In medieval England they used to make accused people carry an iron bar three paces. Depending on how quickly God was said to have intervened to heal it, the accused was set free or hanged. It was called trial by ordeal.
Virtually any system would be better. For example, you could round up 12 people wandering around the street to make a decision. But you probably would not if you were working from from scratch.
The jury system defies what we know from experience. What do we do if we do something difficult, like building a bridge, learning to fly an aeroplane, building a brick wall for a two-storey house, doing surgery and so on? The best results are usually achieved with a gradual build up of theory and practice with the students asking questions as they go … in short, education. Thus surgeons are trained on dead bodies first. Pilots start with simulators and then go up with an instructing co-pilot and so on.
But this almost universal principle does not apply to juries. Someone can be a skilled bricklayer or experienced pilot one day and a rookie juror in a murder trial the next. One can be ignorant, stupid or prejudiced and still qualify. No practice is allowed. No training in the law is required. Worse, many people who might make good jurors are specifically excluded or given grounds to escape jury duty: doctors, lawyers, teachers and the wise (over 65).
Once on the jury, jurors are frequently not allowed to make notes, take tape recordings or have access to transcripts of evidence. (Most juridictions at least allow note-taking these days.) In complex cases jurors are required to listen to many weeks’ of and then make a decision within a couple of days. Small wonder they often get it wrong.
Juries do not have to give reasons for their decisions and the law forbids people to ask them. It is virtually impossible to research how frequently jury members decide on an irrational basis. In most other forms of human enterprise, when something goes wrong, questions are asked of the deicision-makers. We have inquiries into countless things, but jurors are never asked why they came to their verdicts when cases go wrong. The system is so shaky that we shroud it in secrecy.
Yet the jury is seen as the foundation of British justice. In America it is seen as the protector of the citizen against the state. In America juries are required in all criminal cases where the sentence can be more than six months’ jail and in all significant civil cases.
Outside former British colonies (and that includes the US), they are rarely used, yet courts in Europe appear to function quite well.
Would abolishing juries deliver better results? Would that reduce convictions of the innocent and acquittals of the guilty?
It might be that the imperfections of the jury are no greater than the imperfections of having a judge alone. Rather it might be better if they, and the system they work in, were modified.
Novices in anything need guidance. It seems absurd for the judge to lean down after a long and complicated trial to the novices who have never been in a court before and say: “”Members of the the jury it is for you, and you alone, to reach a verdict.”
The judge should go into the jury room. The judge should join the discussion and answer questions. If this happened a wider range of evidence could be put during the trial because the judge would be there to warn about what weight, if any, should be given to hearsay, antecedents, confessions or refusals to answer questions. And with that protection the jury could be smaller. Jury members should also be allowed to ask questions during the trial, say, at the end of each witness’s evidence.
The jury is supposed to be the embodiment of common sense. If so, ordinary experience tells as that asking questions is the way to find out what happened. In our system, only the lawyers for each side are generally allowed to ask questions. These lawyers, however, are, of their nature biased. They are not searching for truth, but putting a case. Jury members and the judge should ask questions.
Legally trained people would argue that such questioning could be prejudicial. But if juries are thinking it, it cannot be any more prejudicial to clear the air with a direct question? Juries can only bring a common-sense view from ordinary life experience if they act more in an common-sense way.