The Pathos of Politics (110) Juries


A jury is a body of people convened to consider findings of fact and render an impartial verdict within the confines of the law. Throughout history, juries have been both praised as exemplary of democratic ideals and criticized as confederacies of dunces. Whereas the praise is a lofty vacuity, the withering criticism is apt to emanate from any litigator in a moment of candor.


Juries arose from the custom of ancient Germanic tribes to use a group of reputable men to investigate a crime or judge an accused. This practice evolved into the Vehmic courts of the 13th–16th centuries. These tribunals in Westphalia were based on the county courts of Franconia, another German province.

Having received their jurisdiction from the Holy Roman Emperor, Vehmic lay judges ladled out death sentences in what were often secret proceedings. After execution, the corpse might be hung on a tree as a detriment to others.

Elsewhere in Europe, the power of life and death, once reserved to the Emperor alone, was usurped by local nobles. Only in Westphalia were capital sentences meted out by courts in the Emperor’s name. Vehmic courts were finally abolished in 1811 by Jérôme Bonaparte (Napoléon’s youngest brother), who ruled Westphalia at the time.


English jurors were originally neighborhood witnesses who passed judgment on what they themselves knew. The Normans brought their tradition of juries in their 1066 conquest of England.

During the 11th century, juries comprising knights might be summoned to provide information on local criminal activity. Such practice was formalized for civil disputes in the early 12th century, when Henry II established a system to resolve land disputes using juries of 12 free men; whence the grand jury, used in inquests.

The growth of English towns and concomitant breakdown of close-knit medieval society brought many changes in the 12th century. One was appearance of the petty jury for judging criminal cases.

In 1215, the church banned clergymen from participating in trails by water and fire ordeals as means of proving guilt or innocence. Lacking religious sanction, the practice was abandoned. Trials by battle had already fallen out of favor.

The church’s decree and King John’s Magna Carta of 1215 furthered the evolution of English law and the jury system.

No free man shall be captured or imprisoned or disseised of his freehold or of his liberties, or of his free customs, or be outlawed or exiled or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers or by the law of the land. ~ Article 39 of the Magna Carta (1215)

In the mid-14th century, those who had sat on a grand jury were forbidden from also participating in a trial jury for that crime.

The economy of self-informing juries in England during the early Middle Ages gradually gave way to those who sat in judgment without knowing the facts. English jurors remained free to investigate on their own until the 17th century.

In early trial-by-jury cases, a judge might decide a matter if jurors were not unanimous. By 1367, case law strongly affirmed unanimity as a necessity; though, over the centuries, this has been watered down to allow majority verdicts.


The American colonies naturally adopted the legal system of their motherland. Jury trials in criminal cases were a protected right in the original constitution, and further elaborated in the 5th, 6th, and 7th amendments: extending the right to trial by jury to both criminal and civil matters, and the employment of a grand jury for serious cases.

Today the grand jury is the total captive of the prosecutor who, if he is candid, will concede that he can indict anybody, at any time, for almost anything, before any grand jury. ~ American jurist William Campbell in 1977

The American colonies were exemplary of the geopolitical forces that extended the jury system. The expansion of the British Empire brought the jury to Asia and Africa.

In the aftermath of the French Revolution, juries became a symbol of popular government throughout Europe. For much of the continent, it was a short-haul heyday before decline. Holland and Luxembourg abolished their jury systems after Napoléon’s defeat. There was further weakening in Europe from the mid-19th century. In 1850, Prussia removed treason from jury jurisdiction. The Duchy of Nassau did so for all political crimes in 1851. Czechoslovakia removed treason from juries in 1923 and libel a year later. In 1919, Hungary suspended trial by jury entirely and never restored it. Germany abandoned juries in 1924. The Soviet bloc and fascist states abolished their jury systems. Japan did away with its short-lived experiment with jury courts in 1943. France never restored juries after German occupation in the mid-1940s. England whittled away at jury use by statute to a small category of cases.

The Belgian constitution specifies that the most serious crimes be judged by juries. As a safeguard for the press, libel trials must also be before a jury. Racism is excluded from this safeguard. Sweden also uses juries in cases involving freedom of the press, but not for other criminal or civil cases.

Norway uses juries only for the most serious crimes, and conviction requires only a 7-of-10 majority.

Spain has no established tradition of using juries and has only experimented with them since constitutional revision in 1978. One of the earliest trials by jury was for the murder of 2 police officers. The accused was let off for lack of jury unanimity – an acquittal that shocked the nation.


Following British tradition, India used juries until a scandalous case in 1959: K.M. Nanavati v. State of Maharashtra. Naval commander K.M. Nanavati was tried for murdering his wife’s lover. The trial received unprecedented media coverage, as such a crime of passion in the upper echelons of society was ripe material. Nanavati was generally given favorable press, as the man he killed was a playboy. It helped that Nanavati’s wife Sylvia stood by her man.

A jury acquitted. India’s high court dismissed the verdict and retried the case itself, whereupon Nanavati was found guilty. The Indian government then abolished jury trials.

After spending 3 years in prison, Nanavati was pardoned. After his release, Nanavati and Sylvia emigrated to Canada.


Generally, the role of the jury on the European continent and elsewhere is more restricted than it is in the US. The United States became the unabashed home of the jury system for both civil and criminal cases. Over 90% of the all jury trials in the world occur in the US.

 United States

In the US, the availability of jury trial varied from state to state until 1968, when SCOTUS decreed it a constitutional right in all criminal cases of “serious offense.” (Duncan v. Louisiana (1968).) The constitutional status of juries in civil cases is uncertain, but juries are generally available. The practice of allowing parties to waive jury trials also varies.

The historic requirements of property and competence for jury service have long been swept away in favor of a cross-section of the community. Most jurisdictions exempt some of those most qualified to serve on juries: police officers, lawyers, doctors, et cetera. Those who know about the law are also commonly excluded; that leaves the common uninformed citizen. Hence, the American jury system is about the most idiotic imaginable.

A jury is composed of 12 men of average ignorance. ~ Herbert Spencer

 Voir Dire

The commitment to random competence is moderated in the US by an elaborate screen process known as voir dire, which is conducted by trial counsel at the inception of a trial. Attorneys on each side may excuse a limited number jury candidates peremptorily; after that they must give a reason.

(Voir dire comes from the Anglo-Norman language, and originally referred to the oath taken by jurors to tell the truth (the Latin verum dicere). This trial-within-a-trial is also used on potential expert witnesses.)

Stupid reasons are okay. ~ American lawyer, psychologist, and jury maven Shari Diamond

American courts disallow excluding jurors based upon ethnicity or race, but the practice is widespread, especially in the south.

Young black men have absolutely no chance of getting on a jury. ~ American defense attorney Antonio Florence


Trial by jury is supervised by a judge. The formula for sharing power between a judge and jury is complex.

Juries are employed only to decide evidentiary issues. The judge instructs the jury how to apply the law in reaching its verdict.

The judge decides what evidence a jury may or may not hear. If the judge finds that evidence presented leaves no factual issue to be resolved, s/he may withdraw the issue from jury consideration.

Judges often make juries less effective by confusing them with perplexing legal instructions which are not written down. Jurors don’t like to admit that they don’t understand, so they muddle on. Many wrong verdicts have been wrought from juries baffled about where to draw legalistic lines.

Absent issue, a judge may direct the jury to find for either plaintiff or defendant in a civil trial. In a criminal trial, the judge may direct the jury to acquit a defendant but cannot direct a guilty verdict.

In a civil trial, a judge may overrule a jury. Juries in US civil trials are essentially window-dressing.

Jury Nullification

Juries are often justified because they leaven the law with community norms. ~ American lawyer and legal scholar Joseph Sanders

Juries may acquit, or find a defendant not liable, in abeyance of the law. Exercise of the power by a jury to selectively apply the law is termed jury nullification in the US (jury equity in the UK): a discretion that has been employed both in acts of conscience and as a matter of prejudice.

Jury nullification has a long history, as does “packing the jury”: judges hand-picking juries or bribing them to get a desired verdict. English and American histories have innumerable instances of jury nullification, and of judges effectively ignoring a jury’s verdict when it did not suit them.

  Bushel’s Case (1670)

In 1670 an English grand jury refused to convict William Penn of unlawful assembly. Penn was a Quaker who had been arrested for violating a law forbidding religious assembly outside the auspices of the Church of England.

An infuriated judge refused to dismiss the jury until he had got “a verdict that the court will accept.” After the jury refused to comply, the judge had them locked up overnight without food, water, or heat. Penn protested this and the judge had him bound and gagged.

After a 2-day fast, the jury persisted by returning a not guilty verdict; whereupon the judge fined the jury for contempt of court and had them imprisoned until the fine was paid. Penn again protested that this violated the Magna Carta and was forcibly removed from court.

Edward Bushel, a juror, appealed against his treatment. Chief Justice John Vaughan initially resisted the appeal (a request for a writ of habeas corpus), but other judges allowed it. In the finale, Vaughan ruled that a jury could not be punished for its verdict.


It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury; on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. ~ Chief Justice John Jay to the jury in Georgia v. Brailsford (1794)

Georgia v. Brailsford (1794) was a civil case over debt, tried with a special jury. This case established jury nullification in American jurisprudence, by the principle of notifying the jury of its power over both fact and law.

That precedent was capriciously countermanded a century later in the murder trial of Sparf and Hansen v. United States (1895), when SCOTUS decided 5–4 that jurors only had the right to apply the law as given by the court.

It is the duty of the court to instruct the jury as to the law, and it is the duty of the jury to follow the law as it is laid down by the court. ~ Justice John Marshall Harlan in Sparf v. US (1895)

While judges no longer had to notify juries of their right to selectively apply the law, jury nullification still arose from time to time.

Prior to the Civil War, northern juries frequently refused to convict those who helped fugitive slaves, feeling the law unjust. Throughout the 19th and 20th centuries, all-white southern juries acquitted white defendants accused of murdering blacks.

During Prohibition, juries often nullified alcohol laws. This frequent resistance contributed to repeal of Prohibition.

During the Vietnam War, draft resisters and war protesters on trial were sometimes acquitted by jury nullification.

In the 21st century, enforcement of drug laws have occasionally been nullified by juries. Juries have also balked at convictions which carry long mandatory prison sentences, assisted suicide, and firearms possession.

In 2001 the California supreme court created a snitch rule that required jurors to inform the judge whenever a fellow panelist appears to be deciding a case based upon disfavor with the law.

A nullifying jury is essentially a lawless jury. ~ California Supreme Court Chief Justice Ronald George

There have been prosecutions against jury nullification.

In 1996, Laura Kriho was the sole juror holdout in a drug possession trial which ended in a mistrial. Kriho was found in contempt of court, and charged with perjury and obstruction of justice, for learning about the potential harsh prison sentence the defendant may have incurred and not volunteering that she knew this to the court. The jury had not been told of the punishment for conviction. Kriho had to fight for 4 years before the charges against her were dropped.

In 2011, 80-year-old retired chemistry professor Julian Heicklen decided to exercise his constitutional right of free speech by handing out information about jury nullification on the steps of the Manhattan federal courthouse. Heicklen was indicted for jury tampering. The federal prosecutor on the case called Heicklen “a significant and important threat to our judicial system.” A year later a federal judge dismissed the charge on a technicality without addressing the issue.


In some jurisdictions a judge may, and often will, summarize the evidence or even discuss its weight; thus, a judge’s biases are directly transferred to the jury.

If a judge finds the jury’s verdict to be manifestly against the weight of the evidence, he may set it aside and order a new trial. The only exception is in a criminal case in which the jury renders an acquittal. A jury’s acquittal is always final under Anglo-American law, though not under European continental law.

One of the original purposes of the non-unanimous jury was to functionally silence the views of racial and ethnic minorities and women. ~ American law professor Charles Ogletree

Only 2 US states allow criminal conviction by less than unanimous jury verdict: Louisiana and Oregon. Only a 10-to-2 vote is required in those states. Oregon does require unanimity for 1st-degree murder, and Louisiana likewise in capital cases.

Jury deliberations are less vigorous when unanimity is not required. ~ Shari Diamond

When the required number of jurors cannot agree on a verdict (which Americans call a hung jury), the judge declares a mistrial. The case is withdrawn and must be tried anew. Owing to group dynamics, hung juries are relatively infrequent, even when unanimity is required.

European juries generally operate under a different principle: unless at least 2/3s of all jurors vote guilty, a defendant is acquitted. US army court-martial also works this way.

All individuals and groups exhibit biases. Juries are no different.

Jury verdicts and jury deliberations show the same inescapable influences of status, race, and gender that affect the rest of society. The jury system, intended to ensure the administration of justice by one’s peers, has various forms of bias and lack of representation that interfere with fairness. Juries are, in some ways, society in miniature. ~ Margaret Anderson & Howard Taylor

As with all groups, leaders quickly emerge in juries. Those with esteemed social status do the most talking in jury deliberations and are thought by others to be the most helpful in reaching a verdict.

Larger juries are more likely to reflect the community at large, which is the whole point of the jury system: the proverbial “jury of peers.” Equally important is that jury size has considerable impact on its performance.

Larger juries are more likely than smaller juries to contain members of minority groups, deliberate longer, and hang more often. ~ American lawyer and psychologist Michael Saks & American psychologist Mollie Weighner Marti

A larger jury naturally acts with a superior information resource base. Larger juries better recall more trial testimony than do smaller juries.

Larger juries more substantively deliberate, in sharing more facts and speculations, and in more readily challenging tentative conclusions. In that longer deliberations contain more information, they may improve the decision.

By contrast, smaller juries are more likely to be under sway of a dominant individual. Polarization is common in small groups. Hence, smaller juries give larger awards in civil cases.

Factions form during jury deliberations. Peer pressure weighs heavily upon jurors. A juror is much less likely to defect from a large faction to a small one. The larger the faction, the less willing a juror will be to defy group opinion.

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In a series of decisions in the 1970s, the US high court held that juries smaller than the traditional 12 did not violate the constitution. (Williams v. Florida (1970); Colgrove v. Battin (1973); Ballew v. Georgia (1978).) SCOTUS reasoned that what matters is not jury size, but the way it performs. This reflected nothing but woeful ignorance of human sociality in favor of imagined nonsense by that country’s jurist elite.

The essential feature of a jury obviously lies in common sense judgment of a group of laymen. The performance of this role is not a function of the particular number of the body that makes up the jury. ~ Justice Byron White in Williams v. Florida (1970)

In holding that juries smaller than 12 are constitutional, the supreme court set aside 600 years of common law tradition and 2 centuries of constitutional history, including the reversal of its own precedents. ~ Michael Saks & Mollie Marti

In its 1978 Ballew v. Georgia ruling, the supreme court found 5 too small a jury. 6 became the acceptable minimum.

Enigmatically, the 1978 opinion relied on studies comparing the behavior of 12- and 6-member juries to affirm the reduction to 6 while concluding that further reduction raised serious concerns about the jury’s ability to perform its functions. ~ Michael Saks & Mollie Marti