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12/11/2021

John McGinnis on the Jury in Criminal Trials
Michael Ramsey

At Law & Liberty, John McGinnis: The Jury versus the Politicians.  From the introduction: 

The constitutional requirement of a jury in criminal cases represents an essential protection of our liberty, an expression of democracy, and a commitment to deciding cases based on empirical evidence. It is not only a fundamental feature of America, but a celebration of the values of the Enlightenment that trusts in evidence and the collective wisdom of people disciplined by rules to sift through that evidence. At a time when the values of both our Founding and the Enlightenment are under attack, it should not be surprising that even the highest officials in our nation do not give the jury its proper respect, and that our culture, particularly our media culture, makes it harder for the jury to flourish.

...

The Sixth Amendment’s right to a criminal jury reflected the experience of those who wrote it. The revolutionary generation keenly recalled that the jury had restrained the injustice of the Crown’s centralized authority, most notably when a jury had acquitted Peter Zenger for seditious libel brought by the administration of the governor of New York. The jury thus was originally celebrated as a popular institution that restrained undemocratic authorityat that time the rule of colonial governors appointed by the Crown. But the Framers, who ensured that the law would be made and enforced through democratic mechanisms, retained an important role for the jury in the Republic as additional protection for liberty and a mediating institution between the individual and the state. 

In that new democratic context, the jury is distinguished from the legislature and the executive not so much by its popular nature, but by features that allow the jury better to approximate spontaneous order of civic society than more top-down institutions of democracy—institutions that, as the comments of our current leaders demonstrate, are liable to demagoguery and pandering. First, the jury is sensitive to the nuances of local values because it is drawn from the local community. Second, while the jury is, like democracy, an institution directly dependent on the people, it does not typically face the process defects such as the leverage of special interests and the rational apathy of citizens that beset centralized mass democracy.

In contrast to more centralized democratic institutions, the jury focuses the attention of a set of citizens on a specific purpose. Because of this design, the jury has the opportunity to inject social norms that bubble up from below into the laws that are themselves made in a more top-down manner. ...

Thus, through thousands of decisions each year, the jury infuses local and focused evaluation of evidence into the laws made by more distant institutions, less subject to the control of a politically inattentive citizenry. For similar reasons, Tocqueville himself celebrated juries as a kind of government-assembled civic association. He noted that it placed the “real direction of society in the hands of the governed . . . and not in that of the government.” He specifically noted that it “contributes powerfully to form the judgment and increase the natural intelligence of a people.”

Agreed, and along these lines, criminal juries can be a popular check on elite opinion and rule in a way that judge-only trials would not be.  We have seen judges become increasingly politicized and captured by elite opinion.  The criminal jury. for all its flaws, retains an element of citizen self-rule in an age of elites, as it was designed to do.