juries and jury duty

Two questions.

1. What do Objectivists think about juries? Should they be a part of a legal system?

2. Assuming that juries are and will (at least for a long while) remain a part of the US legal system, what do Objectivists think about jury duty, it being somewhat similar to the army draft.

Jordan

Post 1

Wednesday, June 9, 2004 - 7:45pm

I think that mandatory jury duty may be a requisite for a fair trial. While it is possible to pay a jury more money, and get more people to willingly accept jury duty, this may not be the best way. While I'm not an expert on jury selection, (I'm not even a lawyer), don't most lawyers want a cross-section of the community involved in the jury selection process? Mandatory jury duty seems to be a minor inconvenience. I'm 44 years old and have been called to jury duty only a few times, and have never served on a jury because in every case when I was considered, I told the judge that I worked on an hourly wage, and he dismissed me. From my perspective, it's a minor implementation detail, required for a fair and impartial trial.

Craig Haynie (Houston)

Post 2

Monday, June 14, 2004 - 7:07am

I was hoping this thread would peak more interest. Anyway...

Yes, Snowdog, I think it's required that juries be a cross-section of the community. But are juries good things? The US uses juries more than most (if not every) other civilized country, and we've cut back significantly in the last several decades. Is this a good or bad thing? Should we even bother with juries?

And if we should, then should jury duty be mandatory? Again, mandating people for jury duty seems like drafting people for the army. Just because it's a minor inconvenience (and it's often much, much more than this) doesn't make it right or acceptable.

Jordan

Post 3

Monday, June 14, 2004 - 1:48pm

Not to hijack this post, but...

Awhile back, I was struck by the interesting idea of 'Jury Nullification' which someone mentioned on this site. A quick google of "jury nullification" will yield some very interesting articles on the subject. Apparently, if a jury finds that the law under which a person has been found guilty is unconstitutional or otherwise unconscionable, they can choose to pass no sentence on the defendant.

I guess that the Supreme Court heard the arguments for and against this idea, and decided that while it was the right of the jury to nullify, it would be the government's official position that the right did not exist (hence it is not taught as a right in public schools), so that people would only use the right in very dire circumstances.

While this nullification right would be a valuable tool against government tyranny (which would give juries some meaning above and beyond simply a panel of peers), it would also have the effect of destroying the objectivity of law.

What do you think about this, Jordan, the rest?

Post 4

Tuesday, June 15, 2004 - 2:38am

Hi all,

I'm an aspiring lawyer here in the UK, where we have a similar jury system to the US. As an Objectivist I do have a problem with jury duty being basically compulsory unless you have a good excuse (I personally would now be exempt due to having a law degree, despite not yet being a fully qualified lawyer! Too much specialist knowledge apparently...), though the danger of a voluntary system is that we'd end up not having a big enough pool of volunteers. Having said that, there have actually been suggestions here to get rid of juries in complex fraud cases, simply because the technicalities may be too complicated for "laymen" to follow (which I think there might be a case for). The government has also curbed the right to a jury trial in certain less serious cases, which i find rather more worrying.

As for jury nullification, though its not often referred to by that term over here, I believe the idea does have it's origins in old English documents such as Magna Carta. I think it could indeed be a powerful tool against tyranny, were the general public made fully aware of their powers. I recall some discussion of this over on the SOLO Yahoo group a while ago.

Post 5

Tuesday, June 15, 2004 - 7:58am

About jury nullfication.

To be sure, jury nullification is not a right, but rather a power. See the 1986 New Jersey case State v. Ragland for this point. It's basically the power to act contrary to the law. The difference between a right and a power (as I understand them) is this: the loss of a right is a redressable grievance in a court of law; a power is not. A party who is denied the right to instruct the jury on the possibility of nullifcation cannot redress this grievance under the law. Thus, jury nullification is not a right, but rather a power.

Jury nullifcations can be traced back to 17th century England, in Bushell's Case 1670, where the jury acquitted William Penn for unlawful assembly, even though it was overwhelmingly clear that Penn had unlawfully assembled. In the US, we can trace jury nullifcation back to 1735 in the prosecution of Peter Zenger for seditious libel. But it's roots, as Matthew suggested, might very well be traceable to old English document such as the Magna Carta. In any case, the power has been around for awhile.

Back to the more general jury question.

In the US, I think jury nullification is an expression of the idea that ours is a government by the people, for the people. We're tried and judged by a jury of our peers. But this seems to fly in the face of "a government of laws, not of men" (or does it?) which is why I question whether juries should even be a part of our legal system. Again, rights to a jury have decreased considerably in the past several decades. Matthew wrote of how the UK has suggested getting rid of juries in complex fraud cases -- well, that suggestion has already been taken here in the US. I'm just wondering if we're moving in the right direction.

Jordan

Post 6

Wednesday, June 16, 2004 - 6:36am

What would you replace a jury with? A decision by a judge?

The jury system ensures a fair trial with an untainted jury pool. Any other system would be more subject to corruption -- and more subject to personal prejudice. I also believe that a decision is much more reliable when made with the advice of others, than when made alone. There are certainly some people that I wouldn't trust, with my life and liberty in their hands.

Craig

Post 7

Wednesday, June 16, 2004 - 8:14am

Snow Dog: I think that a pool of paid, professional jurors, not necessarily lawyers, but trained in the law, might be the best approach. This would have the advantages of avoiding a lot of emotionalism and the enormous, unjustified settlements that are prevalent � particularly settlements for medical malpractice that are driving doctors to the wall.

It also would avoid the coercion of citizens being impaneled. I would have a concern, however, about the impartiality and personal rivalry among the jurors if they had served many times together. Perhaps that could be avoided by having a larger pool of qualified jurors who would not do it full time.

Post 8

Wednesday, June 16, 2004 - 12:38pm

I tend to think that a pool of paid jurors might become a target of political persuasion. Who appoints these jurors? If appointed by a judge or governor, then you can bet that their political opinions would be evaluated in some way. Does he favor abortion? Does he believe that tobacco companies have a right to sell deadly products? etc...

Craig

Post 9

Wednesday, June 16, 2004 - 8:11am

Snowdog,

Not sure what you mean by "untainted" pool. Lawyers voir dire (i.e., interview) prospective jurors, kicking out not the juror who is an unreasonable thinker, but the juror who is less likely to take their side. There's lots of literature on this. For example, in a personal injury cases, the plaintiff wants a jury composed of middle to low income citizens, preferably minorities -- this type is presumed to sympathize more with the alleged victim. The defendant, on the other hand, wants no jury at all, but if he's stuck with one, he aims for a jury composed of high income citizens in business-oriented professions -- this type is presumed to bear more hostility or skepticism toward the alleged victim. Seems awfully tainted to me.

Now I can agree that an opinion is often improved when informed by other opinions, but this seems inadequate as a defense of juries. The judge gets other opinions, specifically, opinions from previous cases made by other judges. And if the judge errs -- well, that's what the appeals process is for. But even if the judge has not other opinions, his is a professional opinion, as opposed to the laymen jurists. Juries are factfinders, but jurors are often unaccustomed to this role. They haven't practiced fact-finding and might very well de-emphasize or over-emphasize some relevant fact. Judges spend their lives, in part, sharpening their fact-finding skills, weighing each fact, considering how similar these facts are to previous cases. In no other profession that I can think of do we substitute a laymen's judgment for a professionals.

Now I've read plenty of opinions from ass hole judges, opinions that should've been overturned but weren't because of the deferential standard of review for their cases.

So when it comes to factfinders, I'd really like to see technology take over where it can. There're some pretty good lie-detector tests out there, some handy DNA testing as well. To be sure, this technology is still subject to human error (and in Houston, we've had a hellova time with corruption in the DNA crime lab), but the humans involved would be professionals, and more importantly, they'd tend to be disinterested 3rd parties, thus avoiding the bias that both judge and jury might have.

Jordan

Post 10

Saturday, July 10, 2004 - 12:44pm

It seems to me there are three main issues of jury "duty" for Objectivists:

1. The idea that free individuals have any "duty" at all to the State is erroneous;
2. Compulsory service on a jury is "involuntary servitude" and unconstitutional under the 13th Amendment; and
3. the Jury nullification issue, already discussed.

There is no reason the State can't secure volunteers for jury service in the same manner they now do for military service�volunteers paid a living wage. However, given the danger of "professional jurors" developing a government-employee mentality, it may be best to put maximum service limits on the job (six months?).

I've served one several criminal cases in the past and found it an unsatisfying experience to be fed only filtered information, no opportunity to ask questions, brain-dead fellow jurors, incompetent public defenders, and hours of wasted time standing in court hallways.

This week, I'm personally in a pre- voir dire phase of jury selection where we were instructed to complete a 60 page questionnaire (2 hours). Curiously, there was no question on the nullification issue. However, I made it very clear in answering a variety of questions hinting at the probable use an "excuse" defense, that I considered crime to be the result of individuals making rational choices; that they were personally responsible for wrong choices; and that criminal behavior that harmed others merited swift and severe punishment by the society.

When asked about my thoughts on the value of psychiatry and psychology in explaining human behavior, I informed them that I considered psychiatry an arm or the legal profession, and their post facto explanations a dime a dozen.

Finally, since they asked for the last three books I read I listed: Tibor Machan's PUTTING HUMANS FIRST, Thomas Szasz's FAITH IN FREEDOM, and Ayn Rands's RETURN OF THE PRIMITIVE.

I won't know the result until next week when court resumes, but I would expect to be considered a loose cannon by either side, and will be excused pronto.

Post 11

Saturday, July 10, 2004 - 4:40pm

Further to my post 4 above, I gather that the regulations exempting lawyers in the UK from jury duty have in fact recently been altered. If I'm called up I'm tempted not to object at all, hope the case is a victimless crime of some sort and use my position to try and nullify the jury :-)

In all seriousness though Larry I hope you manage to get excused. Keep us posted ok?

MH

Post 12

Sunday, July 11, 2004 - 6:54am

Hi Matthew,

Is it really a law that people of the legal profession can't serve on juries in the UK? In the US, it's not a law, but it's a general rule. The lawyers trying the case don't want some smarty pants in the jury box second guessing them or explaining their moves to fellow jurors. They want jurors as laymen

Hi Larry,

The reason your pre-voir dire survey avoided the issue of jury nullification is because it had to. The courts aren't allowed to advertise that jurors have the power to nullify. They are basically required to remain silent on the issue.

There is no reason the State can't secure volunteers for jury service in the same manner they now do for military service�volunteers paid a living wage. However, given the danger of "professional jurors" developing a government-employee mentality, it may be best to put maximum service limits on the job (six months?).

I like your idea of volunteer juries, and I think I see the prob with professional jurors developing that gov't mentality. But I see problems with paying jurors only a living wage. You'll end up getting lots of unemployed, retired, or poor people in the box. The rich folks will be less likely to attend. This creates a skewed cross-section of society. The people you'd get in the box would be the ones who'd tend to sympathize more with the victim or the little guy, and they'll tend to feel greater animosity toward the rich guy or he big business.

One way around this is to pay volunteer jurors what they'd normally get at work (or a living wage if they're unemployed). But this can get expensive, and then we get into the bigger prob of government financing.

There's another prob with juries too: they're not familiar with the general subject matter of the case. for example, in medical malpractice cases, jurors often really want to condemn the surgeon whose patient died in operation (probably because surgury going wrong can be extremely scary for the layman). They often calculate damages extremely high, which in turn causes malpractice insurance to skyrocket. Here in Texas, we passed a law that limits possible damages in medical malpractice cases, but I think it's wrongheaded because some surgeons might deserve that higher calculation of damages. The problem is that jurors can't be trusted to set a just amount. That is, two surgeons who screw up equally but who are tried in different cases and by different juries will often receive wildly different verdicts.

Judges decisions are more consistent because they're familiar with the world of medical malpractice (although one could argue that judges set damages consistently too high or too low). But consider juries that consist of people familiar with the medical profession. They might set consistent damages as well, and might even set them neither too high nor too low. They would be a cross-section of the medical society, but not society in general. I think they'd have the knowledge that the layman jury lacks; not sure though. Thoughts?

Jordan

Post 13

Sunday, July 11, 2004 - 10:07am

Matthew,

I'll surely let you know how this drama plays out, but I'm not really trying to get myself excused. This just happens to be the first time since my adoption of a libertarian political philosophy that I've had the opportunity to express it in a court setting. I'm curious to see how it will be handled.

Four years ago�when I was last called to jury duty�on a minor drug possession case, I witnessed the prospective panel asked by the judge if anyone had a problem with following the law as expressed by the court. One brave soul raised his hand and told the judge he disagreed with the drug laws because they were "wasting everyone's time." The judge became livid with rage, ranted at the juror and threatened him with contempt of court before finally having him ejected him from the courtroom.

I don't need that kind of treatment, and I honestly don't see it warranted since I've only completed a confidential questionnaire in private, and I'm not making a public statement that would require public suppression. They can just dismiss me my mutual agreement of the contending parties.

However, your comment does bring to mind another potential dilemma for Objectivists on jury duty. Just as you suggest keeping quiet (if you can) on the nullification issue, would you avoid expressing the Objectivist position (which I assume to be true) that all human behavior is rational, and those who intentionally harm others are entitled to nothing less than the full brunt of any legally available punishment�without any consideration for extenuating factors like having been abused as a child, mistreated as an ethnic minority, etc. That alone may be worthy of further discussion.

Should we conceal our commitment to the concept of free will and personal responsibility, in the name of bringing undiluted punishment to the guilty?

Larry

Post 14

Monday, July 12, 2004 - 1:44am

Is it really a law that people of the legal profession can't serve on juries in the UK? In the US, it's not a law, but it's a general rule. The lawyers trying the case don't want some smarty pants in the jury box second guessing them or explaining their moves to fellow jurors. They want jurors as laymen

Jordan,

That was the law until recently. Its all being changed at the moment, whether similar concerns as you described above will come into play here remains to be seen.

MH

Post 15

Monday, July 12, 2004 - 2:19pm

Hi Jordan,

In California, the courts actively search out nullification supporters, so they can dismiss them. I�ve been witness to enough voir dire and jury selection to attest to that. But, I also believe that this varies by State.

You have some interesting points on juries and jury awards.

It seems there are two different issues when discussing improvement of the current system: (1) how to avoid involuntary servitude, and (2) how to improve the quality of jurors.

Your idea of paying lost wages is a good idea, and there should be plenty of taxpayer money left to do that if we simultaneously discontinued the welfare state. ;-)

It's hard to say whether certain classes of jurors are better than others (the OJ Simpson case perhaps being the exception). Personally, I�ve found that college students are given to snap decisions from which they will not budge, and which for the most part reflect an serious lack of �life experience.� But, what can we expect when everyone in California goes to college now, regardless of SAT scores and despite an inability to read beyond second grade level?

I�ve been called for jury service nine times in the last 20 years and have been on four juries that went to decision. After the case was presented, and we were locked up for deliberation, it was as if each of the jurors had been on some other trial. Many could barely keep basic facts of the case straight even though we were all advised to keep notes. Speculation is rampant on what information was not disclosed, such as the defendants past crimunal record, even though we were cautioned against it. Who is there to enforce the judge�s orders in that room? Theoretically, the jury foreman could send a note out, but (a) they are too busy feeling a sense of pride in having won the vote of confidence, and (2) they are usually dunder-heads who don�t realize that the foreman is the only juror who cannot remain anonymous in the public records (in the event of any futrure retaliation).

Malpractice is a whole different ballgame. My work experience is product research in property/casualty insurance, so I have a smattering of knowledge about the subject, especially after talking to those who administer it for hospitals. And, of course, watching CourtTV.

Even the most outrageous jury awards are eventually pared down to fall within the limits of the malpractice policies, so rarely is the physician injured financially (except, as you say, by higher rates on renewals). So jury awards don�t give the full picture of the disasters happening in modern surgical practice.

The bigger problem is this: There are, in fact, many incompetent surgeons (and more each day with affirmative action in place, according to my doctor who teaches at the State medical schools in the area). The profession refuses to screen them out, and if the insurance companies do nothing more than raise rates, these people continue to inflict damage on the public. No court action will solve that one.

Larry

Post 16

Saturday, July 17, 2004 - 2:07pm

Matthew,

You asked for an update after my voir dire, so here it is:

As I said before, I wasn't really trying to get excused. But by the time they got to me, they had their 12 jurors and were looking for alternates, so my game plan changed. I REALLY did not want to ever be an alternate.

I had the luxury of observing 30-40 other prospective jurors undergo the voir dire process as my turn approached. Based on questions asked, I was preparing to address the core issues. The main one that surfaced involved accepting "expert testimony" on DNA. Jurors with any kind of exposure to statistics (and mine is extensive) were specifically asked, �If you hear expert testimony on statistical validity of DNA evidence that does not coincide with what you know from your own statistical background, will you be able to put aside that knowledge, and accept the testimony as fact for purposes of this trial?� Surprisingly, everyone was agreeing to do that�even people who worked in the physical sciences. I could hardly wait to respond to that question.

Soon, my turn comes and I am approached by a female defense attorney who exudes UC Berkeley. She is the DNA part of the team. After an innocuous question about possible misreading of DNA results, she suddenly asks, "You don't believe in the jury system. Is that right?" Totally unprepared for that question, I respond, "Next day, I had the luxury of observing 30-40 other prospective jurors undergo the voir dire process as my turn approached. Based on questions asked, I was preparing to address the core issues. The main one that surfaced involved accepting "expert testimony" on DNA. Jurors with any kind of exposure to statistics (and mine is extensive) were specifically asked, �If you hear expert testimony on statistical validity of DNA evidence that does not coincide with what you know from your own statistical background, will you be able to put aside that knowledge, and accept the testimony as fact for purposes of this trial?� Surprisingly, everyone was agreeing to do that�even people who worked in the physical sciences. I could hardly wait to respond to that question."

She smiles and says, "I think you�ve been quite complete in your answers. And, by the way, I see you have a trip planned on August 27."

I had made that statement on the survey, but it was followed by a comment that I would reschedule if necessary. However, since only an hour earlier the judge released anyone who had the even lamest time-confict excuse, it was clear I was being offered a chance to walk. I took it to avoid being the possibility of being stuck as an alternate for the next six weeks, and the judge excused me.

Overall, I am unsatisfied. I wasn't permitted to make a statement. Instead, I was accused of not accepting the jury process, not allowed to rebut that accusation, and quickly excused for a one day trip that I never requested. I also remain puzzled as to what precipitated the accusation that I reject the jury system. Perhaps they read Lysander Spooner in law school and associate it with latter day libertarians. Who knows?

Since nullification was never an issue here, I have only this recommendation for Objectivists who may find themselves called for jury duty: If you are open and upfront about your beliefs about free will and personal responsibility, the defense will see to it that you never serve on any criminal trial. You must be willing to accept that the defendant is himself a victim. If you want to participate, acknowledge that possibility, and go from there.

Post 17

Monday, July 19, 2004 - 5:39am

I've helped select over 60 juries, about 10 as a defense attorney and the rest as a prosecutor. Twenty of those were murder cases.

SnowDog points out correctly that the lawyers don't want a cross-section of the community, but instead want jurors sympathetic to their case. The process is a de-selection process, rather than a selection process. Some jurors are excused for cause when the court determines that they have other obligations that should prevent them from serving. This is generally for legitimate reasons, but can be used to get rid of someone when the court really doesn't want someone there as was done with Larry Balint. In that case it was a convenient excuse. After that there is usually some process of peremptory challenges. Each side can excuse a juror without giving any reason. There is an exception in the USA disallowing the use of peremptory challenges for racial or sexual discriminatory reasons. The peremptory challenge process is under fire since it is a huge chess game. It may be necessary to use this system to remove jurors who won't reveal a bias.

The question of mandatory jury service is much more difficult. It used to think that it is necessary to have any sort of fair system. However, there is a jury reform movement to improve conditions for jurors. My experience is in the state of Arizona. That state is a leader in this movement. Now jurors are allowed to ask questions. The questions are screened by the court for admissibility. For instance if a juror asked whether the defendant in a criminal case has prior convictions, this question could be disallowed. All parties were originally skeptical of this procedure, but now most lawyers who do trial work agree that it works well. Often the jurors catch something that the lawyers didn't.

In addition Arizona allows jurors to set their own schedules of the court session and deliberations with review by the judge.

Arizona is also experimenting with paying jurors up to $250 a day if they make that much at work and the trial is to last three days or more. This is to lessen the hardship for jury service. I see this as a move toward having professional jurors, and perhaps voluntary jury service.

As Sam Erica pointed out there are dangers with professional jurors. I had extensive experience with grand juries. These are selected in Arizona for a four month term. In the last county where I prosecuted they often heard over 300 cases in a term. While grand juries are not usually the rubber stamp that they are said to be by the end of the term the grand jurors are usually pretty bored in the more routine felony cases and tend to rubber stamp anything the prosecution presents. Of course the low level felonys are in no way routine to the defendants. I could see a similar thing happening to professional jurors.

As Jordan and Larry pointed out compulsory service is ultimately initiation of force. If you don't show up they will bring you to the courthouse and fine or jail you. However, the jury reform movement promises some experimentation which might ultimately result in change.

Bill

Post 18

Tuesday, July 20, 2004 - 10:37am

Bill,

I agree with you that the defense saved itself a peremptory challenge by offering me another way out. I took it because I had no desire to sit through a six week trial as an alternate (non-voting) juror.

If you don't mind, I have a few of questions.

1. Most of the juror prospects that are removed, by peremptory or otherwise, are fairly obvious�people who have difficulty understanding questions put to them, people who express a resistance to serve, etc. But then there is a category of people who, to the casual observer, would appear to be make ideal jurors�bright, interested, fair-minded, etc. Yet, many of these people are removed by peremptory challenges. Is there some specific personality traits or occupation that results in their dismissal?

2. Do you happen to know the history of the peremptory challenge? When did it appear in the operation of our jury system, and how?

3. I'm also still curious about jury mandate of unqualified acceptance of expert testimony, and I wonder if you�or anyone else here�can shed any light on that. I'll briefly restate what transpired:

Jurors with any kind of exposure to statistics were specifically asked, �If you hear expert testimony on statistical validity of DNA evidence that does not coincide with what you know from your own statistical background, will you be able to put aside that knowledge, and accept the testimony as fact for purposes of this trial?� This was restated so many times in voir dire by the defense that there is no question in my mind what was said, or intended. The judge made no statement that contradicted it, leading me to believe it is some established "rule of evidence."

Is "expert testimony" a class of evidence that can stand unchallenged, no matter how erroneous it might be? That just doesn't make good sense.

Larry

Post 19

Wednesday, July 21, 2004 - 5:10am