Juries are in crisis. The jury trial exists today unloved, neglected, and largely avoided in legal practice. Procedural barriers and civic apathy have combined to gut one of the central tenets of America’s constitutional structure.
The civil jury trial is dying. In federal courts, less than 1% of civil cases are resolved before a jury. In state courts, the percentage of jury trials is only slightly higher. Lawyers can leave law school, make partner, and become a judge without ever trying a case before a jury. Arbitration, mediation, and settlement dominate litigation practice. Take a look at almost any long form contract (from your smartphone to your rental car agreement) and you (and everyone you know) likely will have signed away the right to a jury trial. Fine print waivers have shifted a system of public justice to a process of private settlements. And, even if you retain the right to sue, you still face daunting odds overcoming legal roadblocks (narrowed pleading and class action rules) and financial realities (lawyers cost more money than most law students can afford). Going to trial is simply not an option for most individuals.
The criminal jury trial is dying. More than 97% of criminal defendants in federal court plead guilty. More than 94% of defendants in state courts plead guilty. Fewer still defend themselves in front of a jury of their peers. As Justice Anthony Kennedy conceded in Lafler v. Cooper, “[C]riminal justice today is for the most part a system of pleas, not a system of trials.” Again, from the principle of public justice in a constitutional protected “public trial,” the result is that defendants no longer have ordinary citizens passing judgment on their guilt.
Jurors are themselves failing the justice system. If the systemic erosion were not bad enough, citizens have stopped showing up for jury duty. “No show” rates for jury service in some jurisdictions range close to 80%. Last year, Philadelphia, Pennsylvania created a “scofflaw court” to adjudicate wayward jurors after almost a third of summoned jurors failed to show up. The right to a jury trial – so important to the Founding generation that Thomas Jefferson mentioned it in the Declaration of Independence and so essential that it made it into the text of the Constitution (Article III), the Sixth Amendment, and the Seventh Amendment – has regularly been ignored by this generation.
This slow death of the jury distorts the constitutional structure, diminishes the role of citizens, and means that you will likely graduate from Harvard Law School and never have the opportunity to stand before a jury like thousands of alumni before you. Here are four reasons why you should care.
- Juries work. Empirical and anecdotal evidence demonstrates that juries tend to reach the correct result. Polls comparing jury verdicts with judge decisions, scholarly research, and the common knowledge of trial lawyers (who keep trusting juries) all point to the same conclusion: juries are good fact-finders. Twelve heads are better than one. Equally important, juries are good fact-finders within a system that takes into account the human element behind the lawsuit. Twelve hearts are also better than one. Common sense judgments based on common sense legal interpretation tends to lead to common sense justice.
- Juries are part of our constitutional identity. It is hard to think of a more uniquely American institution than the jury. Juries have been a part of America before there was an America (the right to a jury trial coming over on those first boats to the Jamestown Colony). Juries place core decision-making power in the hands of a localized, democratic, public institution composed of ordinary citizens. Juries are a daily manifestation of “We the People,” and, thus, a microcosm of democracy. Plainly, the Founders believed that juries were central to a constitutional system. But, this original understanding has only been amplified in the more modern era as Suffragettes and civil rights leaders both claimed the right to serve on a jury as a fundamental expression of political equality. Before and after the Nineteenth Amendment, the League of Women Voters made jury duty a priority equal to the right to vote. Before Brown v. Board of Education, Charles Hamilton Houston and the NAACP-Legal Defense Fund litigated equality in jury service before the Supreme Court. In both cases, the understanding was that jury service was as important a political and civil right as voting. Jury duty was constitution duty and a marker of constitutional identity.
- Juries empower citizens. The jury has always been considered a structural power. Juries grant power to citizens at the expense of judges, legislatures, and prosecutors. As Justice Antonin Scalia stated in Blakely v. Washington, “Under our Constitution, the right to a jury trial is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.” In an era of growing special interests and corporate money influencing state judicial elections, and at a time in which prosecutors have more power than any other figure in the criminal justice system, this reservation of power to citizens matters.
- Jury service improves civic engagement. Studies by researchers at The Jury and Democracy Project show that by merely sitting on a jury through deliberation and unanimous verdict, citizens are more likely to vote in future elections. Of course many people always vote, and some never do, but for citizens who had spotty voting records in the past, deliberating on a jury in criminal cases and most civil cases generated a “civic spark” that encouraged further political and civic involvement outside the courthouse. This research proves that Alexis de Tocqueville was right to conceive of juries as political institutions which help educate, inspire, and teach citizens about democratic responsibilities. After all, in a jury, a citizen is required to become a constitutional actor and do the hard work of self-government. Once citizens do this work successfully in one context, it appears that these same citizens become engaged to do it in other civic spaces.
So if juries work, define constitutional identity, empower citizens, and improve civic engagement how can we reverse the slide of jury trials in America? Here are two concrete steps to save the jury trial.
First, join or contribute to one of the new education projects to stop the decline of the civil jury. This fall the NYU Law School launched a Civil Jury Project headed by famed trial lawyer Steve Susman to educate citizens about the civil jury trial. The project’s goal is to support research and studies on why the civil jury matters. The American Board of Trial Advocates (ABOTA) has created the “Save Our Juries.org” project. ABOTA is an organization devoted to saving the civil jury trial, and holds summer trainings at Harvard Law School. Both organizations could use talented, smart legal thinkers about the problems of juries in America. Of course, at Harvard Law School you also have several of the preeminent jury experts in America. By researching, writing, and thinking about ways to save the jury you can contribute to its rebirth.
Second, take up the fight against fine print clauses in those contracts all around you. How many waiver clauses exist in your daily life? Try to challenge them. Ask about them. Spread the word about how this principle of waiving constitutional rights in largely non-negotiable contracts is undermining the jury.
In the end, constitutional rights are only as strong as constitutional citizens. The jury trial is our constitutional inheritance. Let’s protect it.
Andrew Guthrie Ferguson is author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press). He is a Professor of Law at the UDC David A. Clarke School of Law and frequent commentator about jury issues.