Abolish the Jury?

On paper, the jury is the paragon of democracy. But is it really?

The concept of the jury trial is often credited to King Henry II, who convened groups of 12 “free and lawful” men to decide disputes over land. The expansion of the British Empire spread the jury system throughout the globe with the reach of the setting sun. But, most Americans don’t know that their jury system is now an anomaly in the developed world.

The jury system was abolished in Germany in 1924, Singapore and South Africa in 1969, and India in 1973. Today, even in those countries where the jury system still exists, it is used only sparingly or as part of a “mixed court” that includes both laypersons and judges. The vast majority of all jury trials that occur today are held within the United States.

The Biased Jury

The Sixth Amendment grants the right to an “impartial jury.” Herein lies the first problem. Nothing about today’s juries is impartial. The process of voir dire (jury selection) has transformed into a mini-trial in and of itself, with opposing counsel fighting vigorously not for impartiality but also for advantage. In essence, attorneys are fighting to secure jurors who are biased to think in ways that support their party's narrative while excluding those who are biased in the opposite direction.

Confirmation bias is the psychological tendency to seek out, attend to, and better recall information that confirms one’s pre-existing attitudes and beliefs, while at the same time discounting or ignoring information that is contrary to one’s views (see e.g., Nickerson, 1998). This type of bias can cause jurors to rely more heavily on certain pieces of evidence or arguments that support their worldview — a particularly insidious problem in trials with ambiguous or conflicting evidence. In today's hyperpoliticized environment, confirmation bias forms a potent problem for impartiality. For example, in one recent study from Anwar, Bayer & Hjalmarsson (2019), conservative mock jurors were more likely to convict defendants with Arabic names, whereas more feminist jurors convicted with greater frequency when the victim was a woman.

Attorneys have their own biases when determining who to try to exclude from the jury during voir dire. For example, prosecutors will often try to exclude Black jurors under the theory that they are less likely to agree with police and the justice system. “Peremptory challenges” allow a party to exclude any prospective juror without the need for any reason or explanation — just, poof, that juror is excluded. For decades, peremptory challenges have been used discriminatorily to exclude Black jurors. In the 1965 case of Swain v. Alabama, an all-white jury in Talladega County, Alabama, convicted a 19-year-old Black man of raping a 17-year-old white girl. The man was subsequently sentenced to death. During voir dire, the prosecutor had used six peremptory challenges to remove from the jury pool every Black individual eligible to serve. The Court’s review of records later revealed that not a single Black person had served on a criminal trial jury in Talladega County for more than a decade.

Although the 1986 case of Batson v. Kentucky outlawed removing prospective jurors solely due to their race, it did little to change the status quo. Prospective jurors can still be removed “for cause” with relative ease. An attorney need only make a reasonable argument that they wish to exclude the potential juror for some factor other than race, even if discrimination is actually their true motive. Indeed, data from the American Bar Association and Equal Justice Institute show that Black individuals are still excluded from juries at disproportionally high rates.

The extreme political polarization and racial strife in South Africa were actually at the crux of the nation's decision to abolish their jury system. Legislators feared that rampant racial prejudice would make it impossible to secure an impartial and fair jury.

Media Influence and Pre-formed Opinions

Today’s 24/7 media coverage and our inextricable tethering to electronic devices further complicates impartiality. Consider the trial of Kyle Rittenhouse. Although the judge instructed jurors not to discuss the case or watch any media related to the case, it is a fanciful dream to believe that each juror complied with this directive entirely. The only real protection against media influence is jury sequestration, meaning that jurors are isolated in hotels throughout the trial and deliberation. In extreme cases, televisions and laptops are removed from hotel rooms, and phone calls can only be made in the presence of a court official. Sequestration is a draconian measure that most judges do not like to impose. And, in high-profile cases, the media coverage that occurs prior to a trial has likely already influenced each juror’s opinions anyway. For example, a seminal meta-analysis of 23 articles involving a total of 5,755 participants and including 44 effect sizes found that exposure to negative pretrial publicity increased the likelihood of guilty verdicts (Steblay et al., 1999).

Ill-Equipped and Often Capricious Decision-Making

Most jurors are not only inherently biased (as we all are to some degree!) but also are ill-equipped to complete their duty. Jurors with zero legal training are frequently tasked with deciding cases involving brain-melting issues like patent law or medical malpractice. Prospective jurors with experience in the subject matter at hand are usually excluded during voir dire because they “know too much.” As a result, juries often consist of people who are not fully able to understand the issues before them. Consider again the Kyle Rittenhouse trial. Although the entire case revolved around the singular issue of self-defense, the instructions provided to the jury were 36 pages long and difficult for me (a practicing attorney) to understand. Today’s legal codes have simply evolved magnitudes in complexity compared to the times of our Founding Fathers.

Perhaps no one fears a jury more than a lawyer. We tend to advise our clients to avoid juries like the plague. This is because they are so utterly unpredictable. For attorneys, presenting a case before a jury is like taking a plunge from an unknown height. Countless jury verdicts have shocked the public over the years, from Casey Anthony’s acquittal to $28 billion in punitive damages awarded to a single plaintiff. Such verdicts might provide interesting fodder for water cooler talk, but they do nothing for the pursuit of uniform justice.

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Moving From Jury Trials to Bench Trials

I contend that the United States should consider moving away from the standard jury process and instead shift toward “bench trials” in which a panel of judges decides a case. It is possible that the average trial would benefit greatly from adjudication by a team of trained legal professionals who swear an oath to remain impartial. Of course, because the right to a jury is enshrined in the Sixth Amendment of the Constitution, scaling back this fundamental right would require Herculean acts by Congress. That said, a formal inquiry into the risks and benefits of bench trials should be undertaken by established legal and psychological bodies in order to inform the public of this "alternative" to our centuries-old jury process.

There is no doubt that the jury system has valiant aims. But I question if it still comports with today’s society. The reality is that juries are seldom impartial and seldom equipped to understand the issues before them. The entire process also imposes a burden upon citizens who must take time away from their jobs, worry about their potential safety, and potentially be traumatized with the evidence they observe or stigmatized by the decisions they make. Not to mention the extraordinary amount of time that is consumed by the jury process. American court systems are notoriously backlogged and congested. As a result, prosecutors are often inclined to offer plea bargains to avoid a protracted trial, while defendants tend to accept them due to their fear of an irrational and unpredictable jury. The result is that 97 percent of all federal criminal cases end with a plea bargain. In the civil system, court dockets are so overwhelmed that parties regularly wait years before actually going to trial. Removing the jury process — from selection to deliberation — could seriously shorten the length of trials and allow more defendants to actually have their case heard by professionals equipped to understand their complex issues.