Feb 22, 2010

support your local jury

If you're studying the March / April jury nullification resolution, you might want to check out William L. Dwyer's In the Hands of the People, a book-length love letter to the American jury. I'm going to post a few things from it, starting with an argument for the epistemic superiority of the jury as a democratic institution.

Think about the legitimate limits on government overreach allowed in most social contract theory: checks and balances, judicial review, sunshine commissions, freedom of speech, an independent press, a bill of rights, elections, protests, and even revolution. Is a jury equal in impact and importance? Absolutely. As Dwyer argues,
If jury trials as a rule produce sounder results than we can count on in elections--which I believe they do--one reason may be the quality of information given to the citizens who must decide. In contrast to the chaos and mendacity of much political campaigning, and to the scattergun delivery of thirty-second television commercials, a jury hears testimony that is kept to the point by an impartial referee, tested by cross-examination, and offered throughout a day. We should be able to learn something valuable from the differences in communication.

With about 1.5 million Americans serving in courtrooms each year, the trial jury achieves a unique dispersal of governmental power. Far from being obsolete, it gains importance as elected officials become more distant from those they represent. When the United States government began, there was one congressman for every 38,000 constituents. Due to population growth, there now is one for every 647,000, a seventeen-fold increase in remoteness; state legislatures have seen a similar change. The jury, by placing decisions directly in the hands of the people, bridges the widening gap between citizens and their government. Our challenge is not just to keep it, but to restore it to full health amid new and difficult conditions.
Dwyer's work was published in 2002, and in the intervening years, a few things have changed. The explosion of news outlets, blogs and social media arguably place governments closer to the citizenry, but at the cost of raising the noise-to-signal ratio. Furthermore, the population has grown, and the recent Supreme Court decision to relax restrictions on corporate electioneering, along with the perpetual growth of K Street lobbying, means that one of the average citizen's most direct influences on government is still through jury service.

Now, this doesn't argue for nullification per se. It does, however, place the jury on its proper footing, as an essential component of a functional free society. We'll save Dwyer's thoughts on nullification for another post.

Updated: And those thoughts are found here.


Anonymous said...

The historical view of the jury tends to support nullification. Juries have nullified at least as far back as Magna Carta, and famous cases from history are plentiful -- John Peter Zenger, William Penn and William Mead, Bushell's Case, the Seven Bishop's Case, John Lilburne's case, etc.

The founders believed the jury was important not just as a check on the judge, but as a check on the legislature and the government as a whole. I'd suggest Clay S. Conrad's book, Jury Nullification: The Evolution of a Doctrine for a development of the history.

Jim Anderson said...

Thanks for the recommendation. The more I study the issue, the more tenuous I find the Negative position. I wonder if others feel the same way.

Stewart Pence said...

I personally happen to love the negative on this topic, as far as case writings have been concerned, much more than the affirmative. In a few days, I might send my negative ideas along with some evidence for a future post.

But I digress. I found this article to be one of the most helpful on the topic thus far. Government disillusionment and the degree of separation is definitely one of the most glaring problems of Democracy, and bridings this gap alone can be seen as a sole reason for justification; not only because a) juries are still consistent with democratic ideals, b) they are non governmental agents, and c) they help to mitigate the gap between.

Stewart Pence said...


Jim Anderson said...

Stewart, I look forward to it.