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3-Minute Civics: The jury is still out

For the Monitor
Published: 10/24/2021 8:00:10 AM

“You’ve been selected for jury duty.” For some, it’s a thrilling opportunity for vital community participation. For others, it’s the worst news they’ll ever receive from a court.

Of course, “You are hereby charged with the following crimes” is a far more chilling phrase, and thanks to the Sixth Amendment, these two statements will forever be linked. When the young nation adopted a universal “right to a speedy and public trial, by an impartial jury” in all criminal prosecutions, the meaning was clear. This was to be a foundational element of the criminal justice system moving forward, one that would steer the direction of many of the rules, procedures and values that would evolve in the generations to come.

But there’s an even more foundational question that must be addressed: What exactly is the jury supposed to do?

This seems simple at first. After all, it’s common knowledge that for a jury to convict a defendant of a crime in a trial, the jury has to believe that the guilt was “beyond a reasonable doubt.” Putting aside that this phrase has no actual objective definition (exactly how much doubt is reasonable doubt?) let’s examine the jury’s other option: not guilty.

From the beginning of America, criminal juries have had the power to generally acquit. This means that, when issuing a not guilty verdict, the jury doesn’t need to justify itself to anyone (the judge, the prosecution, the evening news), and the verdict cannot be appealed. Forget having to claim that its decision is “beyond a reasonable doubt.” A jury doesn’t even need to express a reason to acquit.

If that concept gives you pause, you aren’t alone. Is this good? Is this bad? Well, it’s American.

When our country was new, it was an acceptable practice for defendants in criminal trials to ask the jury to use their conscience, to look beyond the facts of the case and to decide not simply whether punishment was available, but whether it was fundamentally fair. Arguably, there’s a democratic beauty to this thought. Think of what a system guaranteeing jury trials as a basic right means. We’re effectively saying that, even though there is a judge, an impartial legal expert, running the entire operation, we think a random assortment of twelve average people of no legal training whatsoever will do a more fair job of overseeing justice. The jurors aren’t there because we think they know the law better than the attorneys and the judge. They’re there because we think they have some special ability.

The Sixth Amendment requires jurors to be from the same state and region where the crime was committed. So perhaps we should presume that jurors are supposed to represent the values of their community, to make sure those values aren’t offended by powerful federal or state prosecutors pushing some political agenda.

In 1851, Congress had recently passed a law called the Fugitive Slave Act, requiring officials in every state, even non-slavery Northern states, to arrest people suspected of being escaped slaves. In Boston, U.S. Marshals arrested Shadrach Minkins, who had escaped from slavery in Virginia. A group of abolitionists rescued Minkins, using force to free him from the marshals. Two of the abolitionists were arrested and tried. The president of the United States called upon the good people of Boston to convict these abolitionists, men who had clearly and openly defied federal law. The Bostonian jurors replied by setting the men free.

At the other end of the spectrum, this same principle has been used to devastating, horrifying effects. Emmett Till was a 14-year-old African American kid from Chicago visiting family in Mississippi when he was kidnapped and gruesomely murdered. Despite multiple witnesses and compelling testimony, an all-white jury of Mississippians took roughly an hour to find the two white defendants “not guilty.” The defendants openly confessed to the murder a few months later, accurately confident that they could never be punished in court for their crime.

Is this what juries are supposed to do? If the goal of the verdict-decider is to apply the law as accurately as possible, it seems the judge is in a much better position than twelve random citizens. But the fact that those citizens are the verdict-deciders, and that an original appeal was for jurors to use their individual consciences, suggests that something else is at play.

Here’s where I’ll share one last historical tidbit. For the last hundred or so years, American federal judges have specifically forbidden attorneys to inform jurors that they even have the power to acquit in the face of clear law-breaking. This ban has been justified by the argument that, if we tell jurors they can do this, they’ll become vigilantes who take the law into their own hands.

And that’s where things stand today. A jury in federal court is legally empowered to listen to the facts of a case, believe that the defendant broke the law, but nonetheless acquit. It just isn’t allowed to be told that it can do this. Maybe on that jury, there will be some members who remember their AP History class, and they’ll feel justified in following their conscience. Maybe other members of that same jury will believe this empowers them to apply whatever rationale they think appropriate in judging a person’s fate.

And so, we trust jurors literally to decide matters of life and death. We just don’t trust them that much.

(Chris Pappavaselio is a former high school Latin teacher and a second-year law student at Harvard Law School.)

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