by Matt Barr

Professional juries

You should read the fascinating exchange of articles for and against "professional juries" appearing recently in the pages of TCS Daily. Alex Knapp says hire people to be nothing but jurors here; Doug Kern makes the opposite case today.

Without going blow by blow through the arguments, I'll distill them (read the full pieces for more, and better, details). Juries are inconsistent and too often incorrect, owing to the fact average people (or, to use the old joke about juries, people not smart enough to avoid jury service) don't have the intellectual heft to process detailed scientific and forensic evidence, can't be trusted to competently weigh complicated arguments, and generally lack the intelligence and good judgment necessary to protect the rights of defendants and plaintiffs alike. A "professional" jury would not be intimidated by or unfamiliar with the trial process, making them more likely to devote their full attention to the important stuff as well as more likely to see through attempts by the government to put one over on its citizens.

The argument against this is practical but also philosophical: There's too much good in the idea that "the law cannot punish a man without the permission of twelve ordinary citizens" to chuck it all. Practically speaking, professional juries would be expensive, apt to let the dozens of other trials they'd seen color their consideration of the facts in the current one, would deprive citizens of the educational value and civic virtue of service, and are unnecessary: If you want a professional trier of fact, you can waive your right to a jury trial and cast your lot with a judge. And anyway, the vast, vast majority of trials aren't complicated at all. They just also don't get on Court TV and the nightly news.

One other argument Kern makes is worth highlighting: "In a system of professional juries, your freedom and your finances would be won or lost based upon the thoughtful deliberations of government employees." Zoiks!

Readers won't be surprised that I would keep the current system, but here are a couple arguments Knapp didn't make but should have: Compulsory jury service disrupts lives and commerce on the individual family and business level to a sometimes dangerous degree. In a society that struggles to get half its voting age citizens to the polls for national elections, we should look at how to keep community service from seeming like eating your vegetables and washing behind your ears, and something to be avoided at all costs. Whatever virtue there is in 12 people standing between an out of control government and an innocent citizen doesn't exist in the civil context, so let's at least empanel professional juries for civil cases.

The first two points, while true, aren't best solved by eliminating public jury service. Keeping jury service from being a disruption wouldn't entail doing less of it, necessarily, but more -- if everyone really had to go to the courthouse for jury service often enough, it would be perceived as an obligation one has in common with everyone else, instead of being like losing some dreary lottery. And boosting the image of community service isn't accomplshed by requiring less service.

I like the third point best, if only because it better frames the argument. If this is a good idea in civil cases, we can think about it later for criminal cases. Still, the implicit assumption that there's less at stake in civil cases than criminal is flawed; that isn't always true. Would you rather spend 90 days in jail or get socked for a money judgment that drains your finances and makes you uninsurable?

If I were Kern, I would have led with this argument, which riffs a little off his "government employees" zinger: The kind of people likely to seek jobs as professional jurors are not the next Albert Einstein. For sheer drudgery, professional jurorship would rival baggage screener at an airport. The occasional salacious testimony now and then is surely rivalled by the odd confiscation of a live hand grenade. If we wanted a certain level of higher education you'd need to pay more than that to keep qualified candidates from getting more rewarding jobs, such as as a bank teller, but not by much.

Then there's the reality that given a "better" jury, many trial lawyers wouldn't know what to do with it. I was on a jury last summer (I blogged about it briefly) which considered a domestic violence case in which he was supposed to have assaulted her. The defense had two tacks: It was a fight instigated by her and whatever injuries she got were self-defense, and her dad is the County Sheriff and has railroaded our defendant in revenge for laying a hand on his daughter.

Our defense attorney spent his peremptory challenges getting rid of the young to middle aged women from the pool; I would think that in today's day and age they would be more sympathetic to the argument that a woman might actually have had enough and started wailing on the guy. I personally would have removed fathers of daughters from the jury, and not only because I'm one. If I'd been the Sheriff, I can't tell you for sure I wouldn't have done whatever I could to make life hell for the guy. We convicted, at least in my case because the defendant admitted he'd grabbed her mouth (splitting her lip) to keep her from yelling, which isn't self defense.

The point being that a jury is essentially a tool in the hands of the attorneys, and your fate is bound up far more in how they use it than in anything else.

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