Thursday, July 28, 2005

Professional Juries? I don't think so...

One reform to the jury system that raises its head all too often is the concept of professional jurors. I don't think anyone is surprised that Jurygeek (and for that matter, the vast majority of other jury proponents) are four square against such proposals. And, while the reasons may seem obvious, they deserve repeating here.

First, while the term "jury" may not be defined in either Article III, Sec. 2 or the Sixth Amendment (or in the various State constitutional jury guarantees), the Constitution is not, nor should it be, interpreted in a vacuum. The Founding Generation didn't recognize a panel of government employees as a jury, whether those government employees were legally trained or not. The historical reason behind trial by jury was to have the ultimate legal decision maker not be a government employee, but a panel of lay citizens. Obviously, professional jurors would not be recognized as jurors by the Founders.

The English common-law method for demanding a jury trial was to call for a trial "by God and Country," meaning the people of the Country, instead of their government. A professional jury would necessarily mean a trial "Solely by Bureaucrats." The Declaration of Independence listed as one of the grievances the deprivation of the benefit of Trial by Jury. One can hardly imagine the Colonists going to war against the most powerful nation on earth for depriving them of the benefit of trial by bureaucrats.

Moreover, real jurors are not beholden to either side. Could a "professional juror" ever not be beholden to his employer, the government? Could anyone really believe that a "professional juror" who voted against the government too often would not quickly be out of a job? I think not.

Anyone who knows the reality of our courts knows that few judges are truly impartial, and most judges have no qualms about using their influence and discretion to have a case come out in accordance with their preferences. Can we really believe that this would not extend to the hiring and firing of "professional jurors?" I think not.

Moreover, local lawyers and judges would quickly get to know each professional juror in the community well. Think lawyers get home-towned now? The out-of-town lawyer would never have a chance against tight-knit locals. Jury selection would be a fiasco: the locals could pick who they wanted by name without a single question, and the out-of-towner wouldn't believe any answers he received from slick professionals. Fair? Methinks not.

The myth is that "professional jurors" would be "better trained and educated", and that "experience" will somehow make them better at their job. Neither claim holds water. For obvious reasons, "professional jurors" will not have the diversity of viewpoint, education and experience that lay jurors demonstrate, nor will "professional jurors" improve with experience.

First, lay jurors have a variety of experience and education. I've seen professors, lawyers, doctors, engineers, schoolteachers, business owners, accountants, and other professionals serve on juries. The fact that the average jury consists of strangers with different backgrounds, education, and experience enriches jury deliberations and makes it possible for the jury to examine facts with a fresh eye. These people are meeting for the first time, comparing their perspectives and opinions, and trying to reach a consensus opinion on something that is new and strange to them. In the real world, this brings out the best, the most conscientious in people.

"Professional jurors" would necessarily get to know each other, and to have somewhat similar backgrounds - they all would have been hired by the same office, and they've self-selected by applying for the position in the first place. This homogeneity would impoverish deliberations, and would create a system in which complex evidence would almost never be understood - few "professional jurors" would be engineers, doctors, or CPAs. They would be bureaucrats - with all the training that low level government employees usually have.

Moreover, professional jurors would not improve, but would get worse, with experience. We all know that routine jobs rarely get the attention of once in a lifetime opportunities. Professional jurors would take a "oh, another case like the last one..." approach, and fail to give each case the unique attention it deserves. Furthermore, they would become jaded: sending that first man to prison is difficult; sending the 33rd or 330th is easy. Some jobs should never become easy.

One of the beauties of the jury is that it is not beholden to the court or to the government. Juries can nullify if they believe that the law is unjust, or that it is being unfairly applied. This provides an essential feedback mechanism; laws that are frequently nullified are laws that should change. Professional jurors would become immune to the unfairness and injustice, and we would lose this invaluable safety-valve. That alone is reason to abandon this pipe-dream of the professional jury.

And, finally, let's not forget the admonishment of de Toqueville, that jury service gives to the citizen a habit of thinking with a judicious perspective, and a training in how the laws are administered, which he can get almost nowhere else. This is perhaps why those who have served on juries have a better impression of the institution than those who have not. To lose that would be to further divorce the government from the citizenry.

While those who like to think loosely, without having to confront the unintended consequences, legal, constitutional, and political, of their proposals, the professional jury will always retain a certain lure. Fortunately for the rest of us, the professional jury remains, and likely will remain, nothing but idle chatter. The professional jury would be nothing more than a group of bad, second-rate judges: something we've got far too many of as it is.


At 7:02 AM, Blogger KipEsquire said...

I have two quibbles:

1. The original meaning of "jury of one's peers" was literal -- the jury was one's neighbors, who were deemed best suited to evaluate the credibility of the defendant's testimony. Today those are exactly the people we exclude from a jury. How do you reconcile that with your historical analysis?

2. "Could a 'professional juror' ever not be beholden to his employer, the government?"

--Then how do you explain public defenders? (Which, incidentally, were also unheard of to the Framers -- to them the right to counsel meant to right to hire counsel, not have one provided -- the latter didn't arise until Powell v. Alabama, 287 U.S. 45 (1932)). Are PD's not also beholden to the government and therefore hopelessly unfair?

Beyond that, a very thoughtful analysis that I respect highly.


At 9:02 AM, Blogger Clay S. Conrad said...

We do not disqualify a person's neighbors; i.e., those who live in the same community. As a matter of fact, the Sixth Amendment modified the Art. III Sec. 2 jury requirement by adding that the jurors come from the district in which the crime was committed. So while we no longer expect jurors to be self-informing, we do expect them to come from the community - and therefore to reflect community judgment and values.

Secondly, public defenders are in a unique position, a position required by the Constitution - but even as such are often hobbled by courts which do not allow them to be too aggressive.

There are some excellent public defenders out there - but I don't think that they are in a position to stretch the envelope on their client's behalf the way a retained lawyer can.

At 11:24 AM, Blogger KipEsquire said...

We disqualify people who know the defendant personally. That was what I meant. Sorry for any confusion.

At 2:34 PM, Blogger rattlerd said...

Are there any other innovative ideas out there that could address the problems professional juries are put forward to solve? As a CPA and auditor, I was especially distressed at the outcome of the Scrushy/HealthSouth case upon reading some of the jurors' comments that they really didn't understand the prosecution's case because it was too complicated and simply boring. There was evidence in the OJ Simpson trial that at least one juror confused DNA evidence with blood type, and given the increasing complexity of technology I don't see most patent cases can be competently heard if you're not an engineer.

Is this just a problem of perception, and if not, are there no good alternatives?


At 1:13 AM, Anonymous Anonymous said...

The "district" where the crime was committed is a huge stretch. In my case I get dragged from my small city to go to Houston where the vast majority of the cases came from in the first place. I don't live there, I don't vote there. When they want funding for some damn stadium or other project in the form of more tax, I don't get a voice in it, yet by God I have to go there to help clean up their mess when it comes to so-called "justice". Same "community"? I dare say not.

At 9:51 PM, Blogger Magnus Research Consultants Inc Inc said...

It's good to have fresh jurors for every case. It helps to see the information from a different perspective.


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