The Case Against Juries
Updated: Sep 14, 2020
The jury concept has been in existence throughout recorded history. The year 1066 is often cited as the year in which the first official jury, which consisted of neighbors judging a neighborhood crime, formed. Since then, juries have come and gone, mainly diverging between developed eastern and western countries.
Europe and other nearby regions formally implemented the jury system after the French Revolution in the 1800s as a democratic symbol. However, by the mid-1900s, these same countries (including England, Germany, and France) significantly adapted their original juries. In 1941 for instance, France changed the jury structure to include both lay persons and seasoned judges to offset the perceived “acquittal-proneness” of lay people alone (1). In 1955 when Germany gained its sovereignty after WWII, the jury was completely abolished and replaced with a panel of judges. In 2010, the European Court of Human Rights heard a case, Taxquet v. Belgium, that challenged whether it was a human rights violation for a defendant to be declared guilty without being provided reasons for conviction. The Court unanimously found that it was in fact a violation of human rights and the decision prompted Belgium to adopt a new law requiring courts to explicitly state reasons for conviction. The United States, however, has not followed suit with any similar changes. The U.S. has maintained the right to a trial by jury in the sixth and seventh amendments of the Constitution, as originally ratified in 1788. Of all the jury trials in the world, the United States tries more than 90% of them. Further, the Supreme Court has overturned a lower court's ruling a striking 70% of the time. That’s not to blame juries – it’s to give a reason for reevaluating the entire judicial system. Here is the case against juries.
One of the most compelling reasons for skepticism of juries is groupthink. Psychology today defines groupthink as “a phenomenon that occurs when a group of well-intentioned people make irrational or non-optimal decisions spurred by the urge to conform or the belief that dissent is impossible.” Groupthink leads to agreement without regard for the outcome. The theory is a relatively new concept, developed by Irving Janis in his 1972 research paper Victims of Groupthink. Janis states that consensus (emphasis mine) is a key part of the collective decision-making process, especially when unanimity is required. Criminal cases require a 12-person unanimous decision to find a defendant guilty. Civil cases, in most states, require a 6-person unanimous decision. Asking a jury to agree on a guilty or not guilty verdict can be disastrous for a fair trial if the jury falls victim to groupthink. A 12-person group can lead to the absolving of individual responsibility and the reliance on others to make tough decisions.
There have been numerous social experiments conducted to test the theory of group conformity. The most popular is the Asch Conformity Experiment, first tried in 1951 and followed up with variations in the decades that followed. Participants are asked to identify which line (A, B or C) is closest in length to the target line.
Results have depended on circumstances. The key takeaways, as summarized in Simply Psychology are:
Consensus increases as difficulty increases
Consensus depends on group size, where conformity is highest (32%) in groups of 3
The presence of one dissenting view can reduce conformity by as much as 80%
Participants with backgrounds in engineering, mathematics, or chemistry only conformed in 1 of 396 trials
Consensus decreases when participants answer in private
These findings show that group conformity due to situational influences, and not factual data, is a real possibility. The concept of a jury is well-intentioned, bringing together a panel of diverse views to objectively judge the facts, but the practical application can break down because it fails to address human psychology. Juries are not the only place the idea breaks down either. Researchers have studied the effect of groupthink on high stakes militaristic and political decisions, such as with the unsuccessful Bay of Pigs Invasion, and hypothesized the contribution of groupthink.
Even without groupthink, there is the natural dynamic of groups – multiple personalities, high voices and low voices, analytical brains and quick decisive brains, outgoing expressions and reserved expressions, religious values and nonreligious values. What guarantee is there that the most charismatic member won’t sway the rest of the group, regardless of the evidence? Audrey Pischl recounts her deliberation time as a juror:
It was just like high school: the jurors got to know each other, had lunch together, shared some laughs during recess. During the six-week trial, things could get frustrating, too: Each of us had our own beliefs and ideas—and prejudices. Mix that in with the people who were in a rush to get back to work or tired of jury duty, and we got a dead end.
As alluded to, there are basic human needs and tendencies to consider as well – attention spans, desire to connect with family not accessible during jury duty, availability of food choices and jury seating accommodations. Some of those factors may initially seem petty and insignificant. However, they play into the potential irritability, boredom, and cynicism of the jury process. It’s not unlike common situations where workers are asked to attend a training they aren’t interested in, or when customers wait on hold to talk to a representative, or when drivers wait in line for the next available DMV appointment. The emotions and feelings ensuing from a personally dissatisfying situation are an authentic part of life, but they can become a societal downfall when decisions are made in haste and there is no easy recourse, as is the case with jury decisions. Convicted defendants, who are later found innocent, can remain in prison for years.
Lack of Compensation
The argument can be made that juries should decide rationally regardless of emotions because adults are used to dealing with their emotions in everyday life. However, aside from moral consciousness, there is little incentive for jurors to strive for the best outcome. At the time of writing, federal jurors are paid $50 a day with an additional stipend for parking and meals. Assuming a typical eight-hour work day, that’s a mere $6.25 per hour. There are a handful of states that require companies to pay employees their regular wages for a portion of jury duty, usually on the order of at least 1-3 days or up to a specific per diem dollar amount. However, even the states that do have wage compensation laws do not fully address the issue – New York and Connecticut only require $40 to $50 be compensated per day. The exceptions are Tennessee, Alabama, and Nebraska, which do not place a daily or per diem limit on jury duty wage replacement.
Compare jury duty’s typical low compensation to the realm of executive pay. Large public companies, for example, continually claim that their executives need proper incentive (in the form of monetary compensation) to steer their companies. This approach is commonly called “pay for performance”. Why should jury duty be any different? How can the American people reasonably expect jurors to give their best effort when they can be better compensated in a minimum wage job?
One major issue with the pay for performance structure is that companies can judge a CEO’s performance on bottom line profit, but courts have no baseline metric to judge a juror’s decision. Regardless, even if the direct performance pay concept cannot be applied, the concept of higher compensation should not be dismissed.
Alternatives to the Current Jury Structure
Given the potential pitfalls of juries, process changes could be implemented to reduce the likelihood of folly. None of the next ideas are silver bullets, but they offer dynamic alternatives that could be used as a starting point for reform.
If smaller juries were implemented, per person pay could increase, without requiring any additional funding, to better incentivize jurors. A 12-person jury could reduce to 6, hence doubling the pay of each juror. This reduction would yield a more competitive juror selection, but it may also have an undesirable consequence of narrowing the jury’s broad demographic. If a 12-person jury were to remain, baseline requirements could be put in place to curb groupthink, such as requiring at least 2 jurors to have backgrounds in mathematics or sciences. The Asch Conformity experiments showed a reduction in consensus from participants of these backgrounds, but personalities are unique and additional studies may be needed to validate the theory. To level the playing field for different personalities, the deliberation time could have an element of structure, with set windows for each juror to speak. This could even be conducted with a moderator to ensure that louder personalities have the same opportunity as quieter personalities. These options are new, but the United States could also draw on the experience of other countries. Referencing back to Germany, for instance, where judges investigate evidence and interrogate witnesses in criminal cases.
Modifying the jury system would be a monumental task. With people’s lives on the line, there would be no room for error. However, even professors of law have identified flaws with the jury system. To continue ensuring fair trials, it is part of America’s duty to adjust and modify the judicial system as new research becomes available. Modernizing the jury system would let America’s lawyers, judges, professors, past jurors, and citizens have a refined shot at a fair trial.