This article challenges the issue on whether contemporary forms of juries could provide a fertile ground for successful exercises of democracy in criminal justice System. Under this context, I will analyse that, in practice, is difficult to prove juries’ absolute correspondence to their democratic features. In order to achieve that, I will compare the supporting view of jury’s democratic character, by referring to some of its arguments, such as the check of government’s powers, free participation of citizens in juries, the injection of laymen common sense into the criminal courts and the thesis that juries function under deliberation of decisions, with its counter arguments, such as the danger to use their power in an abusive way, achieving unlawful purposes, the threats of jurors’ prejudices, the violation of separation of powers, lack of elections and legal knowledge and that their decisions are influenced, rather than deliberative, in an attempt to highlight the practical implications of their democratic function. In the end a conclusion will be reached, supporting that juries, despite their importance, do face significant problems, when it comes to serve utterly their democratic duties and purposes.
Check of governments’ power
To begin with, according to some theorists, contemporary juries represent democracy before of the criminal court, as they evaluate, control and restrict governmental power1. Under this context, juries are considered as “palladium of liberty”2, much more as “very palladium of free government”3 and as guardians of “all the rights which are dear to human nature”4, in which ordinary people control themselves and those who govern them5. As a direct result, being into this “palladium of liberty”, jurors can disagree with any legislation which violates their rights and liberties6, which is characterized as “oppressive law”7 and resist, limit and erase any rigorous emotion of fear of “tyranny”8. Under these means, fundamental liberties of accused people are protected, as juries stand between state’s power and those who face criminal justice9. As a result, it is supported, that rights of people in general are secured, as juries protect citizens from potential abuses of the state in a later stage 10. In this way, as Alexis de Tocqueville mentioned, “the jury is both the most effective way of establishing the people’s rule and the most efficient way of teaching them how to rule”11. Subsequently, juries offer chances of “democratic participation12, as they can effortlessly reject any application of a particular legislation, limiting the scope through which governments can impose punishments13. Hence, to resist on what Blackstone calls “absolute governments”14, they influence whatever laws include, such as its construction 15 and participate effectively in the determination of legislation’s context16.
However, in my opinion, this enormous power of the juries does not represent a perfect democratic system, as problems arise in relation with the control of governmental power. As stated above, juries are involved in the interpretation of a particular criminal legislation, declining or accepting its application, under the circumstances of criminal cases, brought before of the court, based on restricting the state’s tyranny as a justification. As such, they can acquit the defendant, even if evidences are opposite to their point of view17. At this point, I would like to mention that such an involvement is dangerous, as there is possibility to use this enormous power for unlawful purposes. One of the most common examples of such a wrongful use and abuse of democratic powers was the Emmett Till case18, back in 1955. In this case, white people murdered a black child and despite the sufficient evidences for a conviction, the jury, constituted by white people, acquitted the murderers19. In this context, I am trying to underline that controlling government’s power and protecting an individual’s right, through refusing or accepting legislations, does not necessarily means that is a part of democracy. In fact, as Robert Blauner stated, “a juror without any significant biases relevant to a case… growing out of a confrontation between a black militant and a white policeman would have to be a person of apathy, ignorance, even stupidity, or at least someone who is not living in today’s social world”20. Thus, questions arise, whether juries can guard liberties and rights, when they are human beings with their own opinions and biases. Even if we accept the allegation that a judge could be “biased” or even “eccentric”21, then it could be easier to think that ordinary people, without experience and legal maturity, are more vulnerable to these kind of behaviours. Furthermore, another possible problem that may arises, when it comes to the check of governments’ power, is whether juries are truly capable of securing rights of the people, in the sense that before of the criminal court, cases are brought by people that police detained. Under these means, an impression exists, according to which juries and as such, lay people, are “notoriously sympathetic to law enforcement”22. Consequently, it can be seen that, when this happens, it cannot be considered that they represent democracy, through their power of government’s control, as they could decline the protection of individuals rights, based on their “sympathies” as mentioned above. Accordingly, in a contemporary democratic form of governance, separation of powers, founded by Montesquie, supports that the legislative must exercise its duties impartially from judicial and executive, without influences or pressures23. This fundamental democratic principle seems to clash with jurors’ right to decline or accepting legislations, constituting, possibly, an abuse of democracy. More specifically, it is widely acknowledged that in democracy the only responsible body for producing legislations is the legislative, elected by the majority of people24. Therefore, it could be stated that these rights of interpretation and construction of the laws by juries, leads to a “a confusion of the roles of jury and legislature”25. As a result, there is contrast on supporting that juries represent democracy, when they clash with its fundamental principle of powers’ separation.
Representation of community and Common sense of justice
Additionally, supporters of juries’ democratic features, believe that democracy is served, as jurors represent the community26 and bring the laymen’ common sense of justice before of the criminal court27. This is exactly the reason on why jurors are often called as “representatives of the community”28, with the duty to take decisions “for or behalf” their fellow citizens29. In detail, according to these point of view, it is supported that the participation of ordinary citizens, through draws, secures a vital part of “democratic heritage”30, as they engage into a process, which offers a fertile ground for legislations to move from theory to reality, because it is possible to express, before of the court, communities’ own principles and way of thinking31, reflecting various citizens’ values and moral codes on their decisions32. In other words, ordinary citizens have the right to state their point of view, by connecting formal criminal justice with the place in which they live their lives33. As such, they formulate what is called as “conscience of the community”, by underlying what should be punishable and what should not, according to the societies’ beliefs34. Thus, there is view supporting that their judgements are more accurate, as they know in a better way what happens into their communities35, verifying what Aristotle stated thousands of years ago, that “Multiple rulers can be better than a single ruler because they have more insights into the population”36. In a similar vein, Lord Devlin, in the context of communities representation and common sense of justice, concluded that citizens, through juries, are able to decide what kind of justice fit to them, based on their views and not on legal professionals’ opinions37.
At this point, it is my opinion, that, albeit these arguments are respectable with a solid base, some reasonable objections arise again when it comes to democratic principles. One of these is that juries, practically, do not represent the community, as supported by some people, for two particular reasons. The first one deals with the eligibility of all citizens to participate as jurors. Under this context, supporters of the above thesis, insist that participation is open for every citizen, as a pivotal democratic notion38, but reality seems to be different. More specifically, strictly considering this issue, participating in juries is not available for all citizens, but for the most of them, as many are excluded from selection process for various reasons39. For instance, the English Juries Act of 1974, in Schedule 1, part II, paragraph 7 disqualifies from juries list every citizen who, inter alia, was convicted through criminal proceedings40. In my opinion, this not democratic, because a citizen who did something wrong, punished, served his sentence, payed for his crimes and returned to the society, lost eligibility for participating, because, under this law, is not considered as a citizen, but as a worse kind of human, who does not deserve to have its own word in criminal courts. Besides, there is a huge contrast; ex-offenders are eligible to vote in general elections, in the sense that they can choose their governors and participate in a democratic procedure41, whereas juries’ system, which is considered democratic, do not let them to participate. Other than that, some professionals, who decide eligibility, can disqualify a person based on “a mere hunch or whim42“, which violates the citizens’ right to participate on the jury, reflecting that these discriminations cause “harm not only to the accused but to society as a hole”43. The second reason is the absence of elections of juries’ members. As stated above, juries are selected through a certain list, which includes all eligible citizens, by random selection. It could be stated that this system consists an abuse of democracy. In details, in every democratic country, ordinary citizens vote for their desired government, through election processes44, which will act on behalf of them and will be accountable for its actions. Consequently, democracy means that those who govern and represent a specific place, they act in such a way, because they have the consent and permission of those who voted them45. As such, elections and voting constitute the bridge, through which citizens and governors are connected, as the former consent to their governance46. The fact of elections’ absence for juries’ participants means that some citizens may not consent for particular members of the jury to act on their name, and represent them47. Inevitably, jurors democracy is characterized sometimes as “pseudo democracy”, because unelected citizens act on the behalf of people who did not vote and choose them and “spurn laws passed by a democratically elected legislature”48.
Nevertheless, there are some objections on the injection of citizens’ justice sense in the formal criminal proceedings. In my view an enormous problem is that juries, in order to reach a verdict, rely primarily on this common sense. Taking this a step further, it is plausible to support that juries, constituted by laymen, are not aware of basic principles of criminal law, they lack legal background, knowledge and expertise49. Hence, in their attempt to search the criminal culpability of the accused, they may use subjective approaches, according to their life experiences, way of thinking and culture50, taking a decision that it is not compatible with the evidence presented51. Furthermore, if we suppose that democracy means respect of an individual’s rights52 and that jury guards them, we have to question on whether jury people can serve the right to the fair trial of the accused53, while they do not have an enriched knowledge of the criminal law. For instance, in very complicated cases, such as homicide offences in England, which often characterized highly complicated, due to their structure 54, juries may not be able to make a rationale decision, according to the law and the facts of the case, as it is possible to struggle to understand all these criminal provisions55. The justification which supports that jury is directed by the judge, as to legal matters, could not be considered as accurate, because even legal professionals, who studied years, find it hard to understand the complicity of the law. As a matter of fact, common sense may provide democratic dimensions on jury’s function, but it can also pose an enormous threat to the fundamental right to fair trial.
Despite the above arguments in favour of jury’s democratic function, supporters characterize the procedure of making decisions as deliberative and, as such, highly democratic. More specifically, it is stated that this particular process secures democracy, as the jurors have the chance, into the jury room, to discuss the case before them, finding differences and agreements, in order reach a verdict, through a democratic and civilised dialogue 56. It could be said that this deliberation is based on what Aristotle characterized as “wisdom of crowd”57, according to which many people on a particular subject can achieve a better result and decision, instead of the one. Even where mistakes are made, each juror helps another to correct it 58. Their deliberation is protected with the provided secrecy, through which they avoid, as King stated, “threats and unwanted attention” 59.
In my view, this argument has its own restrictions and contrasts as the other two. The problem with the so called “deliberation”, is that those who face the consequences of jury’s decision, do not have access to the rationale and reasons of their result. In simple words, this means that jury is not obliged to deliver any reasoning for its verdict, nor to be accountable to anyone60, even in citizens, for which act as representatives. Based on their secrecy, it seems that deliberation’s requirements, such as public reasoning and transparency, are not met61. Nevertheless, there are some questions on whether these kinds of decisions represent deliberation, in the sense that juries are highly based on judges’ directions, because they do not know the laws. As a result, they depend62 on judiciary’s explanations and instructions to be able to express their opinion on a later stage. Furthermore, the “wisdom of the crowd”, as developed by Aristotle, could be interpreted as a “wisdom” derived by independent opinions. At this point, someone could argue that they are not, as jurors in the jury room engage in various discussions and they are influenced by the opinions of the other jurors63. In practice, as Abramson stated, their discussions are not simple as they involve ” pressure tactics, logrolling, coalition building, or appeals to emotion”64. Consequently, it could be stated that the deliberative substance of democracy is not served in an absolute way by the jurors.
In conclusion, it could be stated that juries’ democratic dimensions and duties are not utterly satisfied. Despite the fact that, indeed, play an important role on the control of government’s power, bring closer ordinary citizens to formal justice, by giving them the chance to participate effectively in criminal proceedings and they are protected by influences, objections are reminding that democracy, sometimes, seems to be used in a wrongful way. The liberties of juries provide enormous power through which they can interpret legislation according to their view, even if the result seems unfair, they are called to represent citizens and their community, without elections or fellow citizens’ consent, they make decisions without knowing in depth legal principles and, even if they are uninfluenced by various interests, they influence each other, relying on judges direction, making their opinions dependent and not impartial. As a result, in front of these potential harms and dangers and the variety of juror’s prejudices, their power maybe needs to be restricted at some extent, in order to erase these hazards and be able to state confidently that juries indeed serve democracy, without creating suspicions of using their powers in an abusive way. Consequently, juries must be maintained, as their role is considerable, but their freedoms must be restricted, protecting, in that way, efficiently the rights of those who represent and the rights of the accused, by following solely criminal justice’s paths.
- Jason Mazzone, ‘The Justice and the Jury’ (2006) 72 Brooklyn Law Review p.39 (https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1363&context=blr) accessed on 10/12/2018
- Lysander Spooner, AN ESSAY ON THE TRIAL BY JURY (HOBART & ROBINS 2010), ch.1 p.5 (http://www.gutenberg.org/files/32984/32984-h/32984-h.htm#CHAPTER_I ) accessed on 10/12/2018
- Alexander Hamilton, James Madison, John Jay and Clinton Rossiter, The Federalist Papers (Clinton Rossiter ed, No.83, First Published 1788, Penguin 1961), p.498.
- Patrick Henry, “THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECCOMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1787” (1827) 3 JOURNAL OF THE FEDERAL CONVENTION, p.314 (http://lf-oll.s3.amazonaws.com/titles/1907/1314.03_Bk.pdf) accessed 10/12/2018
- Jeffrey Abramson ‘Four Models of Jury Democracy’ (2015) 90 Chicago-Kent Law Review, p. 867 (https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=4086&context=cklawreview) accessed 10/12/2018
- See note 2
- Charles W. Wolfram ‘The Constitutional History of the Seventh Amendment’ (1973) 57 Minnesota Law Review, p.704-705 (https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2293&context=facpub) accessed 10/12/2018
- Isaiah Berlin, ‘Two Concepts of Liberty’ (1969) in Four Essays on Liberty (Oxford University Press 1969), p.22-26 (http://cactus.dixie.edu/green/B_Readings/I_Berlin%20Two%20Concpets%20of%20Liberty.pdf) accessed 10/12/2018
- Williams v. Florida 399, U.S 78 (1970)
- Apprendi v. New Jersey 530, U.S. 466 (2000)
- Alexis De Tocqueville , DEMOCRACY IN AMERICA vol 1 (Jacob-Peter Mayer ed, George Lawrence trs, First Published 1835, Harper & Row 1969), ch.8 (http://www.houseofrussell.com/legalhistory/alh/docs/deTocq.html) accessed 10/12/2018
- Powers v. Ohio, 499 U.S. 400 (1991)
- Jenny Carroll, “The Jury as Democracy” (2014) 66 Alabama Law Review, p.830 (https://heinonline-org.ezproxy.is.ed.ac.uk/HOL/Page?handle=hein.journals/bamalr66&id=1&collection=journals&index) accessed 10/12/2018
- Wiliam Blackstone, Commentaries on the Laws of England 3 Bl Comm, ch. 23, p.380 (http://avalon.law.yale.edu/18th_century/blackstone_bk3ch23.asp) accessed 10/12/2018
- Paul Butler, “Racially Based Jury Nullification: Black Power in the Criminal Justice System” (1995) 105 Yale Law Journal, p.705 (https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=7659&context=ylj) accessed 10/12/2018
- Blakely v. Washington 542, U.S. 296 (2004)
- Alan Scheflin and John Van Dyke, “Jury Nullification: The Contours of a Controversy” (1980) 43 Law and Contemporary Problems, p.83 (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3602&context=lcp) accessed 10/12/2018
- Alan Blinder, “U.S. Reopens Emmett Till Investigation, Almost 63 Years After His Murder” New York Times (New York, 12 July 2018) (https://www.nytimes.com/2018/07/12/us/emmett-till-death-investigation.html) accessed 10/12/2018
- Stephen J. Whitfield, A Death in a Delta: The story of Emmet Till (1st edn, Johns Hopkins University Press 1991), p.42
- Ralph Smith and Larry Watts, “Minimizing Racism in Jury Trials: The Voir Dire Conducted by Charles R. Garry in People of California v. Huey P. Newton” (1971) 1 National Black Law Journal, p.284 (https://escholarship.org/content/qt5q69t1qp/qt5q69t1qp.pdf) accessed 10/12/2018
- Duncan v. Luisana 391, US 145 (1968)
- Jason Solomon, “The Political Puzzle of the Civil Jury” (2012) 61 Emory Law Journal, p.1344 (http://law.emory.edu/elj/content/volume-61/issue-6/articles/political-puzzle-civil-jury.html#section-aa78c8d68807c14d26ab8dabe912c1b3) accessed 10/12/2018
- Baron De Montesquieu, The Spirit of Laws (First Published 1748), p.1-2 (http://media.bloomsbury.com/rep/files/primary-source-104-montesquieu.pdf) accessed 10/12/2018
- See note 5, p. 872
- United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) United States v. Dougherty, 473
- Michael J. Sandel, Liberalism and Its Critics (Michael J. Sandel ed., New York University Press 1984), p.1,5
- Ballew v. Georgia 435, U.S. 223 (1978)
- See note 22, p. 1375
- Hanna Fenichel Pitkin, The Concept of Representation (1st edn, University of California Press1967), p.114-115
- Taylor v. Louisiana 419, U.S 522 (1975)
- See note 13, p.830-832
- Eric L. Muller, “Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment” (1996) 106 Yale Law Journal , p.144 (https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?httpsredir=1&article=7709&context=ylj ) accessed 10/12/2018
- See note 13, p. 833
- Charles B. Davison, “The Value of a Jury Trial” (2005) 30 LawNow, p.70-71 (https://heinonline-org.ezproxy.is.ed.ac.uk/HOL/Page?collection=journals&handle=hein.journals/lanow30&id=71&men_tab=srchresults) accessed 10/12/2018
- Jeffrey Abramson, We the Jury: The Jury System and the Ideal of Democracy (1st edn, Harvard University Press 2000) ch. 1, p. 18
- Aristotle, Politics (Book 3, Chapter 11) (https://www.coursehero.com/lit/Politics/book-3-chapters-11-18-summary/) accessed 10/12/2018
- Sir Patrick Devlin, Trial By Jury (STEVEN & SONS 1956), p.159-160 (https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Trial_by_Jury.pdf) accessed 11/12/2018
- Bailey v. Henslee 287 F.2d 936 (8th Cir. 1961)
- See note 5, p.869
- Juries Act 1974 (https://www.legislation.gov.uk/ukpga/1974/23/schedule/1) accessed 11/12/2018
- Electoral Commission , “Who is eligible to vote at a UK general election?” (https://www.electoralcommission.org.uk/faq/voting-and-registration/who-is-eligible-to-vote-at-a-uk-general-election) accessed 11/12/2018
- Purkett v. Elem, 514, US 765 (1995)
- Rose v. Mitchell, 443 U.S. 545 (1979)
- Robert Alan Dahl, Dilemmas of Pluralist Democracy (Yale University Press 1982), p. 10-11
- See note 29 , p 177-178
- James A. Gardner, “Consent, Legitimacy and Elections: Implementing Popular Sovereignty Under the Lockean Constitution” (1990) 52 University of Pittsburgh Law Review, p. 222 (https://digitalcommons.law.buffalo.edu/cgi/viewcontent.cgi?article=1225&context=articles) accessed 11/12/2018
- See note 13, p. 834
- See note 5, p.4
- See note 13, p. 834
- See note 13, p. 841
- Sparf v. United States 156, U.S. 51 (1895)
- Peter Kirchschlaeger, “THE RELATION BETWEEN DEMOCRACY AND HUMAN RIGHTS” (2014) 112 Globalistic and Globalisation Studies, p.120 (https://www.sociostudies.org/almanac/articles/files/globalistics_and_globalization_3/112-125.pdf) accessed 11/12/2018
- European Convention of Human Rights (ECHR),Article 6 (https://www.echr.coe.int/Documents/Guide_Art_6_ENG.pdf) accessed 11/12/2018
- The Law Commission , “A New Homicide Act for England and Wales?” , Consultation Paper 177, p.45(https://www.law.upenn.edu/cf/faculty/cfinkels/workingpapers/Report%20for%20British%20Law%20Commission%20cp177.pdf) accessed 11/12/2018
- Neil J. Vidmar, “Empirical Research and the Issue of Jury Competence” (1989) 52 LAW AND CONTEMPORARY PROBLEMS, p. 1 (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=4005&context=lcp) accessed 11/12/2018
- See note 22, p.1364
- Aristotle, Politics (Book 3, Chapter 11) p.3 (https://www.princeton.edu/~pswpc/pdfs/ober/090901.pdf)
- Neil Vidmar and Valerie P. Hans, American Juries: The Verdict (Prometheus Books 2007) p.340
- Nancy J. King,”Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trials” (1996) 49 Vanderbilt Law Review p. 123-124 (https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/vanlr49&id=139&men_tab=srchresults), accessed 12/12/2018
- Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton University Press 2004), p.43-45
- Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Belknap Press of Harvard University Press 1998), p.13-14
- See note 5, p.871
- See note 22, p.1362
- See note 5, p. 872