Several years ago I received a jury summons. And while I detested the barbaric “show up or else” aspect of it, I did appreciate juries as a last ditch measure against tyranny. (Years ago I spent some time with Larry Dodge, the founder of the Fully Informed Jury Association, and I’ve been a fan ever since.)
I was assigned to a slightly complicated drunk driving case, and since I had courtroom experience the other jurors elected me Foreman. We heard the testimony in the case, which didn’t take long, then retired to our jury room to deliberate.
Once we got going I realized, for the first time, what kind of pressures were placed on jurors. More importantly, I saw that in just an hour or two, I could have turned my jury in either direction. It wouldn’t have been hard.
I didn’t do that, of course. I oversaw the jury very loosely and I was as fair as I knew how to be… without diminishing my own opinion, of course. It’s a sobering thing to decide whether a man goes free or is locked in a cage.
But, I could have turned the jury either way, and not because they were weak, stupid people (they weren’t), or because I was overbearing. Rather, I could have manipulated them because they were in a position that lent itself to manipulation.
How Juries Get It Wrong
My jury was composed of ordinary working people. Even the few grandpa/grandma types had important things to do, like babysitting those grandkids. That placed all of us in a pressure situation, with two things bearing down on us:
1.We were missing work.
Sure, we got paid for jury duty – a whole seventeen dollars and change per day – not remotely enough to cover our lost wages. All of us were getting hurt financially.
2.We couldn’t leave until we all agreed.
Jury verdicts in the US have to be unanimous. Either you all agree, or you stay for a long time. Sure, if you remain deadlocked for long enough the judge will declare a mistrial, but that could be a few days. Most of us couldn’t afford to lose a few days of work.
So, the jurors had to all agree, and quickly. The pain would keep getting worse the longer they took.
In other words, pressure was on each juror to change their opinion and go along with the rest of the group – or else we’d all have to stay, and it would be their fault.
If you put people under this kind of pressure, then give them some kind of half-rational reason to change their minds, without making them look like cowards, they’ll go with the crowd, just so the financial pain will stop.
That’s in direct opposition to the way it was supposed to be done.
Ancient Juries
In Athens, jurors were paid just a bit less than a working man’s wage. You’d probably prefer to work your regular job, but the difference wasn’t great, and a juror’s pay made a very nice extra income for a retired man. This tended to fill juries with older and cooler heads.
Also, a unanimous verdict wasn’t required, so there was no pressure on anyone to change their minds. Especially so since no one knew your vote unless you decided to tell them. (Compared to our version, where everyone in the room knows your vote.)
You might think that a simple majority vote might be a questionable thing when deciding something important, but these were large juries, so a 5-to-4 or 4-3 decision would never happen. The minimum size of an Athenian jury was 501. Juries as large as 1,501 were used for the most serious cases.
And, it’s worth adding, juries in Greece were all-powerful. Once your verdict was decided, your ordeal was pretty well over. You’d never have a case languishing in appeals for years.
So…
Please remember that no system of law dropped down from the heavens; all of them were created by humans… by fallible and sometimes self-serving humans.
Laws have no magic in them and they don’t automatically supply justice. That’s up to us.
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Paul Rosenberg
FreemansPerspective.com