liberty, democracy, and the role of the jury

[Regarding the March/April jury nullification resolution.]


What is the right and proper role of a jury? Proponents of nullification like to point to historical examples, like the Zenger trial, as proof that the practice is legitimate and necessary for a functioning democracy. Not so fast, writes Daniel P. Collins in "Making juries better factfinders," found in the Winter 1997 edition of the Harvard Journal of Law and Public Policy.

As I see it, the most important reason for preserving trial by jury in criminal cases is not to promote democracy or to encourage "appropriate" nullifications; rather, the reason is to promote accurate determinations of guilt. It might be argued that juries are not well able to produce accurate decisions. But a look back at history--around the time the Constitution was adopted--will show that the Framers' belief in the accuracy of jury decisionmaking was one of the primary reasons given for protecting the right to a jury trial.

In the debates over the Constitution, there was repeatedly mentioned a great fear that judges would be biased or, at least, that they might be too idiosyncratic in their decisionmaking. Thus, while not much discussion of the jury provisions appears in Madison's notes of the convention, at one point Elbridge Gerry says that the Constitution should also provide for juries in civil cases in order to avoid against the possibility of corrupt judges. Alexander Hamilton, in Federalist No. 83, argued that by securing a right to jury trial in federal criminal cases the proposed Constitution provided for the surest defense against "the great engines of judicial despotism," which were "arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions." An anonymous pamphleteer, during the course of the debates on ratification, had the following to say: "The Chief Magistrate... of a republic, is as liable to personal prejudice, and to passion, as any King in Europe; and might prosecute a bold writer, or any other person, who had become obnoxious to their resentment, with as much violence and rigour." And Richard Henry Lee remarked that if the administration of justice be "entirely entrusted to the magistracy, a select body of men, and those generally selected by... such as enjoy the highest offices of the state, these decisions in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity."

With all due respect to judges, it thus seems clear that the Framers were concerned that an individual judge might not fairly and accurately weigh the evidence in a case. By contrast, a jury was thought to reflect the common sense of the community and thus would not suffer from the biases or idiosyncracies [sic] of an individual judge. As Jefferson put it:

In truth, it is better to toss up cross and pile [heads or tails] in a cause than to refer it to a judge whose mind is warped by any motive whatever, in that particular case. But the common sense of twelve honest men gives still a better chance of just decision than the hazard of cross and pile.

...And a letter, written by one of the convention delegates from Georgia, puts the point this way:

As to trial by jury in criminal cases, it is right, it is just, perhaps it is indispensable,-the life of a citizen ought not to depend on the fiat of a single person. Prejudice, resentment, and partiality, are among the weaknesses of human nature, and are apt to pervert the judgment of the greatest and best of men.

Indeed, the United States Supreme Court, in its cases discussing the nature of the right to a jury trial, has tended to emphasize the jury's role as an impartial factfinder. In a civil case from the nineteenth century, the Court stated that "[i]t is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge."

For every Affirmative arguing that the jury is an instrument of democracy, the Negative can respond by arguing that it's meant to protect individual liberty. In a criminal trial, we err on the side of caution--"innocent until proven guilty"--because we fear punishing the innocent more than letting the guilty go free. And, as Timothy Sandefur writes,

...the Progressivist interpretation... sees "democracy" as the central value of the Constitution, and sees individual liberty as a privilege that is created by the government in order to promote "democracy." This is the opposite of the view of the Constitution's authors: they believed that the fundamental constitutional value was liberty, and that democracy existed only to serve liberty. That's why the first sentence of the Constitution declares that liberty is a "Blessing," and why the Constitution goes on to impose serious limits on democracy.

Of course, this argument, in the hands of a capable Affirmative, might be the foundation of an individual rights-based case.