IS TRIAL BY JURY OBSOLETE?

In 2011, the trial of R v Knox and Ors. in the United Kingdom was halted, and later dismissed, after it was discovered that Joanne Fraill, a juror, had contacted acquitted defendant Jamie Sewart after jury deliberations, via Facebook. Fraill also admitted to the conduct of independent research on Sewart. When asked for her reasoning, Fraill stated that she had done so because she empathised with Sewart. Lord Chief Justice Igor Judge posited that Fraill was ‘a woman of good character’ who lacked intent to pervert justice, but her actions constituted ‘flagrant breaches of orders.’ Fraill was then charged with Contempt of Court and jailed for 8 months.

Considering the judicial system of the USA, the witnessed prevalence of jury has, as argued, actually ensured the integrity of the judicial system, maybe at a subconscious level. Yet, the jury cannot bear the fragility of the current age and is often misguided due to personal and corporate biases. Such judgments against the defence or prosecution harm their right to a fair trial in court. 

The jury receives an exemption from the duty to provide reasons for their general verdict. In both administrative and judicial law, a judge is bound by statutes to formulate a ratio decidendi, the purpose of which is that the verdict delivered is not ultra vires or Wednesbury Unreasonable, so irrational that no reasonable authority could have made it. A judge’s misinterpretation has room to be questioned due to this feature. The deliberations of the jury are protected through laws that prevent the jurors from disclosing any information regarding circumspection prior to or post the verdict delivery. It is a preposterous method, as defendants cannot know if the verdict arrived from intelligible causes or a sentimental hunch. It is argued that this allows an organic part of society to judge a case, which people relate to and admire being a part of. Random selection of a jury from amongst the populace, and holding them responsible for making certain decisions, directly impacts the evolution of general conscience to which the moral standards of society relate to. 

Despite this, a jury's finding of fact, or a witness credibility assessment is almost always unappealable, because in countries that follow a mandatory jury trial, such as the USA and UK,  an appeal is only possible if and when there has been a prejudicial error of law, for example, the judge allowing improper evidence, or having given incorrect instructions to the jury. 

Furthermore, jurors often tend to exchange precise definitions with colloquial meanings to understand evidence more efficiently. But in more complex cases, the language is highly technical. In a 12th-century case, the jury could easily categorise ‘theft’ but jurors in today’s age are asked to understand specialised concepts. A jury applying a conversational understanding of a term like ‘intent’ or ‘negligence’ can interchange the verdict from its actuality. This lack of professionalism leads to an outdated approach of justice. 

Jurors become incompetent when distinguishing between evidence and prejudice. Juries tend to dismiss the Presumption of Innocence Principle (PIP) due to their innate biases and worldviews. In our society, such arbitrary adjudication is a deviation from the law, because it transforms it into emotional whims. This arbitrariness is weaponised by the state to skirt the PIP, as can be seen in the sentencing disparity between a negotiated Plea Bargain and a jury conviction. Legal historian John Langbein posited in ‘Torture and Plea Bargaining’, 1978: ‘In the two centuries from the mid-eighteenth to the mid-twentieth, a vast transformation overcame the Anglo-American institution of criminal jury trial, rendering it (the jury) absolutely unworkable as an ordinary dispositive procedure and requiring the development of an alternative procedure, which we now recognize to be the plea bargaining system.’

To assert that the jury is obsolete requires confronting the most compelling defence it holds. It is a status as an irreplaceable wall of conscience of the community. In contrast to a judge hardened by years of routine law, a jury of peers allows humanity to reckon upon a case. However, this is based on the assumption that jurors approach a case with no prior information or biases regarding it. But, Pre-Trial Publicity (PTP) has made this an almost impossible event. Especially in high-profile cases, the media contaminates society with heuristics regarding the case long before voir dire persists, the result of which is the state’s dormant jurors having ineradicable details regarding the case. If a juror has been exposed to any form of media coverage regarding a defendant’s character, that information becomes the dominant facet through which they interpret the trial’s actual evidence. 

Studies also show that jurors at times forget where they learned a fact, eventually attributing a media rumour to the trial testimony itself.¹⁰ This allows third parties like the state or private interests to taint the jury with prejudicial information that remains unrecorded and unchallengeable. In Fraill’s case, her decision to conduct independent digital inquiries was an extension of a media-saturated environment. When the state attempts to maintain a jury in such a hyper-connected society, it effectively exploits the juror's inability to remain cloistered. This defeats the defence and prosecution’s right to an objective tribunal due to its alteration into a pre-existing media narrative. The ‘Psychological Reactance Theory’ posits that when individuals’ deliberative freedom is threatened, such as a judge’s order to disregard any salient evidence, they often attempt to restore that freedom by over-valuing that forbidden information. Also known as the ‘White Bear Effect’, it increases its mental accessibility and ensures the immaterial fact remains at the front of the juror's working memory.

Jury nullification was considered a class and caste problem in India according to its British critics. Lord Lansdowne, India’s viceroy in the late 19th century, was displeased by the jury’s reticence to convict any defendant in a capital case. He wished to reform the CrPC because, as noted in his dispatch in 1892 to the Secretary of State: 

‘The scandal caused by the perverse acquittal of a Brahmin or other well-to-do person, and the injury to public morals by the lesson thus taught that such persons can commit a crime with impunity, are very great. We consider it of the utmost importance that such miscarriages of justice should be prevented, and that no countenance should be given to the idea that the courts apply one description of justice in dealing with persons of respectable birth or traditional sanctity, and another in dealing with the landless labourer or low-caste aboriginal.’

Regarding the workings of trial by jury in Bombay, the commission noted that it was found difficult to find jurors of the ‘right’ type, even in the advanced districts, and available jurors were shown to be easily approachable and moved by extra-judicial considerations. Jury trials were condemned for issuing unjustified acquittals, for empanelling unscrupulous professional jurors, and for failing to deliver independent, impartial and just verdicts.

The original intent behind the Magna Carta and peerage was having a jury of citizens rather than a jury of politicians, or law enforcement, or some other type of governing body that may have political advantage over the litigants. During the jury selection process, both the defence and the prosecution receive a certain number of dismissals they are allowed to use, with each side looking for any key markers or indicators as to why a potential juror would not be a good fit for their side of the case on that jury. It can be considered a fair method of trial. By ameliorating the ‘quality’ of the jury, the court tries to transform it into a more professional body.¹⁵ But a predictable jury is not a fair one, because here the system strips away the peers it was originally designed to include. 

The jury system imposes massive negative externalities on both the state and the parties included. It compels citizens to abandon productive labour for a sub-market stipend, and grants the state the authority to impose a non-progressive tax on the private sector of society. 

In 2023, the cost of jury management in the United Kingdom was estimated in the millions. Jurors claim £64.95 per day for loss of earnings and care costs for the first 10 days, thousands are summoned for jury service per annum. Hence, the total cost for juror payments alone exceeds £10 million per year. Considering the scale of the Crown Court backlog, the expense only increases. Absence from jury duty is considered a criminal offence, with a fine of up to £1,000 in the United Kingdom. If the jury consisted of people with well-paying jobs, it might not be indicative of a ‘jury of peers’. Contrarily, jury duty accorded to people who are paid comparatively lower sets back their earning capacity, since jurors are generally paid a minimum wage. 

In the United States, the trial penalty is so severe that it creates a market failure. The state offers a lenient sentence for a plea but threatens a draconian sentence if the defendant exercises their right to a jury. Roughly 94% of all criminal convictions in the USA are the result of plea bargains. Prosecutors, having the capability to stack charges, might offer a plea for a single two-year offence, but threaten to charge three separate counts, carrying a mandatory minimum of 15 years in case the defendant goes to trial. The Supreme Court of the USA in Bordenkircher v. Hayes had ruled that as long as the defendant is free to accept or reject the plea, a prosecutor's threat of a higher sentence isn't legally considered vindictive. But, if a right is too dangerous to utilise, it effectively ceases to exist for the average citizen. Therefore, innocent persons have to plead guilty to reduce the risk created by the inconsistency of a jury’s verdict. 

The ‘Vanishing Trial’ in the United States was a phenomenon where the percentage of federal civil cases reaching jury trial plummeted significantly from 5.5% in 1962 to less than 1% in 2004. This was an entirely rational response to the incongruity in verdicts delivered by the jury. Citizens prefer ‘Alternative Dispute Resolution’ (ADR) or plea bargains to ensure that their cases are resolved by experts rather than a jury, which led to the judiciary prioritising pre-trial dispositive motions to cease cases before they reach a jury, through which we can infer that the jury is a chokepoint.

Sometimes, a jury may intentionally find a defendant ‘not guilty’ despite the evidence proving otherwise, simply because the jury disagrees with the law itself. While historically used for noble causes, like refusing to convict individuals under the Fugitive Slave Act, it was also used by all-white juries in the American South to dismiss black jurors, or acquit white defendants who committed clear acts of violence against racial minorities. 

Ultimately, the jury is a vestige of an epoch. A superfluous amount of trials end up being about appeal to emotion, and softening the jury, because they are aware the jury may not understand the case in its whole. If two opposing forensic experts present evidence for and against the defendant, laypeople may not know right or wrong, because it is not their area of expertise. Not so often are we able to find a system that grants the same rights to all, and until we are able to replace the jury with a system of knowledge, justice will be delayed, and soon, denied.