiting the jury to trying facts, while the judge determines which laws are applicable to a case. Civil trials generally require only ten out of twelve jury members to reach a verdict, and loosen the burden of proof from the ‘reasonable doubt’ standard. While in some cases, the parties agree to take the decision to a bench judge, jury trials are the primary recourse for any defendant. For the accused, the involvement of the jury ensures a verdict independent of the power of the state.

Trial by jury has been one of the cornerstones of American democracy from the start. It provides a direct check on the ability of the state to imprison and intimidate citizens. But the jury system is different from representation by vote in that jurors take an active role in casting judgment and curtailing the freedom of their fellow citizens. Arguably the closest analog to direct democracy in the U.S., jury trials provide legitimacy to the decision to jail, fine, or acquit individuals. As a result, juries have played the important role of providing the state with the affirmation or disavowal of the people, and have continued to shape the way the legal system works.

It is the ‘everyman’ aspect of jurors that convinces us that juries are generally fair. In the most well-known movie about juries, “12 Angry Men,” the drama in the jury recess is partly about the evidence, partly about the juror’s backgrounds, but in the end they make a decision that the audience considers fair. In fact, the symbolic appeal of jurors is not that they are representative of the population. Instead, when Thomas Jefferson advocates the use of juries, he points to “common sense” as a crucial ingredient that a group of twelve ordinary men can bring to a trial. It is trust in an everyday sense of justice and responsibility that allows us to confidently place justice in the hands of laypeople. And given the effectiveness of the jury system, this confidence is not entirely misplaced. In a jury box, people become, or appear to become, responsible, impartial judges who won’t be swayed by the social status of the defendant or the prestige of the state. The belief in a fair and just judicial system is essential to the state’s legitimacy, and the ability of jurors to take on the role of independent arbiters has ensured an equilibrium between the desires of the state and the rights of defendants.

Given the symbolic and practical significance of juries, one would think that jury duty would be highly valued in society. Instead, strangely enough, many of us consider jury duty to be a temporary inconvenience that involves convincing the court that we are not a good fit for the case. When most of us think of juries, we think of drudgery and jury duty. In ancient Athens, a place on a jury was often seen as an annoyance. In our country today it joins voting and taxes as one of the few cases where we directly experience the state, and is considered burdensome rather than empowering. Cases seem straightforward, jury members interchangeable, and our particular role irrelevant. Our collective apathy can lead us to forget that every case is ultimately about the liberty and livelihood of the defendant. In contrast to the negative perception of jury duty, service on a jury is a source of political power and an essential right worth exercising.

Because we closely associate juries with representative government, it may seem strange to U.S. natives that many countries in the world do not allow the laypeople involvement in the legal system. Juries are most common in countries influenced by the English common legal system, but many of those have limited the role of juries over the past century, with Israel eliminating it altogether. Most continental European countries, due to their history of civil law and strong central governments, have no jury system or a very limited one—a split panel of judges and lay jurors for murder and serious crimes. In France, for example, juries have a role in some criminal cases, but they play no role in the German legal system.

A parallel to the jury system may be found in mandatory civil or military service, although this direct role in the state bureaucracy does not include a means to check its power. But civil service is being phased out in countries such as Germany, making voting rights the sole check on state power. The 20th century has seen widespread democratization based on voting rights, but this has often resulted in removal of direct participation from political and legal systems.

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In 1885, eight anarchist leaders were brought to trial in Chicago. They had organized and given speeches at an event in Haymarket Square in response to the fatal shooting of two strikers a day earlier. When police came to break up the event, a bomb was thrown, killing a policeman, and seven more died from friendly fire in the chaos. The jury was assembled by asking various businessmen to recommend employees for jury duty—a normal practice at the time. All the defendants were found guilty and seven were sentenced to execution as co-conspirators, although their connection to the bombing remains highly suspect.

It is cases like these that make us reconsider our faith in the impartiality of jurors, randomly selected from rights-bearing members of the locality and then whittled down to remove those who may be biased in a case, have more pressing things to attend to, or are simply unfit to serve. This process acts as a shield against charges of jury bias, but some cases are so polarizing that the judgment of a jury is seen as an expression of a particular political viewpoint or class. Sometimes the claim is of bias—such as O.J. Simpson’s acquittal by a majority-black jury. The political leanings of a locality can affect a set of verdicts, such as in antebellum America when Southern juries generally convicted blacks and Northern juries generally had abolitionists mixed in who voted to acquit. In more extreme cases, such as the Haymarket Trial, the jury is accused of representing a specific section of the population. These cases indicate the ability of collective fears to break through the pretense of impartiality and amplify social injustice. When a suburban jury acquitted Sgt. Stacey Koon and three others of beating Rodney King, after the event had been captured on camera, it told the black community of Los Angeles that they were being excluded from the justice system. In an era of social conflict regarding the political, economic and legal marginalization of minorities, the courtroom drama reverberated in the wider society.

In fact, juries regularly fail to serve as an effective check on the state’s power. The record of the state in getting guilty verdicts in cases against communists, anti-war protestors, and other groups, even in cases where evidence is limited and circumstantial, shows how jurors can give undue deference to arguments related to the necessity of preserving order. Likewise, policemen are rarely found guilty, even when they have clearly overstepped boundaries. In these sorts of cases, juries provide a buffer between the state and angry minorities in the population, giving the actions of the state more legitimacy in the eyes of the general population.

But because juries do have a disruptive potential, even if they are often conservative in their rulings, there have been attempts throughout history to marginalize the use of juries, often coupled with statements about how the use of juries will inevitably cause errors in complex cases. The 20th century has seen a shift away from the jury system in Europe, most recently in a proposed British bill that would put libel cases in front of a judge. In the U.S., one consistent source of tension has been the concern among businesses that local jurors will rule against them. The tension between local juries and evolving corporate entities was mitigated in the mid-19th century, when a Supreme Court ruling allowed corporations to send most suits brought against them to the federal circuit courts. This ruling alleviated concerns about jurors and removed a large group of cases from the ambit of the jury system.

Instead of seeing juries as a minor part of the legal process, we should consider juries an important part of the American system of democracy. Morality and politics factor into every jury decision, and being a jury member is an important component of citizenship. What we should avoid, then, is this notion that one’s role in the jury process is to be a cog in the engine of justice. And the jury system has indirect benefits as well, as studies have found that serving on a jury increases political participation.

It is perhaps in this context that we should view the controversial doctrine that jurors should decide a verdict based on their opinion of the law in addition to the guilt of the defendant, also known as “jury nullification.” An inevitable result of the independence of jurors is that they can come to any verdict they wish without being penalized, meaning that a juror could acquit a defendant if they consider the defendant guilty but the law unjust. For obvious reasons, the government has been hesitant to publicize this. Judges are not required to make them aware of this possibility, and the defense mentioning it is grounds for a mistrial. The result is a tenuous balance that is an effective practical solution to the issue—namely that a juror will generally only override the law if they have a strong moral case for doing to. Juries have the ability to form a check on the power of the state, but only in extreme situations.

The advocacy of jury nullification is therefore an argument for increasing the power of juries vis-à-vis the state, and recognizing that the decisions juries make are often motivated by political beliefs. It is closer to the original vision and application of juries in the early U.S. and reaffirms the romantic ideal of the jury as an essential check on state power. However, this notion can upset the carefully cultivated ideal of juror impartiality, which shields jurors from addressing the moral ramifications of their verdicts. The tenuous balance that is struck at present relies on a deliberate falsification of the role juries and courts play and have played in history. While judicial nullification is rightly controversial, it is the best way to reaffirm the courts as an organ of democratic involvement. One thing is clear: if I go into the box, I’ll keep all my options open.