Oct 4, 2007

Deep-Sixing the Sixth?

I wish there were no trials by jury, at least not by jury of citizens with no qualifications for critical thinking. Out of 12 randomly chosen people, at least 8 have either no ability or no will to consider evidence without prejudice. And it is difficult to get juries to convict in cases of police brutality or vigilante vandalism. But the Sixth Amendment guarantees the right to jury trial (and the Seventh does it for civil cases), and it would be almost impossible, as well as unwise, to change that. So what is to be done?

We could have professional or semi-professional juries, as some other countries do. Contrary to the popular misconception, there is no constitutional (or otherwise recognized) right to trial by jury of one's peers. On the contrary, the concept of "peer" is rooted in aristocracy and thus repugnant to our constitutional principles.

A reform to introduce trained juries would be difficult, and would increase the cost of government, but it would greatly improve the integrity of our judicial system. It could also enable a compromise between those who want elected judges and those who prefer appointed ones. We could have appointed judges and elected jurors. And states could experiment with various flavors of such reforms.

Another feasible reform could be doing away with "guilt" as the issue in a trial. Rather than decide if the accused is "guilty", the jury would decide whether the accused "did it". Objectively, this may be just a difference in words, but framing matters, and many people would probably perceive their role differently, as objective fact finders rather than judges of value. That could quell the annullment-by-jury tendencies, which usually have the effect of letting abusive cops and vigilantes off the hook.


kehrsam said...

Interesting ideas. I have two comments about the switch from "guilty" to "did it" however.

1) With a few exceptions such as Pennsylvania, all crimes are defined by statute. That is, there are a number of predetermined elements which must each be proved to convict. For instance, for Burglary it might be "Defendant did break and enter an occupied dwelling, after dark, with the intent to commit a felony therein." If any part of the chain is broken, then the defined crime has not occurred. If the Defendant is invited into the house, Burglary cannot have taken place (some other crime might have, of course).

2) The second problem with "did it" is a bit more subtle. Almost every crime is not just about what the Defendant did, but also why. With the exception of a few Strict Liability crimes, every crime is defined as having an intent component, mens rea in Court parlance. Take the Burglary definition again, which includes "with the intent to commit a felony therein."

Now, in practice, prosecutors try to bootstrap this element by presenting it as a conclusion (ie, the Defendant did it, so he must have intended to do it). If you remove the conclusion, it is not so simple a question.

I could go for professional juries also, although if Grand Juries are any indication, they would tend to drift to the State's side over time. Lawyers in general don't seem to like professional jurors at all. At least I get struck every time I get called for duty. Cheers!

bullfighter said...

Good points about elements and intentions. I am aware of that, although I didn't elaborate, as my post is utopian anyway. I think I would lean toward a separate fact-finding ("did it") for each element of the crime, including mens rea. Any step away from the value-laden framing of "guilt" would be an improvement to jury decision-making process.