April 18, 2005,
Trial by Human Beings
The jury system and its discontents
EDITOR'S NOTE: This piece appears in the April 25, 2005, issue of National Review.
The jury system presupposes an optimistic view of mankind: It presupposes that most citizens of normal intelligence can put aside their prejudices and preoccupations, at least for the duration of a trial, and render a true verdict on an accused (or a plaintiff) according to the evidence laid before them. In other words, jurors will put their legal duty before every other consideration.
The jury system also presupposes a high general level of trust in the legal system itself, and in the legitimacy of society as it is at present constituted. Where punishments are cruel or excessive, as they were under Englandís Bloody Code (according to which there were over 200 capital offenses, some of them trivial), juries refuse to convict, and undue severity becomes the handmaiden of impunity.
Where the legitimacy of society is low, as in Czarist Russia, juries may refuse to convict because of sympathy for the undoubtedly guilty person who is accused. When the revolutionary Vera Zasulich shot and wounded the police chief of St. Petersburg, General Trepov, in 1876, supposedly in revenge for police abuses, the jury refused to convict her though the evidence against her could not have been stronger; this hastened the demise of jury trial in Russia, then only a few years old as an institution.
In America, the excessive efforts of lawyers to produce juries that they believe will be sympathetic to their cases have long undermined the philosophical justification for jury trials in the first place. Lawyers assume that people are incapable of distancing themselves from their own private opinions, and that there can be no willing suspension, not of disbelief, but of preconceptions...
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