Although juries have existed in one form or another since ancient times, the jury as we now know it originated in 12th-century England. At first an accusatory formality, the jury evolved into a check on governmental power. Nowadays, an accused’s right to have the evidence against him judged by members of his community is one of the most essential requisites of criminal justice. Juries also ensure a public perception that the system is just — a necessary precondition for the system to actually work.
But justice requires that juries actually make a decision. And new statistics show that they’re refusing to in ever increasing numbers.
When someone is accused of a crime, the law prescribes certain actions that can be taken by the justice system. It’s so formulaic that much of it could be done by a computer: if the defendant did X, Y and Z, then he goes to prison; if he only did X and Z, he gets probation; if he only did X, then he does not get punished. But before the law can be applied to the facts, the law needs an official version of the facts. We need it so we can move on to the next step, so defendants and victims and witnesses can get on with their lives. A computer can’t do that. It is the job of real people, the jury, to define that official version of the facts.
If a jury refuses to make a decision, justice is delayed. The accused must suffer continued anxiety and uncertainty until another trial closes this distressing chapter in his life. He must double down on the expense of defending himself, and on the stress it puts him and his family through. Victims and witnesses have to go through the trauma of testifying all over again. Another pool of jurors has to take time out of their lives.
But modern sensitivities have made the hung jury ever more commonplace. We’re not supposed to be judgmental. For decades, ethical relativism and cultural sensitivity have been a major part of our socialization. Gen-X kids like me, taught to be politically correct in college, are now entering middle age. The Millennials now entering the workforce have learned these sensibilities since birth, and for many it is viscerally wrong to pass judgment on another. This oversimplifies the matter, of course, but the fact remains that a huge portion of the population now feels significantly more uncomfortable in the role of juror.
These same generations had parents, teachers and professors who lauded the civil rights protests of the 1950s and the antiwar protests of the 1960s. Now they are more likely to use their jury service as a protest — they don’t care what the facts are, they have an agenda in conflict with their role as jurors. Maybe they simply don’t want to put another young black man in jail, and further decimate their community. Maybe they simply want to use their jury service as a vague protest against an oppressive system. We’ve seen plenty of those kinds of jurors, too.
The results have been dramatic in recent years, as the numbers of hung juries have skyrocketed. In the birthplace of the modern jury, the BBC reports that hung juries increased 30.7% in 2007, and a whopping 70.6% in 2008.
Still, this isn’t cause for alarm. Careful jury selection can often identify people who simply cannot pass judgment, as well as those who have a political agenda. Lawyers and judges can use voir dire to educate jurors about the importance of their role, so that they overcome their discomfort and do their job.
Alarmists want to prevent hung juries by allowing majority verdicts in criminal trials. If a holdout is holding up justice, reformers would negate that holdout’s influence, and let a vote of 10 out of 12 be sufficient (as it already is in England). But that is an end run around justice — the principled holdout who refuses to give in to pressure is an iconic figure in public perception. Norman Rockwell painted it, for crying out loud.
No, we’re going to have to play the hand we’re dealt. If the venire is more likely to harbor holdouts, we are just going to have to do a better job of getting across to them, or weeding them out. The jury is the democratic participation of the community in the administration of justice, a system better adapted than any other to the protection of the individual against oppression by the state. As Lord Devlin said, a tyrant cannot rise unless he “overthrow or diminish trial by jury.”