I have some background knowledge of the French judicial system, as a citizen of that country. Therefore I am immediately struck by the composition of the American jury: 12 jurors and 8 alternates (US citizens) enter the courtroom, and sit here to listen, come to the most objective conclusion, and decide the future of one of their fellow citizens. In most European countries, by contrast, the jury panel includes “professional jurors"--a paid occupation for specialists in this role. The difference therefore is remarkable for a foreign observer. Considering what is at stake, it is surprising that “ordinary citizens” will be entrusted with another’s life in such a way. I’m wondering how these jurors, even of good will and in good faith, will be able to judge this boy when they don’t seem to know more about the case or the law than I do.
The first question of the judge for the jury is if they have been "paid." Since the amount paid is very minimal, it seems odd to even ask.
Following this peculiar inquiry, I witnessed an entire day of a succession of witnesses, questions, twists, arguments about details, and motions back and forth. I leave the courtroom unable to form an opinion about “conviction" of the accused. My confused state is understandable and normal; that is why most countries have progressively moved toward incorporating professionals among the audience that is charged to judge.
Indeed, a comparison of criminal justice systems among various countries reveals plenty of differences and options regarding “justice." The US seems to be quite original in its trial practice, especially considering the seemingly sacred place the jury holds as an institution. To understand why this is so, one has to look back into history. Both the US Constitution and the Bill of Rights carry forward the spirit that the “ordinary person” should have considerable power. These political texts were inspired by two main streams of thought: Puritanism and the Civic Republicanism mainstream, both of which had long been suppressed elsewhere. Puritans have always been suspicious toward a unique and powerful authority that would be superior to the individual; to them, the state, especially a centralized power, is suspect. The emphasis on a popular jury can be read as a means to counter-balance a threatening political entity. The Civic Republican stands for the strong political right of the average citizen to participate in government.
Forefathers of the US imported the British judicial system, but they reinforced the role of the jury for the reasons just cited. This early reasoning survives, and the modern context adds additional reasons to conserve it. Despite the increasing complexity of laws and legal issues, US judges and defendants don’t opt for “profesionalization” of the jury. Citizen-jurors use common sense and apply their own values, whereas lawyers and judges are more likely to get enmeshed in technical details and verbal sparring, making reaching consensus more difficult. Such citizen-jurors may also be viewed today as a way to strengthen a solid democratic culture at the local community level in a society that is increasingly divided culturally and politically.
These roots help an observer understand why the American criminal justice system is different from those of many other countries, where cases are judged by an assembly of both citizens and law professionals--if not a majority of professionals (as in Germany) or even exclusively professional judges (as in the Netherlands). Indeed, the trend in Europe is the “professionalization” of the jury. This move is in response to the increasing complexity of legal rules and issues. European juries are usually composed of both professionals and ordinary citizens, though the respective influence of each component depends on the rules of a country.
In France, all cases involving environmental matters, financial issues and commercial conflicts or couples' “disagreement” have been judged by only professionals for decades. Crimes remain evaluated by an assembly composed of nine citizens and three professionals. The latter provide the jury with information about the specific questions of law, and give the citizens the necessary technical background to frame the debate and deliberate. Furthermore, the professionals address the questions specifically related to applicable laws, and are the last to speak. The philosophy behind such orientation is the belief that judging requires some technical competencies in law as well as empirical experience. The rationality of the decision is of paramount importance in France, eclipsing the principles of free involvement of citizens in the political matters of the society. Such a rational orientation is predominant in most Europeans countries, and is inherited from Roman law.
In most of cases, a jury in a European country has to base its decision on proofs or arguments debated during the trial. By contrast, in the US, as well as in Belgium and the United Kingdom, the principle of “intimate conviction” applies: The members of the jury do not have to justify the choice they--according to the “intimate conviction” theory-- took in good faith.
This comparison is challenging, because the American system reveals a choice that is made based on the jury's concerns--the concerns of the "average citizen," the "peers." This "popular jury" is praised for its role in the society, but not because it is necessarily efficient or “professional” in its conclusion. Numerous critics of the US jury system recognize that the emotions involved in a trial, added to each juror’s own background and biases, can affect one’s objectivity. This explains, in part, why other countries choose to use magistrates--professional judges--in important criminal cases.
However justified the reasons for retaining the popular jury system in the US, significant judicial mistakes have been widely reported in the past decades. Primary among those are the too-evident discrimination against black defendants and the well-known process of selecting juries according to one’s interests. Such maneuverings can damage the administration of justice. From what this writer has observed, the criminal's side is more than likely overwhelmed, to the supposed advantage of the well-being of the society, and its good feelings about the constitutional fiction that the citizen, in his or her role as a juror, is powerful. The popular jury is not so much a right given to the defendant to get a fair judging by his fellows; it can more correctly be viewed as a right offered to the American citizen to participate to the decision of societal matters. Other sociological elements can be added to this analysis. A society obsessed by crime and punishment is more likely to ignore the interests of a defendant. Consider that the US is one of the last nations to retain the death penalty, even for minors and the mentally ill. (Even though the US Constitution can be construed as denying such a practice, judges themselves confess the Constitution’s mandates are rarely taken into account.) A study published by Amnesty International about this point is especially compelling.
This focus on the representation of the civil society in the judicial system can lead to other excesses. In 1968, the US public became aware that minorities were not sufficiently represented on juries. US juries formerly were constituted from electoral lists, but as lack of political involvement usually affects more minorities, authorities have changed the rules in some states, and juries now may be constituted from among those holding driver's licenses, rather from among those registered to vote. This seems to assume that drivers better represent poor communities than voters.
Should the destiny of people, even the “guilty," be sacrificed to that extent in the name of principle, belief, values, or democracy? Making legal judgments on the basis of cultural precedents rather than strictly on the facts of the case is, in this writer's view, a questionable practice. Culture is something that should be questioned by a society that wants to understand itself and evolve. Comparison is a worthy endeavor. The assumption of “intimate conviction” has been discussed among many societies, and more and more countries train professional jurors in the best schools and pay them to be in charge of the judging function in the most objective possible way. The implicit rejection by America of this orientation (if it has even been seriously considered at all) reveals the focus of this culture on “crime and punishment," on exclusive individual responsibility, and on scorn and exclusion for those who do not meet these standards. A society that does not seem to believe at all in rehabilitation and second chances is not likely to take the defendant's side.
Thus, at this Baltimore trial, the 19-year-old defendant whose trial I witnessed was found guilty of murder. He will probably spend his life behind bars. He will become another statistic, further inflating the incredible rate of citizens in jail here--a rate that is the highest in the world, a scary statistic that must be viewed as evidence of the system’s failure.
It is definitely time for the United States to open this matter of jury composition to debate.
This story was published on February 2, 2005.