Mark Twain didn’t like the jury system much. Calling it “the most ingenious and infallible agency for defeating justice that human wisdom could contrive,” he complained that prosecutors and defense attorneys begin a trial by excluding any potential jurors who have heard anything about the case—which automatically excludes the kinds of people who are most responsible and well-informed. Thus, Twain wrote, the modern jury system “puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.”
He wasn’t the first to object to the jury system, and he certainly wasn’t the last. In the wake of the Kyle Rittenhouse trial, for example, political commentator Max Burns published an article on the NBC website Think complaining that trial by jury is a component of a judicial system that was “built to disadvantage nonwhite Americans.” It isn’t clear why he thinks juries specifically deserve condemnation, but it has something to do with “how the presumption of innocence . . . often remains out of reach for Black and brown Americans”—a proposition that, if true, would seem to justify expanding the jury trial right, rather than restricting it. In any case, football star Colin Kaepernick went further. Rittenhouse’s acquittal on the charge of murder, he told reporters, “only further validates the need to abolish our current system.”
Such reactions seem predicated on the assumption that if Rittenhouse had been Black, the jury would have convicted him—which is a dubious assumption; only days after the Rittenhouse verdict, a jury acquitted Black defendant Andrew Coffee of attempted murder charges arising from a 2017 incident in which he shot at sheriff’s deputies who burst into his bedroom in the middle of the night. Two months before the Coffee and Rittenhouse verdicts, a Minnesota jury found a Black defendant not guilty of attempted murder when he, too, fired on police officers he mistook for looters trying to kill him.
In any event, it’s strange to argue that if Black defendants are unjustly convicted, white defendants should also be unjustly convicted. The better answer would be to take more steps to protect the rights of defendants, and particularly to strengthen the jury trial system—a device that, for all its flaws, remains one of the most important safeguards for the rights of the accused.
Benefits of the Jury System
Probably the most common accusation against juries is that they are essentially amateurs: Being ordinary people not versed in the law, their skill at judging isn’t up to par. Such complaints have sometimes led to calls for the establishment of professional juries. But the fact that juries are not members of the legal profession actually has value. Long-time members of the judicial system can become jaded or prejudiced, and they may come to view themselves as members of the prosecution team instead of independent arbiters. And the fact that jurors are uninformed about a case, or even the law in general, also serves a valuable function: Forcing prosecutors to prove their cases even to less-informed members of the community helps weed out cases where the evidence is flimsy or speculative.
In fact, one of the benefits of a healthy jury system is that it deters prosecutors from even bringing marginal cases in the first place—ones where the evidence is too weak to sustain a charge, or where the mitigating facts are such that the general conscience of the community would oppose a conviction. That’s an important point to emphasize, because the jury system plays a role not merely in deciding guilt, but in serving as a forum for society to observe how its laws operate, on whom and why—all questions that are important for democracies to be aware of. Crucial questions about justice are debated throughout American society as a consequence of highly publicized jury cases such as the trials of O.J. Simpson, Elizabeth Holmes and the officers who beat Rodney King. Unpleasant as such debates may be, they are far better than the silence and anonymity that surround the routine, conveyor-belt convictions that go on in the back rooms of authoritarian countries.
Sadly, jury trials have become a remarkably rare phenomenon even in the United States, where they account for less than 1% of civil cases and less than 5% of federal criminal trials. This rarity is echoed in state courts, where according to recent statistics, only about 1.3% of felony cases are decided by a jury.
Instead, criminal cases are typically disposed of through plea bargaining, whereby the accused agrees to accept a conviction without trial in exchange for a lighter sentence than he or she might get in court. In theory, this is a benefit to defendants—but the reality is that defendants are frequently pressured into plea bargains without understanding their full consequences. Not only does this send people to jail who don’t belong there, but it also deprives society of the ability to know how our judicial system is operating in the real world.
For one thing, agreeing to a plea bargain means waiving one’s right to appeal, and because prosecutors often arm-twist the accused into accepting a deal—sometimes by threatening to bring charges against the defendant’s family—many people wind up accepting punishment for crimes they did not commit. Naturally, that consequence is more likely to fall on people who cannot afford legal representation—poor individuals and members of minority groups—which ultimately undermines the legitimacy of our judicial system. But we don’t know how often this happens, precisely because it takes place out of public view. The absence of a jury means that the average American knows virtually nothing about what the Cato Institute’s Clark Neily calls “plea‐driven mass adjudication.”
Mitigating Jury Concerns
Obviously, juries aren’t perfect, and prosecutors and defense attorneys can game the system—although it’s doubtful how effective these manipulations really are. It’s impossible to measure what effect jury consultants—who advise lawyers on selecting jurors and on how to pitch their arguments—really have. One 1994 news story on jury consultants quoted the head of a California-based consulting firm: “[J]ury selection is 5% of the balance we bring to the equation.” In other words, it matters far less than the strength of the evidence and the arguments, which is how things should be.
The greater concern, of course, is the degree to which juries are motivated by prejudice or sympathy instead of evidence and argument. And it’s obvious that juries have sometimes thrown the law aside, either through “jury nullification” or, in the civil context, by imposing irrationally high civil verdicts against companies with deep pockets that actually did nothing wrong. But, as with all things, these risks must be compared with the risks of likely alternatives.
Judges, too, are fallible human beings subject to biases; indeed, they are far more likely to be former prosecutors than former defense attorneys, and they may have “tough on crime” biases that blind them to legitimate doubts about a defendant’s guilt. And while we cannot know for sure how many people are wrongly convicted through plea bargaining, we do know the number is likely quite high, thanks to the fact that, as Jed Rakoff puts it, “it is the prosecutor, not the judge, who effectively exercises the sentencing power” in such cases.
What’s more, some states have already taken steps toward preventing manipulation of the jury system. The Arizona Supreme Court, for example, has banned peremptory juror challenges beginning in 2022, meaning that prospective jurors may be dismissed only on the basis of some expressed reason. That decision arose from the perception that peremptory challenges (in which a juror may be dismissed for any reason, or for none) result in racially biased juries. As for civil cases, legislatures can prevent outrageous jury verdicts by adopting tort reform measures and limits on our currently out-of-control class action system. Courts, too, can prevent the abuse of civil litigation by imposing commonsense limits on vague legal concepts such as “public nuisance”—a legal theory that has resulted in unjustifiably high damages awards even against companies that broke no laws. The Oklahoma Supreme Court, for example, recently stopped a multimillion-dollar lawsuit in which plaintiffs’ lawyers argued that drug companies should be liable for the fact that people sometimes get addicted to painkillers.
Jury nullification, too, plays a legitimate role in our system, despite the fact that it has often resulted in injustices. In a properly operating jury system, prosecutors must always ask themselves whether they could get a local jury to convict—a question that inherently incorporates at least some basic consideration of the community’s attitudes toward the justice system. Anecdotal evidence suggests that juries do, indeed, enforce at least some basic limit of common sense against aggressive prosecutions—and it is clear that eliminating this safeguard would make prosecutors more willing to seek severe punishments for minor infractions.
Anyone tempted to condemn the jury system should be prepared to recommend a better alternative. No perfect system is possible, however. So a judiciary that includes at least some participation by ordinary citizens who do not spend all of their time in courtrooms—and in whose name the legal system is supposed to operate in the first place—creates an important safeguard for justice. The jury system is meant to be a miniature version of the community—a representative sample of society—and its responsibilities go beyond simply adjudicating the guilt of defendants. It is also responsible for supervising the judicial system itself. Like all human institutions, it is flawed and subject to abuse—but, as Churchill said of democracy, it is the worst except for all the other systems that have been tried.