> In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Left me wondering where the right to unanimous juries comes from, since it doesn't seem to be mentioned in the actual amendment, and the article doesn't really tell me. Even SCOTUS blog, unless I missed it, doesn't say.
Thankfully, there's Wikipedia[1]:
> Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to "a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted." Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.
The next paragraph was a bit odd in light of my question:
> When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by "historical accident," and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury.
Sure, but what prevents us from calling unanimity a historical accident as well? (Still, personally, I think having to have 12 — or maybe just 6 — people come to agreement on a conviction is for the better. I'd rather let a few guilty people go free than convict an innocent one.)
Historical precedent rather then accident I would say.
There is a quote in the court's opinion that using historical precedent "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process".
I agree with you, beyond a reasonable doubt should mean all jurors agree.
At the risk of being a bit technical, (as law tends to be) I think reasonable doubt is called the "standard of evidence". Its the phrase "jury trial" that the court found to require unanimous verdicts.
Criminal jury trials have the unanimity requirement. Also, criminal convictions are held the "beyond a reasonable doubt" standard, though there may be collateral actions, or procedural determinations in a criminal trial that have a different standard of evidence.
Otherwise, US States have a lot of flexibility in how they handle non-criminal cases.
"Beyond reasonable doubt" is a standard of evidence, it doesn't have anything to do with whether the jury needs to be unanimous. They need to be unanimous regardless of the standard of evidence, even for "preponderance of the evidence" (which means that the jury finds it more likely than not -- that the evidence "tips the scale"). If the jury is not unanimous they need to deliberate more until they are unanimous (if they deadlock then a new jury is called and the whole case starts again).
The two concepts seem related, at least if we assume that jurors are reasonable. A single reasonable juror having a doubt indicates that the verdict is not beyond reasonable doubt. I agree that unanimity is not as obvious when the standard is "preponderance".
I guess I should've said that it's a separate condition, rather than being unrelated. The standard each juror needs to consider when making their own determination is "beyond reasonable doubt" (or "preponderance" or "clear and convincing"), and in order for the verdict to be held by the jury it needs to be unanimous.
I think the assumption that jurors are invariably reasonable, as opposed to on average reasonable is a pretty heroic assumption not well supported by the history of trial by jury though.
A jury selection process lets both sides of a case interview jurors and agree on impartial and reasonable jurors.
Estimates of wrongful conviction are between .13%-5% (wikipedia, miscarriage of justice), however the main thing that trial by jury affords is transparency and perception of fairness, since you are convicted by your peers and not some politician with questionable incentives.
> Sure, but what prevents us from calling unanimity a historical accident as well?
On the fourth page of Gorsuch's opinion he summarizes the basic argument: "Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption--whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward--the answer is unmistakable. A jury must reach a unanimous verdict in order to convict."
I think your observation is correct--the logic of Williams v. Florida contradicts the logic of this new opinion. Before Williams v. Florida, and as that opinion honestly summarizes, 12 members was always required, solely based on historical practice. So Williams opposed the fundamental reasoning of historical precedent and overturned actual Supreme Court precedent; it looked to the fundamental purpose of the jury trial and whether the size was consistent with that purpose. For Ramos (or at least Gorsuch), consistent historical practice is the most important and even dispositive evidence of how a jury verdict must be composed, regardless of whether it was accidental rather than deliberate, and regardless of whether a non-unanimous verdict achieves the purpose; it seems to return to the pre-Williams reasoning. To the extent purpose mattered, it was the purpose of the deviations from unanimity, and that purpose was preserving white supremacy.
I'm not sure what you meant by your last sentence. Do you mean the purpose of the unanimous jury was to preserve white supremacy? Or do you mean that the purpose of Williams' argument against the unanimous jury was to preserve white supremacy?
Another way to look at it might be to ask why a jury is even needed. Why not just two jurors? If a simple majority is all it takes then why does it matter how many jurors there are so long as it is more than one. And if it isn't a simple majority then unanimity is the only resonable option. Whereas judges deliberate,issue opinions and sentences, jurors have no such mandate.
A second way to look at it would be to consider that the accused has presumptiom of innocence,therefore the juror's purpose is to remove that presumption. If there is no unanimity then you're saying it is better to punish the guilty even if some innocents get punished in the process. If jurors represent society then one juror's opinion in a 10 person jury represents 10% of the population.
When discussing common law, the answer invariably comes down to “tradition”.
The English common law, which we inherited our own traditions from and much of which is still applicable today, is less a “law” in the sense of a set of decrees from a King or statutes passed by a parliamentary body and more a long line of traditions and community standards that change slightly over time according to a few principles, with the facts and circumstances of the time used to inform the judgement and sentencing.
Without a legislative body, you could go on evolving the traditions over time to cover any number of new and unique circumstances simply by using the existing body of law as a guideline.
So why 12 Jurors and why must they be unanimous? Because it is tradition, and the principle of stare decisis has kept it that way for a very long time. Can traditions change? Yes, but stare decisis makes it unlikely that any sort of arbitrary changes will be made and upheld. Think of it as the legal equivalent of inertia. The law stays the same given the same facts and circumstances unless changed by an outside force, usually a statute in modern democracies with common law legal systems.
The upshot of all of this is to make the practice of law and process of legal proceedings more predictable and arbitration less arbitrary if you’ve done your homework and can tie your case to a previous case, and it doesn’t even necessarily have to be a case from the same jurisdiction if it’s from the same legal tradition and not incompatible with the existing body of law in the jurisdiction the case is within. In contrast, whenever the legislature passes a new Bill and it’s signed into law, you have to study how this will affect new cases going forward rather than simply being able to rely on past precedent. This allows more instantaneous changes to new circumstances but also allows more arbitrary laws to be passed whose effects on people and commerce are not well understood until they are used in litigation.
> And if it isn't a simple majority then unanimity is the only reasonable option
That's not how the constitution works - supermajorities (55%, 2/3, 75%) exist in many areas around the world, so while majority and unanimity may be reasonable options, it's arguable that other points may also be reasonable.
When it comes to voting on laws or elections yes, but criminal conviction not so much. It's not an opinion of what you think is better but certainty of guilt that you are voting on.
> And if it isn't a simple majority then unanimity is the only resonable option.
I don't see why it's the only reasonable option. Consider if we discover that 90% agreement has the exact same false conviction rate, but a much better true conviction rate. That would justify a 90% majority over unanimity.
Maybe unanimity is maybe the only reasonable option when you don't have any other informatoin, but that bar can move once you have a better understanding of the phenomenon.
I think this is one of those situations where statistics can't be applied because if you can't guarantee a 0% false positive rate, even one person being convicted wrongly can't be tolerated. It's not a question of which statistical measurement is better but which approach society is willig to accept.
> I think this is one of those situations where statistics can't be applied because if you can't guarantee a 0% false positive rate, even one person being convicted wrongly can't be tolerated.
You can't guarantee a 0% false conviction rate even when requiring unanimity. That's why I said if the false conviction rate was the same, but the true conviction rate was better, clearly that's a better scenario.
You can't and you won't try to. You leave it to the quality of jurors in the locality,allow maximim number of jurors(practically limited) and unanimity. False conviction rate at 11/12 guilty verdict can be 90% in NYC and 40% in rural alabama for example and it can change ovet time based on population change. Someone needs to keep track of the stats, their methods will need oversight and what happens when bad politicians want high conviction rates, influence the stats measurement? Will be gerrymandering all over again.
Issue is that we don't have these numbers. People are consistently proven to have been innocent after serving decades in prison for crimes they did not commit but were convicted of. In addition, as only 2 states in the US allowed for a majority conviction, the data set would necessarily be small. Compounding that is that we essentially have no real way to determine who was guilty but found innocent as once you are found innocent that's generally the end of the road. The primary concern in this situation should be increasing the difficulty of convicting an innocent person. The guilty going free should be a secondary matter.
So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
We don't have the numbers showing the number of guilty people found innocent. We also don't have an accurate count of the number of innocent people found guilty, only that it has happened consistently. I explain this in the rest of the post.
My argument does not jive only if you are looking for flaw and determined to find it even if it is only semantics.
It's certainly possible to know something happens without having exact numbers e.g. we know people consistently die from COVID but we won't have a truly solid number for the death rate until COVID dies down and we do antibody testing. And that's now! Think of how uncertain we were about the death rate 2 months ago yet we were still certain people were dying from it.
> In addition, as only 2 states in the US allowed for a majority conviction, the data set would necessarily be small
Small data set does not necessarily entail it's not statistically significant.
> So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
"Won't exist" is a pretty strong claim. I posited but one example where the original claim was false, but I can probably come up with dozens of other scenarios where simple majority or unanimity are clearly inferior as the only two options.
There's no way to know what the false conviction rate is. We can only know what the proven false conviction rate is. There's presumably always some percentage of innocent people who can't find an alibi or other evidence to clear themselves of a crime they did not commit.
Maybe, assuming that the better true conviction rate is a more just outcome. The goal here is justice. There are crimes where a conviction could be worse than the crime. I.e. abused child accused of murdering abuser. Giving any single juror essentially the power to veto a conviction is a very good thing for justice and sets a very high standard for police & prosecution.
The Supreme Court decided a long time ago that the Constitution said whatever the justices thought it should say. The rest of the government went along with this concept. Overall, I think it's been a positive thing as the House of Representatives, then Senate, and then Presidency sequentially fell into complete discredit.
No, but empirically it's what the justices have been using for over 50 years. Decisions like Wickard v. Filburn and Obergefell don't just come from "living constitutionalism" -- they are just completely made up out of whole cloth.
And in India (which has a British created judiciary), we have totally done away with the jury system as "the Law Commission of India termed the jury system a “failure” and recommended its abolition" (https://www.thehindu.com/features/magazine/Judged-by-twelve/...).
Is it still the norm is England to require unanimous consent for criminal convictions? If not, then what was the reasoning for changing it and how is it different from the original historical reasoning for unanimous conviction?
Yes, the default position requires a unanimous verdict from the jury — all 12 of them, but the court may accept a majority verdict no less than 2 hours and 10 minutes after the jury retires.
The unanimous requirement was changed by the Criminal Justice Act 1967[1] (the relevant section since repealed) for criminal proceedings and the Jury Act 1974[2] for civil proceedings (incorporating criminal proceedings as well).
It's unclear why the number was originally set at 12 – historical research suggests the Danes set this number when they conquered parts of northern England and subsequent Anglo-Saxon monarchs simply continued it. Perhaps 12 was simply an appealing number, or maybe there were political considerations, etc. — it's impossible to know.
As for why Parliament allowed juries to come to a non-unaninmous verdict in specific circumstances, it appears to have been influenced by the Morris Committee Report of 1965 according to Hansard[3].
Additionally (as mentioned in Hansard above), the Scottish legal system have had majority verdicts for juries for a long time prior to the change to England and Wales in 1967 so that may have had some influence on the Government of the day implementing a change to the jury system.
Part of their concern was also down to "jury nobbling" - they felt that if one or two people were "nobbled", it would be fair to allow the remaining 10 to come to a verdict effectively disregarding the nobbled pair (this is also raised in the Hansard report above).
I'm confused at the article. What part of the 6th amendment ("In all criminal prosecutions...") distinguishes "non-serious" crimes from "serious crimes"?
Also, does anyone know where hung juries fit into this? You would think that you're not-guilty until you're proven guilty, so what is this weird 3rd-state of "not guilty and also not not-guilty" based on in the 6th amendment?
> I'm confused at the article. What part of the 6th amendment ("In all criminal prosecutions...") distinguishes "non-serious" crimes from "serious crimes"?
They may be referring to felonies, but yeah the wording seems strange to me as well.
Do you know why even felonies would be distinguished here, even if that's what they meant? The amendment literally says "in all criminal prosecutions"... how does "all" turn into "some"?
The Supreme Court tends to issue narrow opinions only on the case or controversy (Article III, Section 2) before it. The Court does not decide on matters not before it, so if the issue before it was about "serious crimes". The case was originally brought against Louisiana which had laws that distinguished between different kinds of crimes. Quoting the Fourth Circuit's decision in Ramos v. Louisiana:
"Additionally, La. C.Cr.P. art. 782(A) provides in part that “[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”
If the Court said nothing of other ways of classifying crimes, then that is all that means. It doesn't mean that it's constitutional, it's just that the court doesn't rule on cases and controversies that are not before it.
There are 100s of years of common law and law making trying to sort these kind of questions out. This is what appellate courts and legislatures are for. Written laws, no matter how detailed or precise, will have gaps that the common law fills in. Later, in some cases, legislatures update the law to conform with common law or to repeal/override common law.
There is a lot case law looking at which crimes are considered serious. In some cases, crimes explicitly considered non-serious in one jurisdiction may be considered serious in other jurisdictions.
The amendment doesn’t, but this particular opinion does. The court simply wasn’t asked about lesser crimes, and so didn’t consider them or rule about them. If it ever comes up, I’m sure this case will still be strong precedent.
As far as hung juries goes, the unaninmity cuts both ways: the entire jury has to agree on acquital for that to be the trial outcome as well. In the case of a hung jury, the whole process failed to come to a conclusion, so everything is the same as if the trial had never occurred: the defendant is still charged and unconvicted, and still has the right to a speedy trial. Because the first trial was voided entirely, double-jeopardy doesn’t apply.
Re: hung juries, I do understand what happens; I'm saying it just doesn't make sense to me. The constitution says:
"... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; .."
On the face of it it seems like complete nonsense to say that you're not placed in jeopardy of life or limb until after the verdict is delivered. Then why were you sitting in that seat being tried for a serious crime? Were you just chopped liver until the jury delivered their verdict? And suddenly when they acquit you then it turns out your life were(/are) was in jeopardy after all? I feel like I must be missing something...
As for the opinion, I guess I can understand that if that's the case, but I'd be a little bit surprised if they got a case about non-serious crimes and went "just kidding, the same reasoning applies here too".
From a legal point of view it is no different that bribing a member of the jury. You were never in actual jeopardy and the trial is void.
You are correct that one could argue that a hung jury is equivalent to acquittal but that isn't current caselaw.
It does make me curious how often the state re-tries someone after a hung jury. My guess is there is a large fall-off there. I'm also curious how many times the state can retry the case attempting to reach a verdict. I'm not sure if there is any caselaw covering that.
This is getting outside my knowledge as a curious amateur, but I believe that the legal system considers the formal charge to be the manifestation of being “put in danger of life or limb,” and the justice system has a duty to resolve that fairly and expeditiously one way or the other. In a sense, the second trial after a mistrial is really a continuation of the first rather than a wholly new proceeding.
> I’d be a little bit surprised if they got a case about non-serious crimes and went “just kidding, the same reasoning applies here too”.
I wouldn’t be surprised at all, except at such a case making it all the way to the top. A lot of research effort goes into drafting these judgements, because they are usually quite long-lived. Any material relating specifically to the treatment of lesser crimes was likely ignored during the initial phases because it was out-of-scope.
It’s not just the outcome, but also the reasoning that sets precedent. Any appellate judge is free to draw parallels between the facts here and the facts of the case they are adjudicating, especially if this case is cited by one of the parties (presumably the defence). It’s then the job of the prosecution to describe why this ruling shouldn’t apply, which feels like an extremely hard task given the reasoning presented.
Many constitutional rights have qualifications, and "the law" is both statutory and based on case law. You don't have a constitutional right to a trial by a jury of your peers for non-serious crimes. A serious offense is generally one with a potential penalty of more than 6 months in jail. Baldwin v New York is one case where this was tested.
> The decision was widely expected and will have limited impact nationwide, as the only two states that have allowed split jury convictions in recent years are Louisiana and Oregon. Those two states could now face more than a thousand requests for retrials, according to documents they submitted to the justices.
Beyond reasonable doubt is one of several standards of evidence (along with "preponderance of the evidence" and "clear and convincing evidence"), but this is about whether the jury has to be unanimous in their decision that the standard has been met. In other words, what happens if 11 jurors find you guilty beyond reasonable doubt but 1 juror disagrees.
It seems like the parent commenter is unhappy that the Supreme Court ruled to end a state practice, likely one that they supported, even though such “interference” is explicitly spelled out in the Constitution.
I express my puzzlement, because I would love the parent to come back and explain.
I would bet that the principle the parent embraces is not "states have a right to exercise autonomy" but rather "states have a right to exercise autonomy on those things I agree with".
You know, like when people advocate for states' rights, except when a state decides to do something like narrow the right to handguns, or environmental regulations, or something like that.
I thought that we agreed as a country that things guaranteed in the Constitution applied regardless of what state.
Defacto, it used to be the case that states had the ability to select their own rules regarding juries. Some states required unanimous verdicts and some did not.
Now, it is likely the case that defacto states do not have that ability. Since America broadly follows rule of law, I think it is highly likely that this decision will be enforced.
According to the supreme court, it was never legally the case that the states had that right, and the states will have to decide how to respond with respect to the incorrectly convicted people. But many people were put in prison on the basis of majority verdicts and this decision doesn't give them their time served back - it only changes the future. So the op is right to consider that something has changed and states are likely to be unable to do something that they used to do.
It is surely not a hill I would want to die on, and I surely do not think a state should have a right to preserve white supremacy.[] It seems we all knew what the right to jury trial meant, and conservatives have been arguing for the court to consider the originalist meaning.
[] I don't think a majority verdict necessarily needs to have any relationship with white supremacy, and I'm aware that other countries have found other paths. I also don't think procedurally valid court cases need to have unanimity. But if you sign up for a constitution that guarantees convicts a jury trial and you demand conservative interpretations what outcome do you really expect?
In all aspects of life unanimity is an excellent tool for making decisions. Abstention (in lieu of outright dissent) helps a lot too. Learning to negotiate in a non-adversarial way is an undervalued skill.
Slight more contentious is that it seems not unreasonable to expect unanimity from the Supreme Court itself.
Not sure about that: unanimity means that anyone can hold hostage the whole process and make arbitrary demands in exchange for their vote, so it really only works when everyone can be trusted to act in good faith or when it doesn't matter if the process is indefinitely blocked.
That’s a good point. For me, situations with a bad faith actor are edge cases and there are ways to remove bad actors from the decision making process that are separate to the decision making process itself.
Not really refuting your point, and definitely thinking about it in specific contexts. For example a consistent bad faith actor on a team at work can expect to eventually be removed from the team, and avoiding hiring these people (or bringing them into decision making processes) is one of the goals of a good hiring process. It’s usually framed as “culture fit”, to drop another euphemism.
I think the opposite - in most aspects unanimity would fail spectacularly. First, it would be incredibly easy to abuse intentionally. Second, it would put everyone at mercy of the one inflexible person totally convinced he is always right.
> Learning to negotiate in a non-adversarial way is an undervalued skill.
Absolutely. But another important systematically undertaught skill is how to operate when facing bad actors, narcissistic and such. These people destroy teams and institutions, precisely because most people dont know how to deal with them and most advice about good communication pretends they dont exist.
>These people destroy teams and institutions, precisely because most people don't know how to deal with them and most advice about good communication pretends they don't exist.
Aye. Do you(or anyone) have any resources/reading suggestions on how to be effective with this category of interaction? Particularly when it is coming from someone in a position of relative power? Another variant that seems distinct from straight narcissism—although it may be related or just a different manifestation—are people who, for lack of a more graceful way of saying it, only hear what they want to hear.
I am not sure it's a great way to go in this case. In Denmark for instance, there is no unanimous requirement for conviction, and having been on juries here, it would absolutely result in a lot of people going free. I have absolutely seen cases where one person is either on some principle or just convinced they are right refuse to view the person that is charged as guilty. I am not sure that really should prevent convinction.
But i guess part of this also relies on the make up of the jury. If people in general is more likely to convict easier, it might make more sense to adjust that by requiring them to unanimous, in the reverse situation you might not want to require that because it becomes almost impossible to convict anyone.
Norway abandoned juries recently, and in a perfect example of why the last case decided by jury involved a case where the jury provably returned a verdict that was logically impossible (two questions that were dependent in such a way that one of the four combinations was impossible if they followed instructions; the jury returned the one impossible combination)
The "new" system is a variation of what has long been used for non-jury cases, with some variation: A panel of judges where a minority are professional, legally trained judges and the majority are "lay judges" drawn from effectively the same pool as the juries. The total number of judges on the panel depends on the type of case and potential length of a sentence. They all deliberate together.
The old saying (hence "men") was "Better a 100 guilty men go free than one innocent man is convicted". One reason unanimity is a long standing principle.
Having been on a jury, I thought requiring a unanimous decision for a conviction was how juries operated in the US in general. I'm surprised to learn that there were states that were an exception. I'm not surprised to learn that said exceptions have racist origins and use. There's been a lot of bullshit on the books put there for racist reasons.
I'd thought said BS was largely gone from the books. Well, regardless how how much BS still remains or doesn't, I'll happily take one more bit of it being removed.
>> I'd thought said BS was largely gone from the books.
It basically was by the time this case was argued. But there was sufficient interest in how to rule on it (see Thomas' concurrence with the judgement only, and Kagan's dissent). The 6-3 split was pretty fractured as evidence for why they wanted to hear it. It is no surprise Gorsuch wrote the court's opinion; he has a particular disdain for things that impede civil liberties.
Basically, there are two statues (Louisiana & Oregon) which do not require unanimous juries. It seems like this was done to prevent a few dissenters from preventing convictions.
The split in the court is because some justices are worried about undoing something that has been used for more than a hundred years and upsetting a ton of cases.
Louisiana got rid of their non-unanimous jury law a couple of years ago. Oregon was the last state with such laws as of yesterday's Supreme Court opinion.
In England, unanimous juries were relaxed in 1967 to allow majority ones (i.e. 10/12). The reason for this was because there was a number of jury intimidation cases. A criminal conspiracy need to get to one juror to make the whole case fall apart.
Was this consideration discussed by the supreme court in the USA?
There shouldn't be a difference, but in the real world humans are not perfect and we all come with our own biases that we can't always overcome.
People should be judged by a fair impartial jury. I have no idea how to ensure this. Race is one known factor. All white or all black juries are somewhat likely to be partial in the same way and thus not give a true result (as if that is possible) so you want a mix that reflects the community, and also has enough that the one other person isn't intimidated. Easy to say, hard to do.
They should not be, but historically and continuing into this day, there are some areas including entire states where there is a clear bias against minorities. This means the defendant is potentially at a disadvantage before the first prosecutor has spoken. Placing a minority on the jury of a minority defendant does not guarantee an acquittal in anyway but it does help to mitigate any ingrained bias the jury may have.
In addition, we are supposed to be judged by a jury of our peers. Considering minorities make up ~40% of the population I don't think its a stretch to say at least 20+% of the jurors should be a minority.
The bar to convict should be high and this helps to ensure that. Rather 10 guilty men go free than one innocent man go to jail.
There's a racial difference between jurors in my mind because there's a racial difference between jurors in reality lol. Pretending otherwise is foolish, lawyers literally pick their juries based on this obvious fact.
"Why should black people be judged by black people only?" Is a racist strawman argument. I am saying black people should not be judged by white people exclusively, as can happy if every jury is majority white.
I don’t know of any present day statistics, but it looks like it was a motivating factor in moving away from unanimous convictions, at least in the case of Louisiana.
That is one of the reasons not to have professional juries (I don't think England ever had them but I see it come up once in a while). If you have a random jury you don't have enough time to gather dirt on everyone so you don't really know how to intimidate which ever one you happen to get. With a professional jury (or judge but there are other reasons to have professional judges) you know who to look at long before you are caught and so you can figure out what blackmail might work and have it ready when you need it.
Juries are often sequestered meaning that by the time you figure out what to try you can't get at them.
Of course none of the above is perfect. You can get around them if you put in enough effort. Which is why it is a tradeoff as others have said.
To my knowledge, England has never had "professional juries", no. What would those be? People who had a career serving on a jury?
We do, however, have the ability to dispense with a jury entirely and have a single judge decide on the case. I suppose that's not much better: a single professional jury of one versus one of twelve.
No, because not all jurors are equally easy to intimidate, so you should expect effort to be superlinear depending on the distribution, and intimidation itself is not a risk free crime.
This sounds like a feature, not a bug. The impact of letting a criminal go free (presumably to commit more crime, and have more chances to put them away) is minuscule compared to the impact of locking an innocent person in prison.
Yes, it means that guilty people will go free. But relaxing the constraints of what "convicted" means that by definition there will be innocent people convicted by 7-11/12 juries.
I'm not saying the impact is low, only that it's lower than locking up innocent people for crimes they didn't commit, potentially for years or decades.
The tiny number of people who can intimidate jurors, can simply intimidate multiple ones if you’re changing the rules. Much simpler to simply isolate them so they are unaware of such attempts thus keeping juries and their families safe.
"It is better that ten guilty persons escape than that one innocent suffer."
In the language of statistics, it is a trade-off between precision vs recall.
In general, we cannot create a system that makes sure no innocent is behind the bars (other than not convicting anyone).
>"It is better that ten guilty persons escape than that one innocent suffer."
I believe this is by far the best way to handle it as well, but I did recently read a book that brought up an interesting point.
The line above is almost always the justification given. But, what if those ten were murderers, and by letting those ten escape, each one ended up killing another innocent? Now in your efforts to stop one innocent from going to prison, ten innocents have died, versus the one that would have been falsely imprisoned otherwise.
the objective is not some utilitarian maximization of wellbeing; it's to prevent the state specifically from bringing harm to an innocent person. the implication is that it's worse for the state to directly harm an innocent person than for the state to allow harm to come to that person through inaction (eg, failing to imprison murderers).
Well, Stalin had a habit of executing not only the suspected, but also their friends, family, and neighbors.
He cared more for recall than precision.
...
Utilitarian arguments (to which I adhere to, in general) are hard. There are so many consequences, including ones that are not immediate.
With putting people under arrest we often go for recall. Yes, it is a nasty experience for an innocent, but at the same time, it may avoid the case you mentioned.
Which long-term consequences? First, just because someone is a murderer, does not mean he/she is going to go on a rampage. Second, if precision is high, people can trust the system in the long term, and give some feeling of safety. Compare it with a lynch mob scenario, where it is easy to mishandle justice (and, long term, a lot of innocent are at risk).
> The impact of letting a criminal go free (presumably to commit more crime, and have more chances to put them away) is minuscule compared to the impact of locking an innocent person in prison.
This depends to a large degree on the nature of the crime, as well as the implied reduction of risk of committing them. Abolishing criminal sentencing altogether would clearly reduce the number of innocent people convicted, but few would argue it would result in a net reduction in social harm.
Genuinely interested whether anyone's done some sort of study on whether dissenting jurors tend to be more 12 Angry Men style heroes who focus much more carefully than their peers on the standards of evidence rather than prevailing prejudices against the alleged perpetrator, or more stubborn contrarians whose prejudices against evidence presented by certain types of people or in favour of certain types of defendant haven't been uncovered by the jury selection process.
I grew up in a country where there's no jury system in place. There, the judge(s) are all that matter in deciding the outcome of the case and as you can imagine, a lot of corruption happens (it is easier to bribe 1-3 judges than to a dozen jury for example).
I am curious (a serious question) what better system you have in mind to replace juries.
Norway uses a mixed system (it used to have juries for some cases; the very last jury decision after the law was changed was logically unsound - two questions, one of the four combinations was impossible; the juries returned that one) of panels of judges (from 1 to 7) depending on the type of case. For the most serious criminal cases the panel will have 2 professional legally trained judges and 5 "lay judges" - basically jurors of a sort, but unlike in a jury trial all of the judges (professionals and lay judges) deliberate together and vote together. In a 7 judge panel, at least 1 of the professional judges and at least 4 of the lay judges must vote guilty for a conviction.
This feels to me like it gets most of the benefit of both a jury and of professional judges. It avoids a lot of the issue of whether or not the lay judges understand the jury instructions and the legal aspects they're asked to judge on, but also ensures the prosecutor does need to convince both the lay judges and the professional judges for a conviction.
We also have the tradition of jury nullification in the US where jurors are free to acquit if they feel as though the law itself is unjust. Professional jurors would no doubt shy away from that because their employment depends on the government. In addition, in the US, jurors don't make decisions on the law, just the facts.
In Norway jurors didn't make decisions on the law either, which is why the distinction between jurors and lay judges exists. It's kinda moot now as there aren't juries anymore, but both systems existed in parallel (for different types of cases and severity)
It's not really that they are "free to acquit" either as much as that there is no mechanism for preventing it.
The issue is controversial enough that the several circuits have made it clear courts can present jury instructions designed to minimize it and/or prevent the jury from being made aware of the ability.
And this ability has also been extensively abused, e.g. for racist purposes. While it has also been used to attack unjust laws, I'm not convinced it is worth the risks.
The possibility of contradictory decisions is a feature of juries, not a bug. Juries are able to make decisions metalegally, not just legally. They are one of the most important checks on the power of the legal system.
In the US, if you do not want a jury trial, you are free (and encouraged) to do so and settle for a bench trial, where everything is decided by a judge. I think that gives you the best of both worlds as a defendant.
How do you know that? Would a local reporter take up the story, knowing they could end up in front of that same corrupt judge?
I'm not saying you're wrong, but here in the US we can be pretty certain that 12 random people are not corrupt. You just have to trust that judges aren't corrupt.
I don't know how you can know that. In the US, some lawyers definitely work hard to remain on the good side of judges.
I have dabbled in some areas of law that are 'bubbles' with specialized lawyers and no juries (family law, bankruptcy, landlord-tenant). It doesn't take much to disrupt them with conventional good lawyering because most people in those practices areas, judges included, are in a rut.
Criminal law has some similar problems mostly at the low level. But it is usually the prosecutors and the defense attorneys colluding to quickly pass cases through the system. The last thing most judges, prosecutors, and defense attorneys want is a jury trial because then they would have to do their job.
From the outside I had the impression successful defense attorneys would try to convince the jury by confusing them, which seems quite easy because the jury usually isn't educated in law.
In weak cases, lawyers from either side will try to confuse some of the issues. But the rules of evidence, criminal trial procedure rules, and the presiding judge can make this difficult.
Also, even though good research about jury deliberation is limited because they are conducted in secret, I recall (from memory) that research shows juries are pretty good at detecting when someone is trying to deceive them.
Further, in trials, the opposing party gets a say in the matter too. If one side says something deceptive or deliberately confusing, competent lawyers for the other side will point this out and attempt to correct the record, possibly turning the jury and the judge against the deceptive lawyer.
I can see how one could have that view. But in practice the role of US juries is limited to determining facts. The judge and appellate courts determine how the facts apply to the law.
Also, judges presiding over jury trials can set aside jury conclusions for a variety of reasons. And higher appellate courts can do so as well.
Can somebody explain how is this a good thing? Whenever nobody in a group has a different opinion on a serious subject that always seems extremely suspicious to me. Communist commissions used to vote this way traditionally.
> "Whenever nobody in a group has a different opinion on a serious subject that always seems extremely suspicious to me."
With a criminal conviction we're talking about exercising the state's monopoly on violence and coercing an individual to give up their liberty and freedom.
There shouldn't be a differing opinion on guilt. If there is, the state hasn't proven the subject's guilt beyond a reasonable doubt. If there is reasonable doubt, the person should be found not guilty.
Is it possible to prove somebody guilty with 100% confidence at all? I doubt anything beyond the realm of mathematical formulae can be proven with 100% confidence.
No, that's why it is "beyond a reasonable doubt". A guilty conviction is not proving someone guilty, it is saying that your peers have no reason to doubt your guilt.
I hope you have the opportunity to serve on a jury for a meaningful case one day. I did, and it really opened my eyes.
It was a young man being charged with a list of crimes, the most serious being negligent homicide. I went into it thinking "oh boy, this kid must be guilty" and by the end, I wished we had the ability to convict the prosecutor of negligence. The kid did nothing wrong.
But the initial vote was 11 to 1 not guilty. The one guilty was a retired guy, and to this day I believe he was just relishing having something to do because he kept us there for an extra day trying to convince him that the kid wasn't guilty. He didn't even have a good reason for the guilty vote either, which was the worst part. Eventually he relented and the kid went free.
The moral of my story is, having a different opinion isn't necessarily a good or useful thing on a jury.
if your take a random sample of 12 people in the USA, one of them is going to be way out there.
When i served jury duty, our discussion of guilt meandered into the philosophy of fundamentally unknowable universe (much to my dismay). how could anyone really know what happened unless we observe it with our own eyes?
I brought up the victim's seven stab wounds. Apparently evidence like that is subjective to some...
What are the secondary effects of this? Less conviction? More crime? Longer trials? More expensive legal process? Less jury trials? More judge autonomy?
I feel like my education in government had a strong bias in philosophy versus economics. That is, principles versus effects. In the practice of government, the bias flips.
Very interested by the lineup on Gorsuch's opinion:
> Gorsuch was joined in part by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Brett Kavanaugh.
I'm sure someone with more experience would see how it makes sense, but as someone who isn't well-versed in the workings of the Supreme Court, I'm surprised that set agreed on something.
It's somewhat expected. You have three liberal judges and two that are very pro-civil liberties (Gorsuch and Kavanaugh, plus Thomas who wasn't mentioned in that lineup).
Kagan on the dissent side is the only interesting thing for me; I would have liked to hear her thoughts, but she just joined Alito.
This is why the "conservative" vs. "liberal" wing of the court is a bit of a red herring in a lot of cases. Gorsuch and Kavanaugh are both very "liberal" when it comes to individual liberties of people being infringed on by the government.
The jury has a different role than appellate courts. The jury is a fact finder.
Among other things, appellate courts look at the application of those facts to the law. Appellate courts also can review if the facts determined by the jury (or a judge in non-jury cases) are unreasonable, whether fair procedures were followed -- including jury make-up or jury process.
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[ 3.2 ms ] story [ 243 ms ] threadhttps://www.scotusblog.com/2020/04/opinion-analysis-with-deb...
https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf
> In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Left me wondering where the right to unanimous juries comes from, since it doesn't seem to be mentioned in the actual amendment, and the article doesn't really tell me. Even SCOTUS blog, unless I missed it, doesn't say.
Thankfully, there's Wikipedia[1]:
> Originally, the Supreme Court held that the Sixth Amendment right to a jury trial indicated a right to "a trial by jury as understood and applied at common law, and includes all the essential elements as they were recognized in this country and England when the Constitution was adopted." Therefore, it was held that juries had to be composed of twelve persons and that verdicts had to be unanimous, as was customary in England.
The next paragraph was a bit odd in light of my question:
> When, under the Fourteenth Amendment, the Supreme Court extended the right to a trial by jury to defendants in state courts, it re-examined some of the standards. It has been held that twelve came to be the number of jurors by "historical accident," and that a jury of six would be sufficient, but anything less would deprive the defendant of a right to trial by jury.
Sure, but what prevents us from calling unanimity a historical accident as well? (Still, personally, I think having to have 12 — or maybe just 6 — people come to agreement on a conviction is for the better. I'd rather let a few guilty people go free than convict an innocent one.)
[1]: https://en.wikipedia.org/wiki/Sixth_Amendment_to_the_United_...
There is a quote in the court's opinion that using historical precedent "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process".
I agree with you, beyond a reasonable doubt should mean all jurors agree.
Otherwise, US States have a lot of flexibility in how they handle non-criminal cases.
Estimates of wrongful conviction are between .13%-5% (wikipedia, miscarriage of justice), however the main thing that trial by jury affords is transparency and perception of fairness, since you are convicted by your peers and not some politician with questionable incentives.
Further, the prosecutor has real power that far outweighs the power of the accused. Juries imperfectly provide an offset to that power imbalance.
On the fourth page of Gorsuch's opinion he summarizes the basic argument: "Wherever we might look to determine what the term 'trial by an impartial jury trial' meant at the time of the Sixth Amendment's adoption--whether it’s the common law, state practices in the founding era, or opinions and treatises written soon afterward--the answer is unmistakable. A jury must reach a unanimous verdict in order to convict."
I think your observation is correct--the logic of Williams v. Florida contradicts the logic of this new opinion. Before Williams v. Florida, and as that opinion honestly summarizes, 12 members was always required, solely based on historical practice. So Williams opposed the fundamental reasoning of historical precedent and overturned actual Supreme Court precedent; it looked to the fundamental purpose of the jury trial and whether the size was consistent with that purpose. For Ramos (or at least Gorsuch), consistent historical practice is the most important and even dispositive evidence of how a jury verdict must be composed, regardless of whether it was accidental rather than deliberate, and regardless of whether a non-unanimous verdict achieves the purpose; it seems to return to the pre-Williams reasoning. To the extent purpose mattered, it was the purpose of the deviations from unanimity, and that purpose was preserving white supremacy.
A second way to look at it would be to consider that the accused has presumptiom of innocence,therefore the juror's purpose is to remove that presumption. If there is no unanimity then you're saying it is better to punish the guilty even if some innocents get punished in the process. If jurors represent society then one juror's opinion in a 10 person jury represents 10% of the population.
The English common law, which we inherited our own traditions from and much of which is still applicable today, is less a “law” in the sense of a set of decrees from a King or statutes passed by a parliamentary body and more a long line of traditions and community standards that change slightly over time according to a few principles, with the facts and circumstances of the time used to inform the judgement and sentencing.
Without a legislative body, you could go on evolving the traditions over time to cover any number of new and unique circumstances simply by using the existing body of law as a guideline.
So why 12 Jurors and why must they be unanimous? Because it is tradition, and the principle of stare decisis has kept it that way for a very long time. Can traditions change? Yes, but stare decisis makes it unlikely that any sort of arbitrary changes will be made and upheld. Think of it as the legal equivalent of inertia. The law stays the same given the same facts and circumstances unless changed by an outside force, usually a statute in modern democracies with common law legal systems.
The upshot of all of this is to make the practice of law and process of legal proceedings more predictable and arbitration less arbitrary if you’ve done your homework and can tie your case to a previous case, and it doesn’t even necessarily have to be a case from the same jurisdiction if it’s from the same legal tradition and not incompatible with the existing body of law in the jurisdiction the case is within. In contrast, whenever the legislature passes a new Bill and it’s signed into law, you have to study how this will affect new cases going forward rather than simply being able to rely on past precedent. This allows more instantaneous changes to new circumstances but also allows more arbitrary laws to be passed whose effects on people and commerce are not well understood until they are used in litigation.
That's not how the constitution works - supermajorities (55%, 2/3, 75%) exist in many areas around the world, so while majority and unanimity may be reasonable options, it's arguable that other points may also be reasonable.
I don't see why it's the only reasonable option. Consider if we discover that 90% agreement has the exact same false conviction rate, but a much better true conviction rate. That would justify a 90% majority over unanimity.
Maybe unanimity is maybe the only reasonable option when you don't have any other informatoin, but that bar can move once you have a better understanding of the phenomenon.
You can't guarantee a 0% false conviction rate even when requiring unanimity. That's why I said if the false conviction rate was the same, but the true conviction rate was better, clearly that's a better scenario.
So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
>> consistently proven
Your argument does not jive.
My argument does not jive only if you are looking for flaw and determined to find it even if it is only semantics.
Best of luck to you in these trying times.
Small data set does not necessarily entail it's not statistically significant.
> So while I understand your point, as you stated, we have no other information and as such the numbers we would need to validate it simply don't and won't exist.
"Won't exist" is a pretty strong claim. I posited but one example where the original claim was false, but I can probably come up with dozens of other scenarios where simple majority or unanimity are clearly inferior as the only two options.
The unanimous requirement was changed by the Criminal Justice Act 1967[1] (the relevant section since repealed) for criminal proceedings and the Jury Act 1974[2] for civil proceedings (incorporating criminal proceedings as well).
It's unclear why the number was originally set at 12 – historical research suggests the Danes set this number when they conquered parts of northern England and subsequent Anglo-Saxon monarchs simply continued it. Perhaps 12 was simply an appealing number, or maybe there were political considerations, etc. — it's impossible to know.
As for why Parliament allowed juries to come to a non-unaninmous verdict in specific circumstances, it appears to have been influenced by the Morris Committee Report of 1965 according to Hansard[3].
Additionally (as mentioned in Hansard above), the Scottish legal system have had majority verdicts for juries for a long time prior to the change to England and Wales in 1967 so that may have had some influence on the Government of the day implementing a change to the jury system.
Part of their concern was also down to "jury nobbling" - they felt that if one or two people were "nobbled", it would be fair to allow the remaining 10 to come to a verdict effectively disregarding the nobbled pair (this is also raised in the Hansard report above).
-- [1] http://www.legislation.gov.uk/ukpga/1967/80/section/13/enact...
[2] http://www.legislation.gov.uk/ukpga/1974/23/section/17
[3] https://api.parliament.uk/historic-hansard/commons/1967/apr/...
Also, does anyone know where hung juries fit into this? You would think that you're not-guilty until you're proven guilty, so what is this weird 3rd-state of "not guilty and also not not-guilty" based on in the 6th amendment?
They may be referring to felonies, but yeah the wording seems strange to me as well.
"Additionally, La. C.Cr.P. art. 782(A) provides in part that “[c]ases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.”
If the Court said nothing of other ways of classifying crimes, then that is all that means. It doesn't mean that it's constitutional, it's just that the court doesn't rule on cases and controversies that are not before it.
There is a lot case law looking at which crimes are considered serious. In some cases, crimes explicitly considered non-serious in one jurisdiction may be considered serious in other jurisdictions.
As far as hung juries goes, the unaninmity cuts both ways: the entire jury has to agree on acquital for that to be the trial outcome as well. In the case of a hung jury, the whole process failed to come to a conclusion, so everything is the same as if the trial had never occurred: the defendant is still charged and unconvicted, and still has the right to a speedy trial. Because the first trial was voided entirely, double-jeopardy doesn’t apply.
"... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; .."
On the face of it it seems like complete nonsense to say that you're not placed in jeopardy of life or limb until after the verdict is delivered. Then why were you sitting in that seat being tried for a serious crime? Were you just chopped liver until the jury delivered their verdict? And suddenly when they acquit you then it turns out your life were(/are) was in jeopardy after all? I feel like I must be missing something...
As for the opinion, I guess I can understand that if that's the case, but I'd be a little bit surprised if they got a case about non-serious crimes and went "just kidding, the same reasoning applies here too".
You are correct that one could argue that a hung jury is equivalent to acquittal but that isn't current caselaw.
It does make me curious how often the state re-tries someone after a hung jury. My guess is there is a large fall-off there. I'm also curious how many times the state can retry the case attempting to reach a verdict. I'm not sure if there is any caselaw covering that.
> I’d be a little bit surprised if they got a case about non-serious crimes and went “just kidding, the same reasoning applies here too”.
I wouldn’t be surprised at all, except at such a case making it all the way to the top. A lot of research effort goes into drafting these judgements, because they are usually quite long-lived. Any material relating specifically to the treatment of lesser crimes was likely ignored during the initial phases because it was out-of-scope.
It’s not just the outcome, but also the reasoning that sets precedent. Any appellate judge is free to draw parallels between the facts here and the facts of the case they are adjudicating, especially if this case is cited by one of the parties (presumably the defence). It’s then the job of the prosecution to describe why this ruling shouldn’t apply, which feels like an extremely hard task given the reasoning presented.
> The decision was widely expected and will have limited impact nationwide, as the only two states that have allowed split jury convictions in recent years are Louisiana and Oregon. Those two states could now face more than a thousand requests for retrials, according to documents they submitted to the justices.
I would bet that the principle the parent embraces is not "states have a right to exercise autonomy" but rather "states have a right to exercise autonomy on those things I agree with".
You know, like when people advocate for states' rights, except when a state decides to do something like narrow the right to handguns, or environmental regulations, or something like that.
I thought that we agreed as a country that things guaranteed in the Constitution applied regardless of what state.
Now, it is likely the case that defacto states do not have that ability. Since America broadly follows rule of law, I think it is highly likely that this decision will be enforced.
According to the supreme court, it was never legally the case that the states had that right, and the states will have to decide how to respond with respect to the incorrectly convicted people. But many people were put in prison on the basis of majority verdicts and this decision doesn't give them their time served back - it only changes the future. So the op is right to consider that something has changed and states are likely to be unable to do something that they used to do.
It is surely not a hill I would want to die on, and I surely do not think a state should have a right to preserve white supremacy.[] It seems we all knew what the right to jury trial meant, and conservatives have been arguing for the court to consider the originalist meaning.
[] I don't think a majority verdict necessarily needs to have any relationship with white supremacy, and I'm aware that other countries have found other paths. I also don't think procedurally valid court cases need to have unanimity. But if you sign up for a constitution that guarantees convicts a jury trial and you demand conservative interpretations what outcome do you really expect?
Slight more contentious is that it seems not unreasonable to expect unanimity from the Supreme Court itself.
Not really refuting your point, and definitely thinking about it in specific contexts. For example a consistent bad faith actor on a team at work can expect to eventually be removed from the team, and avoiding hiring these people (or bringing them into decision making processes) is one of the goals of a good hiring process. It’s usually framed as “culture fit”, to drop another euphemism.
Neither side is likely be in love with the jury they get, but adversarial process introduces the fairest outcome we could expect.
> Learning to negotiate in a non-adversarial way is an undervalued skill.
Absolutely. But another important systematically undertaught skill is how to operate when facing bad actors, narcissistic and such. These people destroy teams and institutions, precisely because most people dont know how to deal with them and most advice about good communication pretends they dont exist.
Aye. Do you(or anyone) have any resources/reading suggestions on how to be effective with this category of interaction? Particularly when it is coming from someone in a position of relative power? Another variant that seems distinct from straight narcissism—although it may be related or just a different manifestation—are people who, for lack of a more graceful way of saying it, only hear what they want to hear.
But i guess part of this also relies on the make up of the jury. If people in general is more likely to convict easier, it might make more sense to adjust that by requiring them to unanimous, in the reverse situation you might not want to require that because it becomes almost impossible to convict anyone.
The "new" system is a variation of what has long been used for non-jury cases, with some variation: A panel of judges where a minority are professional, legally trained judges and the majority are "lay judges" drawn from effectively the same pool as the juries. The total number of judges on the panel depends on the type of case and potential length of a sentence. They all deliberate together.
I'd thought said BS was largely gone from the books. Well, regardless how how much BS still remains or doesn't, I'll happily take one more bit of it being removed.
It basically was by the time this case was argued. But there was sufficient interest in how to rule on it (see Thomas' concurrence with the judgement only, and Kagan's dissent). The 6-3 split was pretty fractured as evidence for why they wanted to hear it. It is no surprise Gorsuch wrote the court's opinion; he has a particular disdain for things that impede civil liberties.
The split in the court is because some justices are worried about undoing something that has been used for more than a hundred years and upsetting a ton of cases.
Was this consideration discussed by the supreme court in the USA?
(edits - no results ctrl-f for "conspiracy", "intimidation", "mafia", "organized" in https://www.supremecourt.gov/opinions/19pdf/18-5924_n6io.pdf )
Juries will generally be majority white meaning the opinion of the black jurors would be discounted often.
Neither solution is ideal, and this topic interests me greatly, it seems very similar to the questions of fairness and bias in statistics / ML.
People should be judged by a fair impartial jury. I have no idea how to ensure this. Race is one known factor. All white or all black juries are somewhat likely to be partial in the same way and thus not give a true result (as if that is possible) so you want a mix that reflects the community, and also has enough that the one other person isn't intimidated. Easy to say, hard to do.
In addition, we are supposed to be judged by a jury of our peers. Considering minorities make up ~40% of the population I don't think its a stretch to say at least 20+% of the jurors should be a minority.
The bar to convict should be high and this helps to ensure that. Rather 10 guilty men go free than one innocent man go to jail.
"Why should black people be judged by black people only?" Is a racist strawman argument. I am saying black people should not be judged by white people exclusively, as can happy if every jury is majority white.
How often do jurry opinions actually split purely along racial lines?
https://www.wwno.org/post/history-louisianas-non-unanimous-j...
Juries are often sequestered meaning that by the time you figure out what to try you can't get at them.
Of course none of the above is perfect. You can get around them if you put in enough effort. Which is why it is a tradeoff as others have said.
We do, however, have the ability to dispense with a jury entirely and have a single judge decide on the case. I suppose that's not much better: a single professional jury of one versus one of twelve.
It seems like difficulty in intimidating jurors would scale linearly, O(n)
Yes, it means that guilty people will go free. But relaxing the constraints of what "convicted" means that by definition there will be innocent people convicted by 7-11/12 juries.
If courts are unable to punish well connected criminals then it's difficult to keep a healthy democracy.
I'm not sure what the solution is, but it seems like there should be some redundancy in the system.
"It is better that ten guilty persons escape than that one innocent suffer."
In the language of statistics, it is a trade-off between precision vs recall. In general, we cannot create a system that makes sure no innocent is behind the bars (other than not convicting anyone).
I believe this is by far the best way to handle it as well, but I did recently read a book that brought up an interesting point.
The line above is almost always the justification given. But, what if those ten were murderers, and by letting those ten escape, each one ended up killing another innocent? Now in your efforts to stop one innocent from going to prison, ten innocents have died, versus the one that would have been falsely imprisoned otherwise.
...
Utilitarian arguments (to which I adhere to, in general) are hard. There are so many consequences, including ones that are not immediate.
With putting people under arrest we often go for recall. Yes, it is a nasty experience for an innocent, but at the same time, it may avoid the case you mentioned.
Which long-term consequences? First, just because someone is a murderer, does not mean he/she is going to go on a rampage. Second, if precision is high, people can trust the system in the long term, and give some feeling of safety. Compare it with a lynch mob scenario, where it is easy to mishandle justice (and, long term, a lot of innocent are at risk).
This depends to a large degree on the nature of the crime, as well as the implied reduction of risk of committing them. Abolishing criminal sentencing altogether would clearly reduce the number of innocent people convicted, but few would argue it would result in a net reduction in social harm.
Genuinely interested whether anyone's done some sort of study on whether dissenting jurors tend to be more 12 Angry Men style heroes who focus much more carefully than their peers on the standards of evidence rather than prevailing prejudices against the alleged perpetrator, or more stubborn contrarians whose prejudices against evidence presented by certain types of people or in favour of certain types of defendant haven't been uncovered by the jury selection process.
I am curious (a serious question) what better system you have in mind to replace juries.
This feels to me like it gets most of the benefit of both a jury and of professional judges. It avoids a lot of the issue of whether or not the lay judges understand the jury instructions and the legal aspects they're asked to judge on, but also ensures the prosecutor does need to convince both the lay judges and the professional judges for a conviction.
It's not really that they are "free to acquit" either as much as that there is no mechanism for preventing it.
The issue is controversial enough that the several circuits have made it clear courts can present jury instructions designed to minimize it and/or prevent the jury from being made aware of the ability.
And this ability has also been extensively abused, e.g. for racist purposes. While it has also been used to attack unjust laws, I'm not convinced it is worth the risks.
In the US, if you do not want a jury trial, you are free (and encouraged) to do so and settle for a bench trial, where everything is decided by a judge. I think that gives you the best of both worlds as a defendant.
I'm not saying you're wrong, but here in the US we can be pretty certain that 12 random people are not corrupt. You just have to trust that judges aren't corrupt.
I have dabbled in some areas of law that are 'bubbles' with specialized lawyers and no juries (family law, bankruptcy, landlord-tenant). It doesn't take much to disrupt them with conventional good lawyering because most people in those practices areas, judges included, are in a rut.
Criminal law has some similar problems mostly at the low level. But it is usually the prosecutors and the defense attorneys colluding to quickly pass cases through the system. The last thing most judges, prosecutors, and defense attorneys want is a jury trial because then they would have to do their job.
From the outside I had the impression successful defense attorneys would try to convince the jury by confusing them, which seems quite easy because the jury usually isn't educated in law.
Also, even though good research about jury deliberation is limited because they are conducted in secret, I recall (from memory) that research shows juries are pretty good at detecting when someone is trying to deceive them.
Further, in trials, the opposing party gets a say in the matter too. If one side says something deceptive or deliberately confusing, competent lawyers for the other side will point this out and attempt to correct the record, possibly turning the jury and the judge against the deceptive lawyer.
I am lawyer and I think trial by jury is one of the most important features of democracy and freedom ever invented.
Also, judges presiding over jury trials can set aside jury conclusions for a variety of reasons. And higher appellate courts can do so as well.
Once the police like you for a crime they’ll likely find a way to make it stick. Even if it’s just circumstantial. Most people plea.
Lawyers are highly educated performance artists. Prosecutors are pretty persuasive.
Look at DA Larry Krasner in PA. He’s fighting corruption.
With a criminal conviction we're talking about exercising the state's monopoly on violence and coercing an individual to give up their liberty and freedom.
There shouldn't be a differing opinion on guilt. If there is, the state hasn't proven the subject's guilt beyond a reasonable doubt. If there is reasonable doubt, the person should be found not guilty.
It was a young man being charged with a list of crimes, the most serious being negligent homicide. I went into it thinking "oh boy, this kid must be guilty" and by the end, I wished we had the ability to convict the prosecutor of negligence. The kid did nothing wrong.
But the initial vote was 11 to 1 not guilty. The one guilty was a retired guy, and to this day I believe he was just relishing having something to do because he kept us there for an extra day trying to convince him that the kid wasn't guilty. He didn't even have a good reason for the guilty vote either, which was the worst part. Eventually he relented and the kid went free.
The moral of my story is, having a different opinion isn't necessarily a good or useful thing on a jury.
When i served jury duty, our discussion of guilt meandered into the philosophy of fundamentally unknowable universe (much to my dismay). how could anyone really know what happened unless we observe it with our own eyes?
I brought up the victim's seven stab wounds. Apparently evidence like that is subjective to some...
IMO: unanimous is too high a bar.
I feel like my education in government had a strong bias in philosophy versus economics. That is, principles versus effects. In the practice of government, the bias flips.
> Gorsuch was joined in part by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Brett Kavanaugh.
I'm sure someone with more experience would see how it makes sense, but as someone who isn't well-versed in the workings of the Supreme Court, I'm surprised that set agreed on something.
Kagan on the dissent side is the only interesting thing for me; I would have liked to hear her thoughts, but she just joined Alito.
This is why the "conservative" vs. "liberal" wing of the court is a bit of a red herring in a lot of cases. Gorsuch and Kavanaugh are both very "liberal" when it comes to individual liberties of people being infringed on by the government.
Among other things, appellate courts look at the application of those facts to the law. Appellate courts also can review if the facts determined by the jury (or a judge in non-jury cases) are unreasonable, whether fair procedures were followed -- including jury make-up or jury process.