In Defense of the American Jury System
By Scott London
The verdict in the O.J. Simpson trial has given new life to the old quip that if you ever get into trouble with the law, your fate is likely to be determined by twelve people who are not even smart enough to get out of jury duty.
For whatever else the Simpson case may suggest about the shortcomings our legal system, it has renewed the debate in America about the process of trial by jury.
We need to strengthen the tradition of ordinary people brokering the disputes of their neighbors. The jury system, far from a mystical ideal, is based on the common sense and reasoned judgment of ordinary citizens.
It is a system fraught with contradictions: While most Americans embrace the idea of trial by jury, we are dismayed by its practical results. While we celebrate the democratic power of the jurors, we no longer trust the verdicts they reach. And while we claim that our jury system is the best in the world, most of us go to great lengths to avoid jury service.
The flight from jury duty on the part of millions of Americans is a serious threat to the future of the system. While some eighty million Americans have been called for jury service at some point in their adult lives, fewer than half have ever sat on a jury. Not surprisingly, work-related conflicts is the biggest category of excuses.
Steven Ainsley in a recent commentary rightly observes that "making the conscious decision to avoid jury duty has immediate ramifications, all of them negative." He insists that "the message we send to our children is that civic responsibility is a trivial part of our lives, easily dismissed, and that there is little value to the notion of the importance of community."
These worthy sentiments notwithstanding, what we need in this case are broad systemic reforms to encourage jury service, not calls for more civic engagement and responsibility.
We need to address the corrupting practice of "peremptory challenges," for instance, in which lawyers picking a jury are allowed to dismiss up to fifteen potential jurors without explanation. Through this process, some of the most qualified jurors are often weeded out at the start.
We also need to reassess the growing dependence among lawyers on jury consultants. These are scientific experts skilled at selecting jurors predisposed toward one verdict or another. Their criteria are routinely based on gender, class, and racial stereotypes. So long as specialists manipulate the jury process, there is precious little an individual can contribute to a fair trial.
Addressing the weaknesses of the system must also involve improving the conditions of the jurors. At a minimum, they must be adequately compensated for time spent away from work.
I also believe that so-called jury incompetence — that tiresome refrain echoing from talk-radio programs across the country in the wake of the Simpson verdict — can be addressed through small but significant improvements in the courtroom, such as clearer instructions from judges, allowing jurors to take notes, and permitting them to question witnesses. More practical training in the nature of their task and easier access to information are also possible steps toward improving jury competence.
A century and a half ago, Alexis de Tocqueville noted that "the practical intelligence and political good sense of the Americans are mainly attributable to the long use they have made of the jury."
Whether or not to preserve the American jury system is not an open question, in my view — of course it should be preserved. Nor should juries be made less harmful by limiting their powers, as some critics maintain.
If anything, we need to strengthen the tradition of ordinary people brokering the disputes of their neighbors. The jury system, far from a mystical ideal, is based on the common sense and reasoned judgment of ordinary citizens. An effective system must foster, not discourage, that civic judgment.
Santa Barbara News-Press, October 24, 1995