Have you ever served on a jury? I have, multiple times, and I recently received yet another jury summons. On balance, I really don’t mind although it is often inconvenient. For one thing, the experience can be interesting. But more importantly it is probably our most vital civic obligation, much more important than voting because each juror has a far greater impact. If you were unfortunately caught up in the criminal justice system, wouldn’t you want the best and most attentive jurors for your trial, not just a bunch of unhappy saps who couldn’t find a way out of serving? So, next time you are called, suck it up and do your duty.
In California, where I live, they have improved their system so that it is no longer necessary to endure the tedium of long waits in the jury assembly room. You just call in each of five consecutive days to see if they need you. If you are called, either you are assigned to a jury the following day or your service is complete. They call it “one day, one jury”. Of course there is always the risk of being selected for a mega-trial lasting weeks or even months.
But I think there is a fundamental flaw in our system of dispensing criminal justice. Directly or indirectly it has arisen in several trials on which I was a juror. We are not allowed enough leeway in reaching a decision. For each individual count of the indictment, we simply choose either guilty or not guilty. There are no shades of gray. Either guilt is proven beyond a reasonable doubt – often a difficult concept in itself – or the defendant is deemed innocent of the charge. In fact, during jury selection, the judge invariably asks each juror if he understands the concept of “innocent unless proven guilty.”
That phrase embodies the flaw that I see. The fact that guilt is not proven is hardly evidence of innocence except in a convoluted legal usage. In many trials, jurors struggle with this issue. They may be convinced that the defendant is guilty, based upon all of the circumstances involved, but are faced with a prosecution’s case that is too weak for a guilty verdict. I have served on such a trial, a capital murder case. Our jury was almost positive that no one but the defendant could have committed the crime, but we found the actual evidence insufficient to meet the high standard of “beyond a reasonable doubt.” So, with some regret and dismay, we followed the law and freed the defendant. I suspect that there have been instances where juries flinched at deeming a defendant to be innocent and used jury nullification to ignore the judge’s instructions.
In the case of an insanity plea, the conflict is even clearer. Who believes that John Hinckley, Jr. is innocent, in the common use of the term, of the attempted murder of President Reagan? At best, legal insanity is an excuse for a criminal act, not a refutation of its facts.
A partial resolution of this flaw is offered by the Scottish verdict of “not proven”. This is a form of not guilty verdict in which the jury expresses their belief that the defendant may not be innocent of the crime. The humorous form of this verdict is “not guilty, and don’t do it again.” Some taint remains even if the defendant walks free and that eases our conscience to a degree. At least the accused won’t be able to stand smirking on the courthouse steps and gleefully proclaim his exoneration. Given this option, juries may be a little less inclined to violate their oath to follow the law.