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If you are facing criminal charges (in the United States), there is a person in the court (the judge) who is an expert in law, has extensive experience, and is (at least theoretically) impartial. And instead of having that person decide the case, it goes to 12 lay persons.

Since this is a Constitutional right, apparently that is a good thing. (I know you can waive your right and request a bench trial, but it is still a Constitutional right granted by the Sixth Amendment.)

Why did the Founding Fathers insist on this? Was Britain at the time notorious for bad judges? Did they actually want people to use emotional manipulation? Some other reason?

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    I’m voting to close this question because it belongs on politics.stackexchange.com Oct 15, 2023 at 23:52
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    My question is about the Constitution and court systems. It is absolutely a legal question and not political.
    – SegNerd
    Oct 16, 2023 at 0:08
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    "Why did the Founding Fathers insist on this?" is politics. Oct 16, 2023 at 1:01
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    "Was Britain at the time notorious for bad judges?": Britain at the time was notorious for having a right of trial by jury and moreover of having deprived colonists of that right.
    – phoog
    Oct 16, 2023 at 7:47
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    "the judge [...] is (at least theoretically) impartial" << There you have your answer. Note the similarity between the two questions "why do we have juries instead of impartial judges?" and "why do we have democracy instead of benevolent dictators?"
    – Stef
    Oct 16, 2023 at 15:15

8 Answers 8

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The U.S. Supreme Court has explained in Duncan v. Louisiana, 391 U.S. 145, 156 (1968):

Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. ... Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.

This mode of trial "had been in existence in England for several centuries" (Duncan v. Louisiana, 145). It was expressed in the Declaration and Bill of Rights of 1689. And Blackstone wrote in his 1765–69 Commentaries (Duncan v. Louisiana, 151):

Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that . . . the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.

Blackstone's Commentaries were well known to the U.S. founders.

The Declaration of Independence itself highlights the greivance that the founders had with trial by potentially biased judges:

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

And if there is any doubt that this reasoning was on the mind at the founding, the First Continental Congress in 1774 expressly objected to trials being conducted by judges dependent on the Crown for their salary and resolved that the colonies are entitled to:

the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

Another answer suggests that this choice is purely a historical accident and that any intentionality behind the decision to enshrine a right to a jury has been left in the past. However, for a comparative perspective, Canada provides an example of a relatively recent deliberate decision to constitutionalize the right to a jury in 1982. In the initial draft of the Canadian Charter of Rights and Freedoms, the right to a jury was omitted. This attracted considerable debate, and Section 11 was amended to include the right to a jury for serious offences.

One member even quoted from Blackstone's Commentaries (Charter Debates, January 28, 1981): "The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter."

The member goes on to argue that "the jury is the citizen's ultimate protection against oppressive laws and oppressive enforcement of the law," quoting from Sir Patrick Devlin (Charter Debates, January 28, 1981, 47:57),

Every jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make Parliament truly subservient to his will and the next to overthrow and diminish trial by jury, for no tyrant can afford to leave the subject's freedom in the hands of 12 of his countrymen; so that trial by jury is more than an instrument of justice and more than one wheel of the constitution. It is the lamp that shows that freedom lives.

This is not reasoning from centuries past; it is reasoning from 1981.

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    And it is worth noting that the text indicates that a jury is an option, not a requirement. You can opt to not have a jury, as Donald Trump's lawyers apparently did.
    – SCD
    Oct 16, 2023 at 12:10
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    @SCD not exactly. You can opt not to have a jury if the specific law has that option but the legislature could write a law that didn’t give the option and that would be fine.
    – Dale M
    Oct 17, 2023 at 21:18
  • In the NY Trump civil case Judge Engoron stated if Trump's lawyers had made a request for a jury trial, he would have rejected it anyway because AG James sought "equitable relief," the return of profits illegally obtained, that, under New York's constitution, precludes a jury trial. msn.com/en-us/news/politics/… Oct 18, 2023 at 17:02
  • Historically England (once it had kings and existed as a nation state) had distributed power - the king ruled through various nobles. Some kings balked at this and tried to achieve more of an absolute monarchy. Magna Carta was about the nobles establishing limits and party of this was ensuring that they (and eventually the common rabble) couldn't be tried (and executed, typically) purely on the wishes of the king, via his judges. This got passed on (imperfectly) to colonies, once England established some.
    – Rich
    Oct 19, 2023 at 3:00
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Historical accident and path dependence

Specifically, in the case of the US Bill of Rights, it's that the Founding Fathers were rebels, not revolutionaries - they wanted to replace the leadership at the top of society but did not want to overturn the basic system. So, in terms of the legal system, the Constitution partially codifies the British system that existed at the time. The British had trial by jury as a common law right. As a common law right it could be removed or modifies by Parliament which did so by moving smuggling cases to the Admiralty court (which didn’t have juries) and allowing judges to interfere in the composition of juries in America. That was one of the things the Americans rebelled over, so the Americans decided to enshrine it as a Constitutional right - one that couldn’t be removed or changed.

Also, don't believe what later commentators (including me) wrote about the motivations of the people who created the system many years, sometimes many centuries, before. They may say that it is a great protection against a tyrannical monarch, a protection against capricious judges, or a way of tapping the wisdom of the crowd, and maybe it does all of those things, but that's a posthoc justification to explain things that now exist rather than serious historical research into the actions and motivations of the people who actually did it; partly because most of the commentators haven't actually done the historical research but mostly because we simply don't have the records to do the research. For example, you probably think that "beyond reasonable doubt" was a provision to protect the accused - spolier - it isn't.

There is a strong desire to look at the institutions of society that have embedded themselves and think a) things could be no other way and b) some insightful geniuses planned it this way with care and forethought; when it is far more likely that a) there are lots of systems that work and b) it's mostly a result of spur-of-the-moment decisions by Johnny-on-the-spot and it is what it is because it is what it is and it's too damn hard to change it now. See Why 12 Jurors, why not 11, 10, 9, 1?, Why are common people selected for jury duty?, and is 12 of your peers a bad thing now?

TL;DR

"Exactly! It's just a bunch of stuff that happened" - Homer Simpson

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    I respectfully disagree. There is contemporary evidence that the Founders were concerned about a check on the government’s power to railroad dissidents. The Declaration of Independence even protests that George III “has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries,” which led to Article III prohibiting both those things to ensure judicial independence. The John Peter Zenger trial is a very famous example of a biased judge that directly influenced the Bill of Rights.
    – Davislor
    Oct 16, 2023 at 23:13
  • @Davislor and is that not "historical accident"?
    – Dale M
    Oct 18, 2023 at 10:41
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    @DaleM No, not in the sense this post implies. They did in fact think about it and decide it served an important purpose.
    – Davislor
    Oct 18, 2023 at 16:23
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    @DaleM That’s true of everything, including things like monarchy, titles of nobility and a state religion that they decided to get rid of, and many other things they didn’t consider it necessary to guarantee explicitly.
    – Davislor
    Oct 18, 2023 at 21:33
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    It is true that they heavily drew on tradition. Yet, an answer that only gives a reason that would apply equally well to many other things they handled differently, and does not explain why they thought this one thing was different from the others, is not really helpful for our understanding.
    – Davislor
    Oct 18, 2023 at 21:43
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Jen's answer is excellent as far as it goes. I'll just add some details relevant in the modern continued desirability of the practice and reality.

Juries tend to be pro-defendant in state law criminal cases

Empirically, in U.S. state courts in criminal cases, juries are significantly more likely to acquit, unlike judges they sometimes deadlock (forcing a retrial if the prosecution is bothered to try but often a more favorable plea bargain) and are no more likely to convict, than judges.

So, criminal defendants overwhelming chose juries over bench trials except in rare cases where their individualized facts make a jury trial less desirable such as law enforcement defendants (and even then, the prosecution can insist on a jury trial if it wants one).

Other consequences of jury trial

Jury trials are found by some to be attractive because:

(1) juries render verdicts immediately after finishing deliberations after hearing the case, while judges in bench trials often takes weeks or months to rule,

(2) it makes it very unlikely that the trial will be broken up with trial dates spread over weeks or months,

(3) it is harder to appeal a jury verdict in a civil case since the jury makes few specific findings of fact and is given the benefit of the doubt about the basis for its ruling,

(4) judges are more strict about following the rules of evidence in a jury trial than a bench trial,

(5) jury trials are more expensive than bench trials and put parties without lawyers at a greater disadvantage, and

(6) while judges and juries are both supposed to consider only admissible evidence presented at trial in ruling, judges often know other facts that could be prejudicial like a non-testifying defendant's prior criminal record, and

(7) the possibility of a jury trial produces rules of civil procedure that disfavor prompt pretrial resolution of evidentiary disputes in lawsuits even when the facts are fairly clear, which is advantageous on average to a party who wants to buy time and to a party who feels that the case is complex and feels a need to tell the whole story to get justice.

Democratic theory and political perspectives

From the point of view of the functioning of the judiciary and democratic system of government as a whole:

(1) serving on a jury empirically increases your faith in the legal system,

(2) juries are a forum other than voting when decisions are made by "the People" rather than government officials or politicians,

(3) juries can nullify the law, i.e. ignore it, a decline to convict even when someone is technically guilty but it is unfair or unjust in the eyes of ordinary people which discourages overreach by prosecutors and judges,

(4) widespread use of jury trials not only prevents the finder of fact from being subject to "regulatory capture" but also makes "regulatory capture" of judges a less attractive strategy for people likely to engage in repeat litigation to engage in at all, and

(5) jury trials protect judges from being blamed for unpopular serious major decisions in high profile cases such as cases with seemingly excessive damages or cases where the liability/guilt determination in unpopular - this allows judges to remain more above reproach and less subject to criticism and hence more legitimate in the eyes of the public. The appearance of impartiality on the part of the judge that juries enhance can be particularly important for conveyance the impression to the public that criminal defendants have received a fair trial where judges enforce criminal law in cases brought by prosecutors and the vast majority of the time criminal defendants end up getting convicted.

A good example of how (5) works is to compare personal injury lawsuits before juries (which rarely result in criticism of the judge) to child custody cases before judges in which a judge has very wide discretion subject to very little appellate supervision and makes decisions unilaterally with no other judges on a panel or jurors (which is probably the predominant source of criticism of the fairness of judges).

Non-economic damage awards and other legal doctrine related issues

About 75% of U.S. civil jury trials are in personal injury cases, mostly on the theory that juries are more generous than judges in awarding non-economic damages (e.g. pain and suffering), or by plaintiffs who don't fully trust the judge (e.g. in civil rights cases where the judge is often a former prosecutor). In systems without juries, non-economic damages are often based upon administratively adopted scheduled that are more stingy (compare, e.g., worker's compensation awards to jury verdicts for disabling injuries and deaths) and these schedules or statutory damage amounts don't tend to keep up with inflation and the public sense of what is fair compensation.

Functionally, large non-economic damage awards from juries in civil cases also make up for the "American rule" that each side pays their own attorney fees in civil litigation in U.S. law.

Systemically, because juries are bound only by the legal instructions given and don't have access to the whole of case law and precedents, in making their decisions (especially on liability and guilty), it allows the somewhat vague and flexible legal standards of the law to stay vague and flexible rather than ossifying through precedents that govern very specific fact patterns. This reduces the risk of bad decisions in individual hard cases being baked into the law (although this is still a risk to some extent on a precedent based common law legal system).

In general, juries are good at translating community norms into decisions in cases where there is not a clear formula to determine the right answer.

Downsides of juries

Juries aren't unmitigated good things.

(1) They discourage prompt pretrial resolution on the merits of cases with factual disputes even if the correct outcome of the factual dispute is fairly clear. This often forces plaintiffs with strong cases to have to compromise and get less than they are entitled to in order to get a swift resolution, and it increases the settlement value of factually weak lawsuits.

(2) Jury trials are longer and more expensive to the parties and the court; this also delays the time frame in which trials can be set because jury trials take more days (an extra half-day to day for jury selection at the front end, and more time for jury instructions and deliberations on the back end), which is harder to find room for in a judge's calendar.

(3) Jury service places an undercompensated burden on members of the general public who have to serve on them and their employers.

Fun fact: There are more jury trials per capita in England and Wales than there are in the U.S., even though unlike the U.S., England and Wales does not have a jury trial right for minor criminal offenses and does not have a right to a jury trial in all but a handful of civil cases, and even though the U.S. has more serious felony cases per capita, because serious felony cases are much less likely to be resolved by a pretrial plea in England and Wales than in the U.S.

(4) Juries are more prone to letting people who are guilty of crimes avoid punishment and are only modestly less likely to wrongfully convict people.

(5) The jury system makes the law less certain and predictable.

(6) Juries allow judges to avoid responsibility for decisions that they strongly influence in harder to detect ways than simply rendering a verdict.

(7) Juries often make their decisions, right or wrong, for the wrong reasons and this can't be addressed on appeal as it can in a bench trial with a reasoned written order setting forth the factual basis and application of the law to the facts the support a ruling.

(8) Jury nullification can often be unjust, preventing democratically adopted laws from being given their full effect.

(9) In complex cases, jurors aren't always smart enough to understand the relevant law and the relevant facts.

(10) Jury unanimity means that unreasonable holdouts on juries who are representative of good thinking and community sentiment can produce incorrect or bad verdicts.

(11) Ignoring data not included in admissible evidence that is available to judges can result in less accurate resolutions of court cases.

Some of the downsides of juries are mitigated by their non-availability, either by contractual waiver of a jury trial right, or failure to demand jury trials, or choice of an arbitration forum, in many contexts where the downsides of jury trials are greatest.

For example, juries are usually either unavailable as a matter of law, or contractually waived in most debt collection cases with institutional lenders and landlords.

The larger number of lawyer hours required for jury trials in criminal cases than in bench trials in the U.S. is mitigated by the fact that the price at which government prosecutors and government public defendants charge for conducting jury trials is much, much cheaper than comparable private sector criminal lawyers and by the high rates of plea bargaining in the U.S. The average amount of compensation for lawyers and paralegals on both sides of the case combined (prosecution and public defender) in an average U.S. felony prosecution is well under $200 per felony case prosecuted. This wouldn't cover a single billable hour of work by mid-career a private sector attorney. Basically, the government is paying wholesale rather than retail for its legal work, and law enforcement does a lot of the grunt work to get cases ready for prosecutors.

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    @fectin Jury nullification is an option without regard to whether the outcome is unjust. Indeed, not infrequently, jury nullification occurs because following the law would be just and ignoring it would be unjust. For example, jury nullification was common against white defendants charged with civil rights violations from Reconstruction all of the way through the Civil Rights movement era.
    – ohwilleke
    Oct 17, 2023 at 20:26
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    @ohwilleke “was common”? I find your naïve faith that the present is that much better than the past charming.
    – Dale M
    Oct 17, 2023 at 21:21
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Because America had the right, and because the British tried to repeal it

So, a slightly different tack here, I'd argue, pedantically, the main reason that America has trial by jury is because it had it originally, and then faced a raft of royal measures in the Stamp Act removing it for certain offenses.

It had been established in Britain since 1215, as one of the rights in the magna carta, being entitled to a jury trial had been a fundamental right of citizens for 500 years at the point of the american revolution

However, the Intolerable Acts, passed by parliament, seriously limited this right in the colonies, in 1774. We have quotes from John Jay, the first supreme court justice, and in the list of "charges against King George", specific mentions of deprival of trial by jury being one of the causes of revolution.

Jury trial was mostly a matter of inertia - it is not the only good system that can exist, it is by no means perfect. But, with the full weight of popular support for the revolution behind it, as literally one of the rights people had fought and died for, it would have been politically suicidal to try and alter it in a newly formed USA. It would probably have gone down about as well as suggesting a monarchy, a peerage, or a federal government with complete control over the states.

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Many laws rely, at least in part, on the definition of "reasonableness". Even statutes which don't are often tempered by broader overreaching statutes that would allow violations of most statutes to be justifiable (and thus not criminal) if the defendant reasonably believed that following the statute would have certain bad consequences that could be avoided by violating it (how severe the consequence of following the statute would need to be varies by state), and of course convictions for most statutes would require proving a case beyond a "reasonable" doubt.

Although judges have to some extent undermined jury authority by trying to formalize their own specifications of what is "reasonable", part of the job of a jury is to recognize whether the state's claims about reasonableness hold water. If twelve ordinary people would think it plausible that they might have believed as the defendant did if they'd been in the defendant's shoes, that would imply that such a belief is reasonable. If twelve ordinary people believe its plausible that the defendant is innocent, that would imply that there is a "reasonable doubt".

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Trial by a "jury of peers" goes back to Pope Innocent III (1161–1216) and was referenced by Magna Carta in 1215. In Magna Carta it applied to judgments of barons (i.e. high class people) by other barons, and not to the general population.

I think the reason "jury of peers" has extended to other classes and survived so long in the evolution of societies is because it has a subtle and useful effect in binding different classes or geographical regions within societies together. Each class of people (e.g. builders) wants their class to be respected by other classes. That way, for example, they can charge higher prices for their contribuition to society. If a builder does something bad (e.g. murders an architect) then other builders first instinct may be to forgive the bad builder. But if they know all of society is viewing their verdict, then they will be aware that blindly forgiving all builders will lower the social standing of builders. So societies that encourage "jury of peers" in courts and other places (e.g. TV shows) will be stronger, and their customs will persist.

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"Twelve random yokels …" is not an accurate description.  The jury selection process (theoretically) allows either side to reject potential jurors they suspect of bias.  Everyone (including any judge) can be swayed by emotion, but the process (theoretically) allows either side to reject those that they think might be swayed against their side.

Finally, "don't want to be there" is certainly not true for some of us.

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  • I was in one trial where, during the selection process, the defense lawyer repeatedly violated the judge's instruction to not use the names of potential jurors. My suspicion is that he was trying to make us and/or the judge visibly angry so that he could argue bias or racism on appeal. The judge reprimanded him every time, but applied no consequences.
    – WGroleau
    Oct 17, 2023 at 19:05
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The USofA - luckily - inherited trial by jury from Britain, where centuries ago it had been established by the cultural ancestors of the US American colonists that anyone accused should be tried not by their overlords or landowners, but by people like themselves. Does that not work for you?

Britain was not at the time notorious for bad judges - though some existed.

The point was historically and is now not what but whether any judgement should be handed out

The expert in law with extensive experience and impartiality sits to decide first - and almost unheard of - whether the jury is wrong.

Only after the jury is not adjudged wrong may the judge pass any sentence.

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