The Jury Trial Reinvented

46 Pages Posted: 5 Mar 2021 Last revised: 22 Sep 2021

See all articles by Christopher T. Robertson

Christopher T. Robertson

Boston University; University of Arizona - James E. Rogers College of Law; Harvard University - Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics

Michael Shammas

Tulane University School of Law; Harvard Law School; Duke University; The Civil Jury Project; U.S. Court of Appeals for the Sixth Circuit; U.S. District Court for the District of Maine

Date Written: September 21, 2021

Abstract

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential institutions for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The Covid-19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin using technology to transcend time-and-place limitations. These reforms inspire more profound changes.

Rather than abolishing or cabining the jury trial, it should be reinvented with the benefit of modern science and technology. Features to be reconsidered include having local juries even for national civil cases, using unrepresentative groups of only six to twelve jurors, allowing attorneys to arbitrarily exclude jurors during voir dire, having synchronous and chronological presentations of cases over days or weeks, asking jurors to ignore inadmissible evidence and arguments that arise during live trials, and relying on secretive deliberations infected by implicit bias.

Several of these extant practices work to disenfranchise or disempower Americans along racial, gender, and class lines, thereby undermining one of the jury’s core functions. Other features cause jurors to err in resolving cases accurately, which can sometimes mean the difference between life and death. A reinvented, modernized jury institution can better serve its purposes by increasing citizen engagement; better fostering civic education and democratic deliberation; improving accuracy in sorting truth from falsehood; and enhancing efficiency in terms of both time and cost.

Keywords: jury, civil procedure, sixth amendment, seventh amendment, voir dire, jury selection, criminal procedure, covid-19, vicinage clause, peremptory strikes, civil jury trials, wisdom of the crowds, condorcet, arbitration, constitutional law, legal philosophy, originalism, functionalism, democracy

Suggested Citation

Robertson, Christopher T. and Shammas, Michael, The Jury Trial Reinvented (September 21, 2021). TEX. A&M L. REV. (2021 Forthcoming) , Boston Univ. School of Law, Public Law Research Paper No. 21-05, Available at SSRN: https://ssrn.com/abstract=3796292 or http://dx.doi.org/10.2139/ssrn.3796292

Christopher T. Robertson (Contact Author)

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Michael Shammas

Tulane University School of Law ( email )

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