Upside-Down Juries

Abstract

The practical disappearance of the jury trial ranks among the most widely examined topics in American criminal justice. But, by focusing on trial scarcity, scholars have managed to tell only part of the story. The unexplored first-order question is whether juries even do their work well. And the answer to that question turns on the kinds of work jury members are typically required to do. Once upon a time, trials turned upon practical reasoning and general moral blameworthiness. Modern trials have come to focus upon legal reasoning and technical guilt accuracy. In turn, the jury has evolved from a flexible body to a rule-bound institution. But, of course, even as trials have changed, laypeople’s capacities have stayed largely the same. Laypeople remain more skilled at the art of equitable evaluation than the science of legal analysis.

It does not follow, however, that the criminal justice system should revert to equitable trial practices. The modern trial is professional and legalistic for good reason. The rule of law commands that criminal convictions be products of precisely drawn criminal codes and formal processes. Nevertheless, there are other procedural stages - arrest, charge, bail, bargain, and sentence - where equitable discretion is more appropriate. These are the stages at which criminal justice should concentrate lay efforts.

In this conference essay, I describe the historical and constitutional trends that have entrenched popular participation in all the wrong places. And I propose redirecting jury practice from criminal trials to other adjudicatory sites. Finally, I make the case that my reforms are consistent with (and perhaps even integral to) the legality principle, properly considered.

Keywords: Juries, Sixth Amendment, Democratic Experimentalism, Popular Participation, Particularism