When the epic Oscar Pistorius murder trial finally comes to an end, a judge and two court officials will decide his fate — not a jury. That’s because South Africa banned juries in 1969.
South Africa ditched juries amid fears of racial prejudice among jurors and a reluctance on the part of many people to serve. We should do the same thing in the United States.
Jurors with zero legal training in the U.S. often have to decide cases involving mind-bending issues like patent law. Many intelligent people who could best understand those issues, like our executive editor Gus Lubin, try to duck jury duty because they don’t want to miss work.
As a result, juries may consist of people who are least equipped to understand the issues before them. Even if a jury does have intelligent people serving on it, those people are most likely not legal experts.
The law professor Peter Van Koppen explained why this is problematic in a 2009 essay arguing that jurors often have to decide “technical issues beyond their aptitude.” In that essay published in the e-journal “Anatomy of a Jury Trial,” Van Koppen pointed out that you wouldn’t want a panel of lay people acting as doctors. So, why would you want regular people deciding the fate of defendants? The work done by a jury isn’t that different from the work of a scientist like a doctor, he wrote.
“A scientist has to make inferences about states of affairs that cannot be observed directly, inferring from evidence that can be observed. And that is precisely what a jury has to do: make a decision about the guilt of the defendant based on the evidence presented at trial,” Van Koppen wrote. “That is a scientific enterprise that surpasses the intellectual aptitude of most laypersons who are called to jury duty.”
How America Started Using Juries With Lay People In The First Place
The jury trial likely began with King Henry II, who ruled England from 1154 to 1159. The king often assembled panels of 12 “free and lawful men” to settle land disputes, according to a history of the jury put out by the American Bar Association.
Eventually, the ABA said, “Early English juries came to be seen as a protector of the accused against the very harsh criminal laws of the day.”
When colonists came to America, however, Britain set up special trials that didn’t have juries. The deprivation of a jury trial irked the colonists. In the Declaration of Independence, those colonists accused Britain of tyranny “for depriving us, in many cases of the benefits of Trial by Jury.”
The founders obviously thought this right was important and decided to enshrine it in the Sixth Amendment of the Constitution, which reads:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour, and to have the Assistance of Counsel for his defence.
“The Jury Problem”
Long before a jury acquitted O.J. Simpson, the judge Julius Howard Miner complained that members of the legal profession were concerned that juries were acquitting “notorious criminals where the proof clearly indicated their guilt.”
In that 1946 paper, Miner wrote that defence lawyers tend to pick jurors who aren’t the brightest. From his paper, “The Jury Problem,” which was published in the “Journal of Criminal Law and Criminology:”
The woeful lack of intellectual endowment on the part of a juror is no doubt a most serious difficulty of common occurrence. Such lack of endowment is, to the defence lawyer in a criminal case, the very highest qualification any juror can possess. If a prospective juror discloses intelligence and competency he is promptly excused by the defence.
To fix this problem, Miner suggested administering intelligence tests and providing better instructions for jurors. I would suggest getting rid of jurors completely and replacing them with panels of judges — in part because of the unreasonable burden jury duty poses on jurors.
A Financial Burden
For some people, jury duty poses a financial burden, as most states don’t require employers to pay workers while they sit on a jury. (Yes, states pay jurors for their service, but in New York at least, that fee is just $US40 a day.)
When the U.S. was just coming out of the recession in late 2009, The New York Times published an article called “Call To Jury Duty Strikes Fear Of Financial Ruin.” That article quoted some workers whose employers wouldn’t pay for their time on jury service, as well as others who were unemployed and needed to spend time looking for jobs.
A couple years after that article came out, I was called to jury duty when I didn’t have a lot of extra money. My employer at the time didn’t pay for more than three days of jury duty, and I was worried about lost income. The loss wouldn’t have meant financial ruin, but it would have hurt. I resented that I would have to take a pay cut in order to fulfil my civic duty.
This particular civic duty takes other tolls, too. Jurors forced to leave their jobs for several days could face big setbacks at work. Those who decide the fates of members of the Mafia may worry about their personal safety, and jurors who serve on high-profile murder trials may be traumatized and stigmatised for whatever decision they make.
Citizens should not have to make these kinds of sacrifices, and the fate of defendants should not rest with people who may resent their service on the court. Moreover, we shouldn’t trust jurors with no legal training to decide complicated business disputes. We should leave that job to a panel of experts.
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