OUR JURY SYSTEM

Re: OUR JURY SYSTEM

The jury in the English system dates back to Edward I, who launched two major initiatives to centralize power in the monarchy, and to marginalize the baronage and the peerage--the "overmighty lords." One was the Parliament. The first parliament called in England (of which i am aware as being convened in that name) was called by the Monforts, in the period of their rebellion against Henry III, the father of Edward I. Edward instituted a more or less permanent Parliament as a means of extracting revenue from the nation without reference to feudal dues or loans by the peerage or the clergy. His use of the Commons was to get a "rubber stamp" on his revenue initiatives, and he instituted a House of Lords, to give a cachet of "universality" to the body, and to co-opt the political influence of the Lords by making them a party to the measures which came from Parliament. Significantly, money bills could only originate in the Commons, and the Lords vetoed such measures at their peril (in terms of public opinion, which Edward obviously understood better than they did). The House of Lords finally surrendered right of veto in (i believe) 1911 when they had vetoed the budget of Lloyd George's House, and were threatened by a creation of peers by the then politically emasculated monarchy.

The other creation was the jury system. A jury member (then) simply means someone who is sworn. This was another effort to bind the people to the throne, bypassing the aristocracy. Jury members in the 13th century were sworn for the purpose of standing surety for an accused of their community, and/or to offer testimony in mitigation or condemnation of the accused. The concept of a "jury of one's peers" comes from Magna Carta, which was arguably forced upon Edward's grandfather, John. In the sense of that document, one's peers only has reference to the members of the aristocracy. Edward's move to officially recognize, to "see" the Commons, was brilliant. It did effectively bind the people to a monarch, whose historical image has not been at all positive--he was considered a cruel and dangerous monarch by those who "mattered," i.e., by the peerage. The jury system has evolved, of course, since the 13th century, a time when it was not conceived to pass on issues of guilt or innoncence, and not called upon to make findings of fact. Nevertheless, since that time, the jury has served to give the people the feeling that they are involved in the justice system. Personally, i don't consider that it is necessarily axiomatic that a jury cannot reasonably make findings of fact, or that a few "experts" would be better at the process. Personally, i feel that the jury system would be abaondoned at the peril of the polity.

By the way, i agree with the import of Miller's question, if he means what i would mean by questioning that statement. In our system, it frequently occurs that both the prosecution and the defense call "expert" witnesses who disagree about the meaning of evidence. That not only does not suggest that expert testimony is beyond dispute, it suggests the opposite.

To be a bit anecdotal, consider the absurd verdicts in the Blake and OJ cases. Horrible jury decisions don't always occur, but they happen a lot. I think inspires those who want tort reform.

Even with expert witnesses, I think juries often remain confused and misguided.

Consider the typical jury. It often consists of blue-collar, retired, and uneducated people. Often, the juror is a housewife. I don't say this in denigration. However, would these people be competent to decide in the Enron prosecutions? Probably not!

That does not address the issue of both prosecution and defense providing expert testimony which conflicts. Futhermore, the majority of cases decided by juries are not trials like Enron and the Simpson trial. I was in a courtroom once in which the judge asked the prosecutor what gerontology means, and the prosecutor couldn't tell him. Granted, that was a county superior court, and probably not typical of the level of education and expertise of members of the legal profession--but whether or not, can one reasonably expect the judge and the legal counsel to understand the intricacies, for example, of Enron's bizarre accounting dodges? Who then is to appoint the requisite "experts," and who to vet their credentials? Who is to assure that a few people who claim expertise will not view a defendant or a plaintiff prejudicially? It seems to me that it would be a much simpler matter to pack a jury of three than a jury of twelve or fifteen people.

Actually, the OJ verdict wasn't absurd at all - the prosecution was too busy preening for the cameras that they never bothered to actually put the defendant at the scene.

Experts can and do conflict, but that doesn't mean that laypersons cannot make a judgment between two or more differing opinions. One area where a jury more or less isn't needed, though, is the grand jury system. Instead of having grand juries holed up for months, handing down indictments, having prosecutors prepare what are called "informations" is just as effective. A lot of states have adopted this method, I have no problem with it although, in theory, there might be a matter or two that goes to information which would not have gone to indictment, but states with the information system do not seem to suffer from significantly more frivolous or mistaken prosecutions than states still under the grand jury system.

Each side presents their expert witnesses, and it is up to the judge to decide whether the person can testify as an expert. There would be no change in this.

Since there is no jury selection process in my system, there would be no packing. There is plenty of packing in the present system in which each side has preemptory challenges, etc.

Through TV and radio, I heard most of the OJ case. I thought the prosecution did a great job presenting irrefutable evidence: blood, footprints, gloves, shoes, timeline, motive, past attacks, etc. All 12 of the jury disregarded this and acquitted. It was a similar situation in Blake.

The most amazing case involved the Menendez brothers, who killed their parents with shotguns to get $12 M. Half the original jury bought the argument that it was somehow self defense, even against the loving mother who did nothing but baby the brothers.

Civil cases are probably worse. When a plaintiff's lawyer has no real case, he or she will demand a jury trial. The lawyer knows that it is not too difficult to trick a jury, as opposed to a judge.

Actually, it tends to not be in a civil plaintiff's best interests to demand a jury trial, as it takes longer than going in front of a judge, and plaintiffs and their lawyers are not paid until there is a settlement or monetary verdict in their favor.

In a civil, contingency-fee case, the plaintiff's lawyer may be quite pleased in getting 25 % of the settlement. Possibly, his case was weak. Also he might be spending a minimal amount of time on the case, whereas trying a case usually involves a great expenditure in time and effort.

Advocate, most demands for jury trials are bluffs to push for a settlement. And the vast, vast majority settle. A few don't, despite judges' and counsels' best efforts -- clients may balk, the numbers may not be close enough, etc. You're right that, with a weak case, a plaintiff's attorney may want to take the money and run -- and many do. But an overhaul of the jury system is thoroughly unnecessary for that to happen as it's happening already.

I am talking about only situations in which there is a jury. Our system stinks, and I think I detailed why. What is so great about our present system?