The American Bar Association is proposing a variety of reforms to the jury process, including keeping juror names and addresses confidential, allowing potential jurors to refuse to answer embarrassing questions during voir dire, and permitting jurors to "pre-deliberate" in civil trials before the case has concluded.
The press release revived a silly little meme bouncing around inside my head for a long time now: How about scrapping the whole "jury duty" concept and moving toward full-time, trained, professional jurors?
"Juror" would simply be another job, like "lawyer," "judge" or "court reporter." There would be a basic educational requirement (e.g., a college degree) and a legal credential earned by formal study and examination. Something less than a J.D. but more than a night class at John Jay.
First, would it be constitutional? The Sixth Amendment merely requires "an impartial jury of the State and district wherein the crime shall have been committed" -- doesn't sound like professional jurors would violate that.
Second, would it be affordable? We pay jurors a piddling little amount and professional jurors would cost far more. But what about the entire "jury duty" infrastructure of maintaining potential juror lists, mailing summonses, enforcing summonses, etc.? And how many hung juries would be avoided by keeping off the dumb, the partisan and the overly emotional? And even if it would nominally be more expensive to have well-paid professional jurors, as I blogged previously, since when do we skimp on one of the libertarian "big three" proper functions of government? If we're not going to spend public money on courts, then how can we justify spending it on anything else?
Third, would it be advantageous? I think the answer would almost certainly be yes. Even putting aside the idea of jurors having legal training, just making sure they are literate, educated individuals would certainly lead to better verdicts. Here's how a Canadian lawyer described the current dilemma:
So who does actually sit on juries? Well, you have those not smart enough to figure out how to get out of doing it. And, if they aren't smart enough to figure that out, do you really want them sitting in judgement of a criminal case? Because that is how events like [a] mistrial occur. Then there are the under-employed. They have nothing better to do. Or the aged and retired. While smart enough, most seniors I know would have a great deal of difficulty understanding the technology involved in many trials today such as forensic digital analysis of a computer's hard drive in the search for evidence, which seems to have become an issue in many, if not most, cases these days. Then there's DNA evidence. As demonstrated in the OJ Simpson trial, with a mountain of DNA evidence conclusively demonstrating guilt, the jury simply didn't understand it and were left with Johnnie Cochrane's pithy but ridiculous; "If the glove don't fit..." nonsense.
I have a hard time disagreeing with any of that. A similar article recently discussed the "CSI Effect," in which lay juries are coming to expect "Grissom-like" certitude in cases where science is lacking but other evidence (e.g. credible incriminating testimony) is overwhelming.
What would be the potential drawbacks of professional jurors? The single biggest -- and hardest to quantify -- effect would be a further degree of separation between most people and "The System." Jury duty, like voting, is often trumpeted as one of those rare, wonderful times when "the little guy" has a say and can make a difference. Take that away by establishing professional jurors and our societal sense of "civics" may diminish.
Might justice itself also be compromised by professional jurors? If being a juror is -- yawn -- an occupation, does it therefore lose its solemnity? Would full-time jurors come to grow cynical in their duties, as many seasoned attorneys do? In New York State at least, there is a flip side to mandatory jury duty: an equally mandatory waiting period: once you have served you must wait four years before serving again. There might be some wisdom in such a policy -- having the jury pool fresh and unsullied by a repetitive career of trial after trial.
Overall, a very difficult thought experiment. It would be fascinating to see a jurisdiction, even if another country, implement the idea, even on a trial basis (no pun intended). Perhaps professional jurors would only be used in certain specialized cases such as antitrust or involving expert testimony of some kind.
There's a thick fuzzy line between the current jury system being "imperfect" and being "broken." It's definitely one or the other. Determining which one would help in deciding whether a system of professional jurors is the correct solution.
POST SCRIPT: This piece was in no one way inspired by nor reflective of the Scott Peterson sentencing verdict handed down yesterday. I have been remarkably successful in remaining both ignorant of and apathetic toward that case.
