We call in a jury of the people to decide all controverted matters of fact, because to that investigation they are entirely competent, leaving thus as little as possible, merely the law of the case, to the decision of the judges.
—Thomas Jefferson. Letter to M. Coray, Monticello, October 31, 1823.
The jury trial ranks amongst the most ingenious, useful and ancient of all humanity’s inventions. Among its advantages are:
- Jury trials amplify the benefits of deliberation. When jurors are required to deliberate together, they are forced to expound on their reasoning to their fellow jurors, thus exposing errors in each other’s arguments. Most litigation lawyers have experienced a judge who, from his questions, his attitude and his pontificating from the bench, indicates he will decide the case in a particular way, but then releases a written judgment that goes the other way. Typically, in these cases the judge has carefully drawn together all the threads of the case to form a coherent argument, only to persuade himself his original opinion was wrong. Among juries, this healthy tendency is amplified by the number of jurors who are questioning and testing each other’s arguments.
- Because the jury is in existence for too brief a period of time to be corrupted, the right to trial by jury ensures that no powerful group (whether the government, legislature, judiciary, mafia, big business, or any other) is able to pervert the law into an instrument of tyranny.
- Jury trials allow judges to be mere legal technicians, releasing them from the role of determiners of fact. When judges determine the facts, it undermines their benign status and exposes them to accusations of partiality. Moreover, when a judge is tasked with deciding guilt or innocence, he perceives himself as sitting in judgment on his fellow man. Over time this has a corrupting influence on his perception of reality. This is because even the very best of people grow malicious and capricious when they are given control over the lives and property of their fellow man. Like exposure to radiation, the effects are inevitable and destructive; the longer the exposure, the more damage that is done. By contrast, jurors are only exposed to this radiation on a single isolated occasion.
Some juries refuse to convict because they disagree with the law. Such verdicts are generally immoral. This is because, just as bureaucrats and judges have no right to ignore the law of the land, neither does a jury. It amounts to a usurpation of the rights of their fellow citizens to self-government. Nevertheless jury nullification is a legitimate check against laws that are gross violations of natural rights; in such cases it is immoral of the jury not to acquit. As Lysander Spooner explained: “If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.” (An essay on the trial by jury, 1852.)
For example, in 2000 four Americans were jailed for eight years for importing lobster tails in plastic bags rather than in cardboard boxes. (“Rough Justice,” The Economist, July 22, 2010.) The law in question was not in the nature of a true crime. At the very most the lobstermen ought to have paid fines, and if caught and fined several times, they ought to have been liable to a judicial injunction not to break the law again, and only after breaching that injunction should they have been jailed (for contempt of court). In this case the jury ought to have acquitted.
Treachery by juries composed of the dregs of society can be avoided by ensuring juries are composed of hard-working, property-owning, law-abiding citizens. In order to ensure juries are representative of society, all citizens should be required to obtain a certain number of civic duty points each decade of their life.
Everyone benefits from living in a civilized society. Therefore, just as all can morally be taxed for the legitimate expenses of government, so too can they be required by society to perform necessary civic duties. The best system would be a points system, similar to mandatory continuing professional education. Under such an arrangement every citizen (twenty-one to seventy) would be required to attain a certain number of civic duty points every decade. Civic duty points could be obtained by sitting on a jury, serving in a combat role in the armed forces, serving on the beat in the police, fire, or rescue services, as a prison guard, or in the emergency department of a hospital or a psychiatric ward. Those disqualified from serving on juries, for example ex-felons, could be given other means of fulfilling their civic duty, such as border patrol. A points system is far more practical than simply randomly calling people up for jury duty. With a points system citizens can volunteer for jury duty at a time that best suits them. Thus a businessman whose business is going through a period of expansion or contraction, or a mother with young children, will not be made to sit on a jury, but rather can put themselves forward when it is more convenient for them. When people sit on the jury of a long murder trial, they ought to be able to carry the surplus points they earn forward to future decades. Likewise, those in the armed forces and those serving in the police, fire, or rescue services should be able to carry their points forward through multiple decades. Thus a combat soldier should earn a decade’s worth of points for each week in harm’s way, and so receive a lifetime release from civic duty after his first tour of active duty.
