This Is Why We Really Should Get Rid of the Jury System

The American legal system survives because of people’s unwavering faith in a set of false beliefs, like justice is blind, or that people can “objectively” observe a set of facts.  The reality is that justice is only legally blind, but she wears corrective lens. And objectivity, well objectivity is simply a myth. We all view the world through our own bias lens, which is formed from our unique experiences.

One of the biggest myths undergirding the legal system, however, is the belief that the jury system works.  It doesn’t. It is terribly broken, and if we are not willing to do the hard work to change it, then we must get rid of it altogether.

Admittedly, replacing the jury system will require a seismic shift, but it is needed. What that shift should look like is not the subject of this post, however. Rather, I want to share at least two major reasons why I think we should get rid of juries because fixing the problem requires first that we acknowledge its existence.

It’s Racist!

One of the most frustrating parts about practicing law, especially civil rights law, was the jury selection process known as voir dire. (I explained this process further in a post about why minorities should serve on the jury.)

Without fail, every time during voir dire, the attorney for the other side, whether a prosecutor or the defense attorney in the civil rights cases, he or she would try to remove all the black people from the jury.

Now, there are two ways to remove a potential juror: 1) for cause or 2.) by using a peremptory challenge. An example of a cause challenge is if the person is unable to physically serve on the jury or it would be a financial hardship for them. Attorneys have unlimited cause challenges, but these are not easily granted.

A peremptory challenge, on the other hand, allows an attorney to strike a set number of potential jurors for any reason they want, or no reason at all.  They just cannot strike someone because of their race and other protected categories (i.e. sex, religion etc.).

It is in exercising these peremptory challenges that many prosecutors choose to strike black people from juries.  When we would ask for a race-neutral reason as to why they struck a black person, the explanations ranged from mildly believable to the absurd. Often it was blatant foolishness meant to cover up their duplicity.

Lest you think I’m being too sensitive, I would encourage you to listen to these episodes on the podcasts More Perfect and In The Dark. Both episodes discuss other attorney’s experiences with racism in the jury selection process from across the country.  You can also read the report conducted by the Equal Justice Initiative about the persistent racial discrimination in the jury selection process.

The exclusion of black people from the jury process has a long history in our country.  Why? Because sitting on a jury is an extremely powerful position to be in. Juries can hold wrongdoers accountable, deem others not guilty, and end the lives of some.

Our constitution states that this body must reflect the accused (see the 6th Amendment). However, the reality is that the justice system is all too content with allowing racism to skew this body of peers toward looking like one demographic, thereby usurping the power out of the hands of others.

Black and brown jurors are frequently denied access to this great position of power but are often on the receiving end of this great force.  This is a legal pervision. If we aren’t willing to actually change this about the jury system, then we must get rid of it.

What we ask of the jury is unfair

Not only does our jury system thrive on racism, but it is a bit absurd.

In law school, we learn that juries do not decide the law, but they are the arbiters of the facts. In other words, they listen to the evidence and decide whether or not someone is guilty based on the facts. We’re given this picture that there is a clear demarcation between what a jury does (decide the facts) and what a judge does (make conclusions of law).

But the line between the two isn’t so tidy. In reality, juries decide the facts only after they’ve deciphered and siphoned through the law. If you have ever served on a jury, then you know that before you deliberate, the judge reads the jury instructions to you.

These jury instructions are filled with legal language that we all pretend the jury understands perfectly after having it read to them once.  And just to make sure they understand, we let them go back to the deliberating room with the instructions (I hope you hear my sarcasm).

The reason why this is absurd and really unfair to the jury is that we essentially expect a body made up of people with a wide range of educational levels and intellectual capacities, to somehow have a legal standard read to them once and not only perfectly understand it, but apply it properly to real facts.

Meanwhile, it took us lawyers, three years of law school and passing a state bar before we were deemed competent enough to understand these same legal principles. To be sure, being a lawyer is different than being a  juror, but we are both asked to understand and interpret the law.

I do not know how the justice system can assume that jury instructions are sufficient to ensure that the jury understands the law and the task required of them.  My experience with jury verdicts indicates that there is a disparity between what the law requires, and what the jury understands.

I have witness serval verdicts that were internally contradictory and did not comport with the law. You could tell the jury was confused. However, the courts are more committed to finality than logic when juries rule, and so we continue to put these impossible burdens on juries. It’s crazy and it must stop.

I could go on about the flaws in the jury system, like how juries magically can reach consensus the closer to 5 pm you get, or how strong personalities can dictate the outcome regardless of the evidence.  However, I think my point is clear. We must fix the jury system if it is to work for everyone, otherwise, what’s the point in having it? We might as well just get rid of it!

–Until Next Time–

Palooke