Terrorism and Trial by Jury: The Vices and Virtues of British and American Criminal Law
Georgetown University Law Center
March 12, 2012
Stanford Law Review, Vol. 59, 2007
Georgetown Public Law Research Paper No. 12-029
British tradition and the American Constitution guarantee trial by jury for serious crime. But terrorism is not ordinary crime, and the presence of jurors may skew the manner in which terrorist trials unfold in at least three significant ways. First, organized terrorist groups may deliberately threaten jury members so the accused escapes penalty. The more ingrained the terrorist organization in the fabric of society, the greater the degree of social control exerted under the ongoing threat of violence. Second, terrorism, at heart a political challenge, may itself politicize a jury. Where nationalist conflict rages, as it does in Northern Ireland, juries may be sympathetic to those engaged in violence and may acquit the guilty. Alternatively, following a terrorist attack, juries may be biased. They may identify with the victims, or they may, consciously or unconsciously, seek to return a verdict that conforms to community sentiment. Jurors also may worry about becoming victims of future attacks. Third, the presence of jurors may limit the type of information provided by the state. Where national security matters are involved, the government may not want to give ordinary citizens insight into the world of intelligence. Where deeply divisive political violence has been an issue for decades, the state may be concerned about the potential of jurors providing information to terrorist organizations. These risks are not limited to the terrorist realm. Criminal syndicates, for instance, may try to intimidate juries into returning a verdict of not guilty, and public outrage often accompanies particularly heinous crimes. But the very reason why these other contexts give rise to a similar phenomenon is because terrorist crimes have certain characteristics-characteristics that may be reflected in other forms of crime, but which are, in many ways, at the heart of what it means for an act to be terrorist in nature: terrorist organizations are created precisely to coerce a population, or specific individuals, to accede to the group's demands. The challenge is political in nature, and the method of attack is chosen for maximum publicity. Terrorist organizations, moreover, can and often do use information about the state to guide their operations. It is in part because of these risks that the United Kingdom and United States have changed the rules governing terrorist trials-at times eliminating juries altogether.
This Article reflects on the relationship between terrorism and jury trial and explores the extent to which the three dangers identified can be mitigated within the criminal-trial framework. It does not provide a comprehensive analysis of the rich case law and literature that address jury trial - one of the most studied legal institutions on both sides of the Atlantic. Instead, its aim is more modest: The text weighs the advantages and disadvantages of suspending juries specifically for terrorism. Here, the United Kingdom's experiences prove illustrative. The Article considers the extent to which similar concerns bear on the U.S. domestic realm, and the decision to try Guantánamo Bay detainees by military tribunal. It suggests that the arguments for suspending juries in Northern Ireland are more persuasive than for taking similar steps in Great Britain or the United States. This Article then considers ways to address concerns raised by terrorism that stop short of suspending juries. Juror selection, constraints placed on jurors, and the conduct of the trial itself provide the focus. Of these, emphasis on juror selection, although not unproblematic, proves most promising. Again, distinctions need to be drawn between the United Kingdom and the United States. In the former, for instance, occupational bars to jury service could be lowered, while in the latter, increased emphasis on change in venue may prove particularly effective. Changes in the second category, constraints on jurors, may be the most damaging to the states' counterterrorist programs. Finally, while changes in the trial process may help to address risks, they also may prove contentious and be prone to seeping into the criminal realm. The Article concludes by questioning whether and to what extent such alterations could be insulated from the prosecution of non-terrorist criminal offenses.
Number of Pages in PDF File: 45
Keywords: National Security, Terrorist Trials, Jury Trials, Criminal Trials, Military Tribunals, Terrorist Prosecution, Criminal Law, Comparative Law
JEL Classification: K14, K33, K4, H56Accepted Paper Series
Date posted: March 14, 2012
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