September 6th, 2018


I got back not long ago from my second day in a courthouse, as part of a jury selection pool from which I was eventually excused.

During the selection process, the judge explained to juror candidates, over and over, that they were there to decide on the facts of the case, but not on the validity of the law; that it was their duty to make their decisions based on the law and on the judge's interpretation of the law, and not on their own views of what the law was or should be or what was right. And of course that's completely orthodox; nearly every jury is told the same thing. But as I listened to it, repeatedly, it kept sounding worse to me every time.

In the first place, if the goal is to evaluate the facts, I don't see that jurors are especially good at that. I remember when I served on a jury, and we were told the four elements of "assault with a deadly weapon," and all the other jurors were convinced that find evidence for ANY ONE of those elements was enough to convict. (Lunchtime was approaching, and I think they all wanted to get done quickly—as the poem says, "Wretches hang that jurymen may dine.") The other juror candidates in the current pool didn't seem any better are making distinctions or reasoning carefully. And I've heard similar things from friends who've been on juries. If I were to be tried, I think I would rather waive a jury and have the judge evaluate the facts.

But in the second place, I don't think that limited role is why juries were built into the American constitutional system as a safeguard for freedom. Historically, juries refusing to convict was part of the struggle over laws like the Alien and Sedition Acts; and often those refusals to convict were a reflection of political and legal dissent.

In fact, it seems to me that the judge's instructions reflected a basic misunderstanding of the constitutional role of the jury. She was treating jurors as if they were functionaries within the judicial branch, unskilled draftees recruited to carry out a specific, narrow task. But I think the jurors are meant to be there as citizens. And citizens, as Hamilton explained, stand above all three branches of government; it's their consent that empowered any agency of government to act. It seems to me that a jury is a sample of the citizenry, for the purpose of giving the citizenry the chance to disavow, and even stop, judicial acts done in their name; to say, in effect, "Now hold on, that's not right!" That's akin to the origins of equity, which grew out of kings saying, "I don't care what the law says—that's not right and you can't do it," but adapted to a republic where the people and not the king are sovereign; and it's akin to the Roman institution of the tribune, a magistrate who had the power, not to command action, but to stop other actions, veto laws, and even shut down government. It's a way to bring the people into the judicial process directly, and to let them disavow a law. And I can see a point to that function. But it's a function that the standard admonition is designed to thwart.

On the other hand, a jury that can do this can also do it for bad purposes. It can refuse, for example, to convict a gay-basher, or the leader of a lynch mob, or a man who shoots his wife's lover. So it's not a safe power to allow, and the risks have to be thought about.

Still, when I listened to that instruction, explained over and over, I kept imagining myself being called to account for a verdict I had voted for, and saying, "I vass only followink orrders!" I really have doubts about whether a juror who accepts those orders from a judge is worth having, let along worth giving a constitutionally protected role to.