The Criminal Jury Should Be Abolished

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The Criminal Jury Should Be Abolished

Michael Lind

In 1994 former football star O.J. Simpson was arrested and charged with murdering his ex-wife Nicole Brown Simpson and her friend Ronald Goldman. After a lengthy, racially divisive trial, Simpson was acquitted of the crimes. Many commentators were outraged by the not guilty verdict. For some, the problem went right to the heart of the criminal justice system: the jury. The jurors were criticized as biased, ignorant, unreasonable, and hopelessly unprepared for the complexities of DNA evidence and other modern methods of criminal forensics. Michael Lind, a senior fellow at the New America Foundation and the author of numerous political studies, including The Next American Nation and The Radical Center: The Future of American Politics, goes beyond the particular criticisms of the Simpson jurors to condemn the institution itself. He asserts that trial by jury is a barbaric hangover from medieval England, which separated itself from the more sensible traditions of Roman law, the basis of the civil law tradition on the European continent. For Lind, a panel of judges and trained professionals, with full information and long experience, would be much more likely to reach a just verdict than a jury that is subjected to various legal tricks and often prevented from hearing vital pieces of evidence.

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In the days and weeks to come [following O.J. Simpson's acquittal], you will read and hear a small army of eminent jurists, politicians and journalists responding with soothing assurances to popular outrage over the travesty of justice in the Simpson case. They will tell you that, though fallible individuals sometimes make mistakes, the contemporary American jury system remains the best arrangement ever devised for ascertaining guilt and innocence. The jury system works.

Don't believe a word of it. The American jury system does not work to free the innocent and punish the guilty in an efficient and humane manner. It never has. Juries have always abused the institution, sacrificing impartial justice to political or ethnic goals. In Colonial America, the jury gave colonists a way to subvert local overlords appointed by London. From independence until the civil rights revolution, the jury was a means by which white bigots legally lynched Indians, blacks and Asians (or acquitted their white murderers). Today urban black juries all too often put race above justice in the same manner.

Even in a society less racially polarized than ours, the Anglo-American jury system would be a bad idea. The progress of civilization can be measured by the distance between the idea of crime as a matter between the criminal and his victim's relatives (the feud, wergild), and the idea of crime as an offense against the impersonal, constitutional state. The twelve-person jury, which the Vikings bequeathed to Anglo-Saxon England, lies on the barbaric end of the spectrum. For all the refinements of the past millennium, the jury system bears the marks of its primitive origins. There's the magical number twelve (about which irrational debates occasionally erupt when the idea of ten- or eleven-member panels is suggested). And there's the competition between attorneys and the ritual of cross-examination, which resemble, respectively, trial by combat and torture (both of which, come to think of it, were also jurisprudential approaches of the ancient Teutons [Germans]).

The Civil-Law Alternative

Though the news may come as a surprise, juries as we know them are limited to the English-speaking, common-law world. Most other Western democracies have inherited their system of criminal justice from the continental European civil-law (Roman law) tradition. The contemporary civil-law tradition is not, as Anglo-American propaganda would have it, one of authoritarian, "inquisitorial" justice, with all-powerful judges railroading helpless innocents. On the contrary, all civil-law democracies today provide for some form of trial by jury. In civil-law countries, however, the jury is typically made up of a small number of professional and lay judges. The professional judges bring their experience to bear in sifting the evidence; the lay judges prevent the professionals from acting on the basis of prejudice or politics. Yet another professional judge presides over the trial (in some countries, impartiality is further assured by three-judge tribunals).

The differences between the common-law and the civil-law approaches to criminal justice do not end with the composition of the jury. Grotesque battles over the admissibility of evidence . . . just do not occur in the civil-law world, where the trial is usually preceded by a relatively calm investigation and examination under the direction of the public prosecutor and an examining judge. The defendant is treated more fairly, in these early phases, than in the United States. According to Stanford Law professor John Henry Merryman in his study The Civil Law Tradition, "The dossier compiled by the examining magistrate is open to inspection by the defense, routinely providing information about the prosecution's case that in an American proceeding would be unavailable to the defense until its production was compelled by a motion for discovery or it was revealed at the trial." No surprise witnesses, no sealed evidence envelopes, no sleazy tricks during discovery. Suppose that the United States, like France and Germany, had adopted its own national version of the civil-law system in the eighteenth or nineteenth century, in place of the British common-law inheritance—an American Civil Code, like the Code Napoleon or the Prussian Code.

Suppose, furthermore, that O.J. Simpson had been tried for murder under civil-law rules. How likely is it that the Simpson trial, in those circumstances, would have degenerated into an appalling spectacle of dirty tricks and bizarre legal hairsplitting? How likely is it that Johnnie Cochran [Simpson's lawyer] would have played the race card and asked the jury to send a message to the L.A. police, if the jury had consisted of, say, Judge [Lance] Ito and several other professional magistrates, as well as a few laymen? And the outcome of the Simpson case in a civil-law America? According to professor Merryman, "a statement made by an eminent comparative scholar after long and careful study is instructive: he said that if he were innocent, he would prefer to be tried by a civil-law court, but that if he were guilty, he would prefer to be tried by a common-law court."

Americans Should Set Aside Pride

I realize, of course, that by suggesting that we Americans might actually learn something from other countries I am questioning the dogma that the political and legal system of the United States has been perfect since its immaculate conception in an act of collective parthenogenesis by the Founding Fathers. The rules of American public discourse hold that no innovation in government or jurisprudence unknown to Americans before 1800, no matter how potentially beneficial, can be suggested for adoption; the opportunity for fundamental political and juridical thought in the U.S. came to an end with the close of the Founding era, rather as divine revelation is thought by Christians to have ceased at the close of the Apostolic Age.

While an intellectual tariff prevents the import of institutional improvements from abroad, Americans are free to export our superior system to the rest of the world. Indeed, doing so is something of a patriotic duty. Otherwise-educated Americans who happen to be completely unaware that our legal tradition is an eccentric deviation from the main tradition of Western jurisprudence do not hesitate to evangelize on behalf of the American Way in matters like criminal justice. In the first few years after the revolutions of 1989 in Europe, when post-communist states in Eastern Europe and Eurasia were debating different models of democratic constitutionalism (and usually concluding that the West German model is preferable to ours), a great number of representatives of the American bar flew into Eastern Europe to sing the praises of our malfunctioning separation-of-powers system and our even more disastrous jury system. My God, I remember thinking at the time, haven't the Eastern Europeans suffered enough?

Dangerous to Democracy

We put up with an electoral system and a constitution in wigs and buckled shoes; why not tolerate a criminal justice system that wears a horned helmet and a bear skin? Here's why we should be concerned: the defects of our particular inherited structures of democratic and constitutional government may be mistakenly interpreted by an alienated public as failures of democracy and constitutionalism as such. The result of such unwarranted but understandable pessimism might be support for plebiscitary rule in politics and, perhaps, vigilantism in law enforcement. Huey Long [Louisiana governor and senator of the early twentieth century] will clean out the crooked statehouse; [action movie stars] Charles Bronson or Clint Eastwood will punish the murderers who get off on technicalities. Legality cannot exist for long in the absence of legitimacy. In a contest between a law that seems to regularly produce unjust outcomes and extra-legal justice, rough justice in some form will sooner or later prevail. (How many people have you heard say, in response to news of Simpson's acquittal, "Maybe somebody will give him what he deserves?")

To make the American system of criminal justice work will require intelligent reform, which in turn requires honest criticism and debate. Unfortunately, ever since Pearl Harbor, debate about fundamental institutional reform in this country has been deterred by the implication that critics of American political and legal institutions are traitors, with either "brown" or "red" sympathies. It is worth recalling that from the Civil War to Pearl Harbor we Americans progressed by junking large parts of the obsolete Anglo-American Colonial heritage and eclectically importing institutional innovations from abroad: the research university, the polytechnic and the kindergarten from Germany, the secret ballot from Australia, workmen's compensation from New Zealand, the public museum from France. As Japan has done recently, we shamelessly copied other nations and frequently improved on what we copied. During that era of American flexibility and progress, Oliver Wendell Holmes Jr., nobody's idea of a flaming radical, observed in connection with the common-law tradition that the mere fact that a statute goes back to the time of Henry VIII is not an argument in its favor.

In the spirit of the enlightened conservatism of Justice Holmes, we need to audit our inherited institutions, rescuing what is vital by carving away the deadwood. We can begin by admitting that some of the foreigners who look aghast at spectacles like the Simpson trial actually may have something to teach us about devising a criminal justice system capable of telling right from wrong.

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