I have written this FAQ in order to answer common arguments given by US courts to justify their evil practice of the doctrine of jury duty. I support the concept of trial by jury as presented to us historically, but oppose its co-option by our unethical justice system.
Argument #1: Our system of trial by jury is the cornerstone of freedom.
Answer: To understand why this statement is false, you must understand the importance of jury nullification, a right which has been taken away from us in recent times. Jury nullification is the right of jurors to judge the law as well as the facts. Under such a principle, if jurors believe that the law used to put someone on trial is unjust, they have the right (and one might argue, the moral duty) to declare that person innocent.
The Magna Carta is the basis of the English judicial system and the basis for the trial by jury as source of freedom. It proposed jury nullification as a necessary counter-balance to the power of kings to create legislation at their leisure.
FOR more than six hundred years – that is, since Magna Carta, in 1215 – there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Lysander Spooner, An Essay on the Trial by Jury, chapter 1 (italics his)
Notification to juries of their nullification rights was ended in 1895 by the Supreme Court to pacify corporations, which at the time were losing cases against union leaders because jurors kept nullifying anti-striking laws. Since then, judges have become openly hostile to nullification, as they have been at various times in the past, and our right to jury nullification is openly attacked both by the justice system and by the media.
Argument #2: Jury nullification is an attack against the rule of law.
Answer: That’s exactly what it was made for. The whole point of jury nullification is to attack the rule of law, because people should not be duty-bound to uphold evil laws. This is not some theoretical issue: it has arisen in all eras, because laws are always made for the interests of the ruling class. Some examples where jury nullification served to take down or dampen the effect of evil laws include the 1850 Fugitive Slave Law, laws against striking, the Prohibition, the lawsuits against Vietnam war protesters, and the prosecution of marijuana.
I was summoned for jury duty some years ago, and during voir dire, the attorney asked me whether I could obey the judge’s instructions. I answered, “It all depends upon what those instructions are.” Irritatingly, the judge asked me to explain myself. I explained that if I were on a jury back in the 1850s, and a person was on trial for violating the Fugitive Slave Act by assisting a runaway slave, I would vote for acquittal regardless of the judge’s instructions. The reason is that slavery is unjust and any law supporting it is unjust. Needless to say, I was dismissed from jury duty.
Walter Williams, July 11th, 2007
If the government dictate the standard of trial, it of course dictates the results of the trial. And such a trial is no trial by the country, but only a trial by the government; and in it the government determines what are its own powers over the people, instead of the people’s determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.
The jury are also to judge whether the laws are rightly expounded to them by the court. Unless they judge on this point, they do nothing to protect their liberties against the oppressions that are capable of being practiced under cover of a corrupt exposition of the laws. If the judiciary can authoritatively dictate to a jury any exposition of the law, they can dictate to them the law itself, and such laws as they please; because laws are, in practice, one thing or another, according as they are expounded.
Lysander Spooner, An Essay on the Trial by Jury, chapter 1
Argument #3: Why can’t you just accept what the law says and not judge it? What’s so hard about that?
Answer: Actually, it’s not that it’s hard as much as it is literally logically impossible. One cannot “not judge” the law. If we accept a law, it is because we have previously judged it worthy of being accepted. This necessarily happened because of some inner standard. The law didn’t just appear in our heads from nothing. We read it or heard it from somewhere, and we accepted or rejected it on some standard that already existed in our heads. Therefore everyone “judges the law” whether they like it or not.
Even if we posit that the juror must simply obey what they judge says, there must first be acceptance of this obedience to the judge, and this acceptance also has to come from some inner standard.
Argument #4: We are all innocent until proven guilty. This is a great principle.
Answer: I agree that this is a great principle, if it actually worked that way. But that’s now how reality works. The media has a powerful influence on our evaluation of someone as innocent or guilty. Most of the time, merely being named as a defendant is enough to create a general belief in someone’s guilt. Furthermore, received beliefs will make many people presume that someone is guilty regardless of the facts, either because of the nature of the case, because of the defendant’s race or gender, or other factors.
So it is more accurate to say that, while technically we are all supposed to be deemed innocent until proven guilty, a defendant actually start under a certain degree of presumption of guilt, depending on the accusation and the identity of the defendant. We know for a fact that being of the wrong race can condemn someone to death, no matter how much we’d like to ignore it.
Argument #5: An adversarial justice system is the most efficient way to arrive at the truth of a matter.
Answer: What a ridiculous belief! In no other area of life do we base our evaluation of the truth on some kind of tug-of-war between two distorted, extreme positions on either side of an issue. Any truth that comes out of such a process will come out despite the adversarial process, not because of it.
In other areas, this kind of adversarial process is seen as hopelessly divorced from the truth. In science, for instance, we consider partisan research and studies to be innately suspicious. There, we acknowledge that any search for truth has to start from reality-based evidence, not on misleading testimonies and distorted half-truths.
In our personal life, we don’t use adversarial processes to determine some truth. We weigh the credible evidence available to us, and seek out more evidence whenever we feel we don’t have enough. We don’t go to the most distorted sources on both sides and try to balance their half-truths.
Beyond the fundamental absurdity of an adversarial process used to determine truth, there are also systemic pressures which derive from that process and distort the truth even more. One example is the fact that people who are poor are more likely to be found guilty than people who can afford the best lawyers. This is a direct result of the adversarial process. The only way to abolish this injustice, and others of its kind, is to abolish the adversarial process.
The inquisitorial trial (no relation to the Inquisition), used in parts of Europe (especially France and Germany), Africa, South America and Asia, is the main alternative to the adversarial trial, and it offers many advantages over the latter. But the most relevant advantage of inquisitorial trials is that, unlike in our system, there is much less incentive to distort the truth. Lawyers do not make a case; rather, they have to provide the evidence they are asked for. They generally do not call witnesses or ask them questions, but they may provide their own questions or suggest lines of investigation. The main burden of fact-finding is left to the third parties, which leads to a lessened distortion of the truth.
University of North Carolina researchers John Thibaut and Laurens Walker nevertheless made extensive comparisons of the two systems [of adversarial trials and inquisitorial trials]. They concluded that an autocratic procedure which delegates both process and decision control to a disinterested third party (i.e. a model mirrored in the inquisitorial system) is optimal for determining the truth. Evidence is presented more accurately by disinterested third parties than by adversarial processes. Such a procedure “increases the likelihood of obtaining the relevant information, reduces the strain of assimilating and tracking information, and minimizes the risk of failing to reach the correct solution.”
Franklin Strier, Making Jury Trials More Truthful, chapter 3.
Argument #6: Ordinary people are needed to “sniff out” when people tell the truth and when they lie.
A fundamental premise of our criminal trial system is that the jury is the lie detector.
United States v. Scheffer, 1997
Jurors are repeatedly told that they are there to “smell out” truth from fiction just by looking at the witnesses and listening to their testimonies. But it is well known that people are notoriously bad at doing that very thing, and will usually go along with their pre-existing biases. Furthermore, it is absurd to assume that ordinary people, randomly selected from a population, are more likely to be good at detecting lies than people who are trained for that purpose.
Obviously, ordinary people will tend to believe authority figures, disbelieve people who contradict authority figures, and will tend to disbelieve people belonging to groups they think are untrustworthy. This is not a statement that people do this consciously or lie about it, it’s just simple psychology. Despite what US state governments seem to believe, ordinary people do not have some magical ability to detect lies, and I have seen no scientific study that stated this was true (studies, however, do demonstrate that people judge of truth or falsity on the basis of group affiliation, and on the basis of the nature of the communication). There are ways to train people to detect lies better, but our justice system prohibits people from having any sort of context whatsoever about their job as jurors, so it is unlikely that such training would ever be allowed.
So to add insult to injury, we are asked to judge things we cannot possibly know about (people telling the truth or lying, the validity of scientific evidence presented) and asked to not judge the only thing we really can know about (the difference between right and wrong).
The supreme insult is that according to studies, the only group of people who are actually good at detecting lies are prisoners, and ex-prisoners are not allowed to serve on juries. This has got to be one of the most hilarious absurdities about a system that is already full of absurdities.
Argument 7: To take responsibility for the lives of those who are delivered to the courts is an important civic duty.
Answer: There are rather fundamental moral issues with assuming partial control over another individual’s future, not only because of the lack of compassion and value-arrogance that it implies, but also because it puts people in jeopardy within a punishment-based institution which breaks people and hurts society. In the best of cases, it is a necessary evil, but in our current system, which subjects those found guilty to imprisonment (which is nothing more than an ordered form of slave labor taking place within a cruel and humiliating environment) and even death, it is a great and unnecessary evil. We should not feel good about performing duties for a system which generates social evils and turns us into worse people.
Argument 8: “If everyone tried to dodge jury duty, then what…?”
Answer: The first question you need to ask yourself is, why would “everyone” try to dodge jury duty? Certainly there are many reasons to do so (most of them legitimate), but if people had confidence in our justice system and really did believe that it was necessary for our freedom, then it wouldn’t be the case that “everyone” would try to dodge it! So the answer to the hypothetical itself is: if everyone tried to dodge jury duty, then that would betray such a lack of confidence in the justice system itself that we should be happy to see it sink.
The same thing is true for our current justice system; we should be happy to see it sink rather than continue the pastiche of justice and juries that it perpetrates on our society on a daily basis. I would rather see it disappear than to see people continue to be threatened into fulfilling jury duty for an evil, authoritarian justice system.
Argument 9: Random selection ensures a representative jury.
Answer: False. Simple statistics will tell you that a small random selection does not, and cannot, guarantee a representative sample. It may be that the random selection will return a representative sample at any given time. It may even be the case that it will give you a representative sample most of the time. But it can also be the case that it will not give you a representative sample at all. There is nothing in a random selection process that ensures anything about the composition of the resulting sample, apart from the fact that all the individuals selected are part of the group you’ve picked them from.
To show this, let’s use a simple mathematical example. Suppose there is a trial on the issue of abortion, and the general public is divided 50-50 on whether abortion is ethically acceptable or ethically unacceptable. Therefore, a representative sample would be one where the individuals are roughly equally divided on the issue. The probability of a random sample of 12 individuals giving us from 8 to 12 individuals who are for abortion, which would definitely be nowhere near roughly equal (in the best case, giving a 2 to 1 advantage to one side), is 3.26% (1/4096 possibility for any given combination, times 13345 possible combinations leading to these distributions). The same applies for those who are against abortion. The total percentage is therefore 6.52%. This may not seem like a lot, but assuming that a federal court hears 5000 cases a year, for example, that would mean 326 cases are most certainly not being heard by a representative sample on the issue. This percentage would be even worse in cases where public opinion leans more on one side.
Argument 10: Selecting people from the general population, including those who do not want to be on juries, is the only way to ensure a representative sample of the population.
Answer: It does not matter what rationalization you propose to support the use of threats and coercion. Threatening someone for not participating in a system they may or may not agree with is wrong, period.
Beyond that fact, there are many ways in which the justice system does not even try to “ensure a representative sample.” For one thing, in most states, only people who have a driver’s license or voting registration are eligible. This is already a strong selection for people with the money to buy a car and car insurance, or who have strong political opinions.
Furthermore, the jury selection process is known to exclude people who demonstrate intelligence or strong principles. Therefore there is a strong selection for stupid or unprincipled people.
In fact, there is a strong emphasis all throughout this process that decisions taken while on a jury must be absolutely absent of any context whatsoever (not allowed to know about the case, not allowed to know anyone involved, not allowed to have any strong pre-existing opinions, not allowed to discuss the case outside of the jury, not allowed to know anything but that which is presented). This is as misguided as positing that our actions should be “value-neutral.” Nothing is value-neutral and nothing can be divorced from context, no matter how much we want it to be.
What happens is that some people lie under oath, or simply refuse to believe that they are partial observers, in order to be accepted on a jury. Nothing more. In real life, our brain is not going to magically stop making relations between things or events because we are on a jury. That’s simply not how it works.
Bonus question: Are we created equal?
The Declaration of Independence states that “all men are created equal.” Use of the word “created” aside (replace it with “born” if you prefer), there are only two possibilities here: either we agree with the statement, or we don’t.
If we disagree with the statement, then there are some people who are born innately superior to everyone else. If that’s true, then it seems to me that we’re merely playing court and that there’s little point in talking about justice, which is predicated on the context that disputes should be resolved fairly. The only reasonable option is to let the superior people do whatever they want to the rest of us.
If we agree with the statement, then it must be the case that any structure or law which treats some human beings as superior to others, who give a certain right to some people but not to others, is automatically false. If certain people have a right to live somewhere, then everyone has that right, or no one does. If certain people can get away with murder without being put on trial, then everyone has that right, or no one does. If certain people have a right to escape responsibility for their actions by hiding behind a make-believe “legal person,” then everyone has that right, or no one does. All of these conclusions follow from the premise.
In either case, our justice system is invalid. If all men are not created equal, then it is entirely unnecessary. If all men are created equal, then it is necessarily injustice operating under the cloak of justice, making it the enemy of all men.
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FYI, a much respected awarded Australian who also has scrutinized and continues to expose the ills of the inherited adversarial legal and court system here, Evan Whitton, legal historian:
You may find his books of interest. Pardon me if you already know of Evan’s work.
No, I’ve never heard of this fellow. I will look his works over with interest.
Re Argument #9, in the U.S., the voire dire process and pre-emptory challenges further insure that the jurors selected are anything but randomly selected. If you look homeless (let alone if you are homeless) your chances of being selected to be on a jury are pretty much zero. Actually anyone who sticks out in the slightest is often not selected. I speak from 30+ years experience.
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