Unlocking the Jury Box

The Founders of our nation understood that no idea was more central to our Bill of Rights--indeed, to government of the people, by the people, and for the people--than the citizen jury. It was cherished not only as a bulwark against tyranny but also as an essential means of educating Americans in the habits and duties of citizenship. By enacting the Fifth, Sixth, and Seventh Amendments to the Constitution, the Framers sought to install the right to trial by jury as a cornerstone of a free society. Today that cornerstone is crumbling. In recent years, a parade of notorious criminal trials has called into question the value of citizen juries. The prosecutions of Oliver North, O.J. Simpson, William Kennedy Smith, the Menendez brothers, and the assailants of Rodney King and Reginald Denny have made armchair jurors of millions of Americans. Now the failings of the system seem obvious to anyone with a television: In search of jurors, the selection process seems stacked against the educated, the perceptive, and the well informed in favor of those more easily manipulated by lawyers and judges. Attorneys exercising their rights to strike candidates from the pool cynically and slyly seek to exclude jurors on the basis of race, gender, and other supposed indicators of bias. Courts subject citizens to repeated summonses, intrusive personal questioning, and long and inefficient trials. Unsurprisingly, many citizens avoid jury duty. In court, jurors serve a passive role dictated by rules that presume jurors are incapable of impartial deliberation and that provide little help in understanding points of law or evaluating testimony. The public perceives that the scales of justice tip in favor of rich defendants with high-priced counsel. More than a million Americans serve as jurors on state courts each year. Jury service offers these Americans an unequaled opportunity to participate democratically in the administration of justice. But on its present course, this vital egalitarian institution may shrivel up, avoided by citizens, manipulated by lawyers and litigants, and ridiculed by the general public. To be sure, the system has inherent limitations; correct verdicts cannot be guaranteed. But given the jury's present form, society is bearing the costs of a jury system's vices without enjoying a jury system's virtues. Our task is to demonstrate why the citizen jury is worth defending, and to propose a number of specific reforms designed to restore the jury to its rightful status in a democracy under law. A Cornerstone of Democracy The Framers of the Constitution felt that juries--because they were composed of ordinary citizens and because they owed no financial allegiance to the government--were indispensable to thwarting the excesses of powerful and overzealous government officials. The jury trial was the only right explicitly included in each of the state constitutions penned between 1776 and 1789. And the criminal jury was one of few rights explicitly mentioned in the original federal constitution proposed by the Philadelphia Convention. Anti-federalists complained that the proposed constitution did not go far enough in protecting juries, and federalists eventually responded by enacting three constitutional amendments guaranteeing grand, petit, and civil juries. The need for juries was especially acute in criminal cases: A grand jury could block any prosecution it deemed unfounded or malicious, and a petit jury could likewise interpose itself on behalf of a defendant charged unfairly. The famous Zenger case in the 1730s dramatized the libertarian advantages of juries. When New York's royal government sought to stifle its newspaper critics through criminal prosecution, New York grand juries refused to indict, and a petit jury famously refused to convict. But the Founders' vision of the jury went far beyond merely protecting defendants. The jury's democratic role was intertwined with other ideas enshrined in the Bill of Rights, including free speech and citizen militias. …