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| Judge Pierre Bergeron |
After attaining our independence, as we debated what would become our Constitution, the right to trial by jury emerged as chief among the demands of many states during our ratification debates.
Eventually, we enshrined the jury right in multiple sections of our federal Constitution. Nearly every state followed suit, often including more elaborate constitutional protections of the jury right.
But the jury is dying today — nationwide, only about 1% of cases reach the jury.[1] And this demise threatens confidence in our judiciary and even our democracy. It's time to start engaging in the debate about how to restore and rehabilitate this sacred right.
Today, when we consider the defining features of democracy, voting dominates the conversation. But to our framers, the jury trial right represented the most directly democratic feature in our constitutional design.
In the words of Thomas Jefferson, the jury trial represents "the only anchor, [as] yet imagined by man, by which a government can be held to the principles of its constitution."[2]
The jury trial — both civil and criminal — ensured that the people's voice played a prominent role in resolving disputes and in checking other institutions. No matter the identity of the elected officials, and no matter what laws that they passed, American courts were not to deprive citizens of their property or liberty without the approval of their peers.
The oft-quoted maxims of "checks and balances" and "separation of powers" usually call to mind the interplay between the legislative, executive and judicial branches. What this loses sight of, however, is the powerful check granted to the people through the jury experience.
The jury checks the legislature by applying the laws that it passes; it checks the executive by reserving a role for the public in the enforcement of criminal law and civil rights, including scrutiny of law enforcement investigative measures. And critically, the jury right checks the least democratic branch of government — the judiciary — by placing a buffer of ordinary citizens between judges and the litigants standing before them.
With the benefit of hindsight, one flaw in the constitutional design of the jury was failing to grant it any institutional power beyond the ability to decide cases. Unlike other institutions, juries are not permanent fixtures — they have no bureaucracy at their command to promote their interests.
Jurors complete their task at hand, and then return to their communities. No one lobbies on their behalf, and no organization stands up to defend juries when their power is whittled away.
The other branches appreciated this and slowly chipped away at the jury's powers, in derogation of our constitutional vision. Leaders in the fields of law, politics and business perpetuated a myth that juries just can't be trusted — jurors are too prone to emotion or incapable of understanding complicated disputes, and they frustrate the efficient administration of justice.
That basic sentiment led to the adoption of policies in all three branches of government that would ultimately impede the jury right and manifest in the 1% of jury trials that we see today.
In modern courtrooms, we have replaced a system where the jury and the community play an integral role in dispute resolution and in keeping other institutions in line with one where efficiency supposedly reigns supreme.
But that trade-off has costs. As we look around at crumbling faith in our institutions, maybe returning to the founding vision of juries could provide some redemption.
Importantly, this can and should be a bipartisan effort. For the conservatives out there, the original vision of the jury should appeal to originalists, and the check concept should appeal to those who are distrustful of the institutions to be checked. And for the progressives, the jury demands listening to community voices, and the jury can be a means for furthering the cause of social justice.
The jury has a little bit of everything embodied in it because it ultimately is reflective of us.
How do we go about restoring and reclaiming the jury trial? It won't be easy, but here are some ideas to try to spark debate.
Provide real education about the jury.
The story I've shared above about the role of the jury as a check on other institutions isn't part of the contemporary narrative about the jury. It's not prominently taught in high school, college or even law schools for that matter.
As lawyers and judges, I would submit that it's incumbent upon us to change that. If there's anything that might secure bipartisan acclaim in this divided age, it's that we should have more checks against the three branches of government, because most people don't trust those branches.
The jury can provide that, but the public needs to be made aware of that power and how it's been taken away from them.
Reimagine trials.
Major League Baseball — often as resistant to change as the judiciary — recently recognized that it had to adapt or die. Changes like implementing pitch timers, increasing the size of bases and eliminating shifts were all designed to make the game more engaging for the fans.
We need to apply that same type of creative thinking to the modern trial.
One of the biggest challenges is that people are accustomed to consulting their phones anytime a question crosses their minds, which poses a problem during trials. But perhaps we need to reimagine the trial with the jury taking a more participatory role.
Some courts allow jurors to ask questions under certain circumstances, but can we expand that a bit? Trial judges should experiment with new and innovative ways to make the jury a more integral component of the trial.
Courts are starting to take steps such as allowing jurors to discuss the case before the end of trial. Experiments and innovations like this are great, and we need to learn from them.
Ensure juries are representative.
Although the U.S. Supreme Court outlawed discrimination in jury selection in its 1986 Batson v. Kentucky decision,[3] the case and its progeny made it easy to seat juries woefully lacking in diversity.
Some states are starting to appreciate that the way to promote fair trials is to ensure juries are actually representative of the local communities.
Washington, California, New Jersey and Connecticut have recently implemented reforms designed to minimize the risk of discrimination in connection with peremptory strikes. Arizona went a step further and eliminated peremptory strikes.
We need to study the effects of these measures and ultimately expand them into other states.
People will remain distrustful of juries if they aren't truly reflective of their communities.
Eliminate the trial tax and draconian sentencing.
We can't really begin to encourage criminal defendants to forgo pleas and consider trials until we start removing some of the structural barriers that compel them to plea, and bring more transparency to the process.
Chief of these is the trial tax, which essentially penalizes defendants who go to trial and are convicted with longer prison sentences than if they take a plea deal, exacerbated by draconian sentencing measures in many states.
The various forces that cultivate pleas could easily consume a book — and there are some out there — so this is clearly not an easy fix. But acknowledging the problem is an important first step.
Simplify civil litigation.
On the civil side, discovery is great — up to a point. Lawyers often act like they're locked in mortal combat to get every scrap of paper that might be relevant to a case. This is why litigation drags on so long and is so expensive.
We need to think creatively about reigning in discovery so that cases can actually reach a jury, rather than dying a slow death in a war of attrition.
Conclusion
You may say that all of this is nothing more than a pipe dream. That's not the way our litigation system works. As a judge, I know. But we can't achieve meaningful civil or criminal justice reform without addressing the jury.
That's exactly why I'm trying to challenge people to reimagine our litigation system as embracing the jury rather than being hostile to it.
The jury can help restore confidence and faith in our judiciary, spread civic virtue and increase accountability in our democracy. We just have to give it the chance.
Judge Pierre H. Bergeron is a judge in the Ohio Court of Appeals, First District.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Jeffrey Q. Smith & Grant MacQueen, Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does It Matter?, 101 Judicature 26 (2017).
[2] Letter from Thomas Jefferson to Thomas Paine, July 11, 1789.
[3] Batson v. Kentucky
, 476 U.S. 79 (1986).