10 October 2005

To Change the Jury

Ethan Leib, of Prawfsblawg fame, has put out a work in progress in which he proposes supermajorities rather than unanimous decisions for convictions and simple majorities for acquittals.

I haven't yet read the actual article but must say my gut instinct is to oppose this sort of change.

(A) There's no problem to solve here. Both from my personal experience and discussions with other attorneys, I believe there are very few hung juries. Juries almost always come to a unanimous conclusion.

(B) The objective of the system is to put the onus on the government. Not requiring the government to prove its case to the satisfaction of 12 citizens is a step back from the burden of proof. In effect, it gives the government extra strikes from the jury pool. If the required number for conviction is 8 the opinion of the last 4 is irrelevant. The government gets the benefit of the 8 jurors it would prefer present (the convictors) and gets to ignore the remaining 4, basically discharging them from their duties because they do not agree to convict.

But wait, you say, the defense gets this same benefit! In effect it gets 5 extra strikes in cases wherein the jury votes to acquit (7 being the number needed for a majority out of 12). Yep. But there's no lessened burden of proof because the defendant has no burden of proof. And, let's be honest here, how often is the holdout minority a couple of convictors when the rest are for acquittal?

Additionally, as a matter of judicial efficiency, there's a good argument for simple majority acquittal: A simple majority for acquittal would benefit a system which requires the government to prove its case by keeping the government from retrying weak cases.

Anyway, I suggest that ya'll go download and read the article. For all I know it blows my reservations out of the water. I'll try to comment on the article as a whole when I get a chance to read it.


Anonymous said...

The military operates off a 2/3d's to convict (unless a capital case) or acquit.

You can also have a quorum for a jury (preferred term in military is "panel") of as little as 5 (off-the-top-of-my-head if I recall correctly).

Ken Lammers said...

A different beast but the effect is the same.

BTW: Doesn't the military justice system also stack its juries by making sure that juries are composed, in majority, by officers?

Anonymous said...

Depends what you mean by "stack." An enlisted man has the right to a panel comprised of both officers and elisted members (who must comprise at least one third of the panel) if he so demands. Commissioned officers may only be tried by other commissioned officers. (UCMJ Art. 25).

However, I have read by some bloggers, such as Intel Dump, that a military panel is more fair than a civilian jury. They tend to cut through the razzle dazzle. The suggestion is that if you're innocent, you want to be in front of a military panel, but if you're guilty, you don't.

It should be noted, though, that the Federal Rules of Criminal Procedure mostly apply to Courts-Martial and they have an excellent track record for providing justice for military members.

markm said...

When I was in the Air Force (enlisted), the general opinion among the more experienced members was that if you're innocent, you want to be in front of a military panel, but if you're guilty, you don't - except that the first clause is almost inoperative. Military prosecutors don't bring cases to trial unless they are sure they can win; it's not good for the service. OTOH, civilians can often do something they know is wrong but not illegal; military laws have a much broader reach.

There might be an exception to this: when the case becomes highly political, a military court may be more susceptible to influence than a civilian one. It's illegal for commanders to try to influence the court, but unlike a sequestered jury, there's no way to prevent a commander who's willing to break that law from exerting pressure on panel members.

The second widely held opinion was that only a fool would use his option to have enlisted members (non-commissioned officers) on the panel. NCO's are harsher on the troops than officers, and I have never, ever heard of conditions in any American military unit getting so bad that NCO's would side with other NCO's or lower ranks against officers in a case involving a court-martial offense.

Anonymous said...

F. Lee Bailey (back in the day when he carried the big stick) always said he would take a military panel over a civilian jury any day.

Anonymous said...

I'd prefer to be court martialed if I was innocent, too, and to be tried by a civilian court if I was guilty.

But that's a different question.

How about requiring unanimous decisions for "guilty" or "innocent", with a supermajority for "not proven" or "not guilty"? Is the typical jury capable of such distinctions?