Trial by Jury

Progressing through *The Brothers Karamazov* I was startled to hear a jury being selected. Tsarist Russia has trial by jury? Turns out it did, for some crimes, for a little while, as part of Tsar Alexander II's reforms in the 1860s, shortly after freeing the serfs and ending with the 1917 revolution. This law review article answered a lot of my questions, though being over twenty years old it still leaves me wondering how the revival of trial by jury is going these days. 

Anyway, you can hear the skepticism of the upper classes as the jury is seated--what can these muzhiks know about the passions and motives of a (sort of) aristocratic Karamazov? Well, everything, of course, because crimes are committed by humans for human reasons, and what we need of the jury is to simply be human beings. Which brings in Chesterton's great defense of exactly why the right to jury is so important: 

Our civilisation has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. It wishes for light upon that awful matter, it asks men who know no more law than I know, but who can feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing round.

Interestingly, while jury nullification (i.e. the unavoidable ability of the jury to refuse to convict a person even though the case against them is proven, because they disapprove of the law) is a hush-hush or lunatic fringe concept in American law, it was explicitly authorized and stated in Russian trials. Yet despite that, and despite a presumably higher historic degree of antagonism between the government and the people, acquittal rates in Russia were always similar to those in the US, which suggests that perhaps we will not unloose anarchy if we talk about it.  

My practice does not involve many jury trials, none criminal, but I have conducted or assisted with a few. From what I have seen, it is quite true that it is impossible to impress the nuances of legal concepts upon a jury. No matter how carefully explained, they will have no comprehension of burden of proof or causation. But they will very seriously try to understand who is in the wrong and to be fair, and in the end that comes out as close as we could ask for. 

On a lighter note, the miniseries Jury Duty provided a goofy but surprisingly heartwarming look at our judicial system. The premise is that a single person gets what they believe to be a legitimate jury duty summons and is seated on what appears to be a real jury. Only everyone--judge, attorneys, litigants, and all the other jurors--are actors. (The judge is also a retiring judge, so the legal process itself is fairly accurate.) The actors then provide increasingly absurd hijinks yet, through it all, our random juror remains committed to trying to give the litigants a fair trial and make a just ruling.