Is the American Jury System Headed Toward Extinction?

Is the American Jury System Headed Toward Extinction?

Georgia R. Seay*

History indicates lay members within communities have participated as decision-makers in the justice system as early as the 800s.[1] Granted to the people, “[t]he power to convict and punish those who break the law is one of the most fundamental powers of government.”[2] According to Alexis de Tocqueville, much of the prestige bestowed on the judicial branch comes from the positive impact of interactions between judges and citizens during jury trials.[3]

Despite this praise, the “vanishing jury trial” increasingly presents problems within the United States.[4] In 2019, rural courts serving less than 25,000 citizens conducted an average of twenty-five jury trials; courts serving 100,000 to 500,000 citizens conducted an average of seventy-five jury trials; and courts serving 500,000 or more citizens conducted an average of one-hundred-forty-three jury trials.[5] By 2021, rural counties saw an eighty-four percent decline in jury trials; courts serving 100,000 to 500,000 citizens saw an approximately eighty-seven percent decline; and courts serving 500,000 or more citizens saw an approximately sixty-six percent decline.[6]

Statistics for the United States District Courts do not fare better.[7] Of the 3,266 civil trials conducted in 2023, only 1,217—or approximately thirty-seven percent—were reported as jury trials.[8] Of the 7,188 criminal trials conducted in 2023, only 1,695—or approximately twenty-four percent—were reported as jury trials.[9] Without reform, the jury trial will vanish entirely from the American justice system.

Recommended Reforms to the American System

America is trending away from jury trials, partly due to the public’s lack of faith in the jury trials’ ability to provide adequate justice and partly because the public no longer values serving on a jury.[10] However, international jury systems indicate that reforming the American system could prevent jury trials from vanishing altogether. This blog post identifies two main reforms that could save the American jury trial.

Change the American jury composition by supplementing layperson participation with participation from professional judges.

Preserving layperson participation empowers citizens to play a role in addressing crimes occurring in their community and can enhance civic engagement.[11] Still, it is evident that layperson participation alone is no longer enough to preserve public support.[12] For example, Norway found that adding professional judges to create the mixed tribunal best addressed public concerns over the jury’s efficiency.[13] The Norwegian system shows that despite disparities between the professional judges and laypersons in terms of finances, professional work, and personal experiences, the two groups have the ability to work together on equal footing to encourage well-rounded deliberation confidently.[14]

Additionally, adding a professional judge to the jury who understands and can recognize juror misconduct could prevent verdicts that garner public support from being overturned because of one or a few juror mistakes.^[15] While some juror misconduct or incompetence is unavoidable at no fault of the judiciary, many of the issues might be alleviated if a professional judge recognizes potential problems early in the trial when there is time to remedy the problem.^[16]

Lastly, completely removing layperson participation is unsupported by public opinion.[17] For example, Argentine provinces implemented jury trials “to restore the social contract that has been lost, in order to generate a bridge between the people and their leaders[.]”[18] Removing the layperson from jury service not only ostracizes the public from the judiciary but also effectively results in a vanished jury system. The trial by jury has symbolic global significance as an indicator of democratic self-governance and, as such, must be protected at all costs.[19] Reforming the American jury to be a mixed tribunal where the majority are laypersons, but professional judges are also present to provide opinions can help to prevent the trial by jury from vanishing completely.

Implement mandatory juror registration to reach a more representative cross-section of society so the American voir dire process produces more equal representation on the jury.

The American jury is randomly selected from either voter registration lists or driver’s license registries—two voluntary processes that limit which members of society are reached for the potential juror pool. [20] Due to the inability to reach all citizens, selected jurors often share the same types of biases against procedures, crimes, or defendants.[21] Accordingly, many Americans no longer trust the jury trial because the juror pool does not represent the American public.[22] In Argentina, mandatory voter registration ensures the judiciary system has equal access to all citizens for service on a jury.[23] Reforming the American system to mirror the Argentine system similarly allows the jury pool to represent a more accurate cross-section of the community since all citizens are registered. As such, the public’s concern that the jury does not represent them can be mitigated. While the representation might not be a perfect cross-section of the community, this reform is a step in the right direction.

Conclusion

“The power to convict and punish those who break the law is one of the most fundamental powers of government,” and citizens’ involvement in this process is a cornerstone of democracy.[24] Despite this praise, the “vanishing jury trial” increasingly presents problems within the United States.[25] Without reform, the jury trial will vanish entirely from the American justice system. The proposed reforms represent a step towards preserving the jury trial and layperson involvement. Only time will tell whether the United States can maintain the jury trial before it vanishes.

* Candidate for Doctor of Jurisprudence, December 2024, University of Tennessee College of Law.

[1] Sanja Kutnjak Ivković et al., Juries, Lay Judges, and Mixed Courts: A Global Perspective 1, 1 (Sanja Kutnjak Ivkovíc et al. eds., 2021); Trial By Jury: “Inherent and Invaluable”, W.V. Association for Justice (2014), https://www.wvaj.org/?pg=HistoryTrialbyJury#:~:text=By%20the%20late%20800s%2C%20under,of%20the%20modern%20jury%20system.

[2] Ivković et al., supra note 1.

[3] María Inés Bergoglio, Twelve Years of Mixed Tribunals in Argentina in Juries, Lay Judges, and Mixed Courts: A Global Perspective 57 (Sanja Kutnjak Ivkovíc et al. eds., 2021).

[4] Grant Reese, Should I Settle or Should I Go (to Trial)? An Analysis of the Dearth of Trials in the Modern Era and the Resulting Effects on Settlements, 44 L. & Psych. Rev. 297, 298 (2020) (stating that “[t]he civil jury, if not yet dead, is in extremis[,]” and that in 2018, less than one percent of cases were resolved by jury trial); The Honorable Robert J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo. Wash. L. Rev. 99, 99 (2018) (stating that between 2006 and 2016, the total number of jury trials declined by forty-seven percent); David J. Beck, The Consequences of the Vanishing Jury Trial: Does Anyone Really Care?, 1 Hous. L. Rev Online 29, 30 (2010) (“The jury stands alone–or at least apart from other politically driven government participants–as the repository of the people’s voice[,] . . . serves as a check on the power of [an] arbitrary judge, and [] expresses community values in its decisions.”); see also Citizens on Call: Responding to the Needs of 21st Century Jurors, Conf. of St. Ct. Adm’rs (Dec. 2023), https://cosca.ncsc.org/__data/assets/pdf_file/0024/97251/COSCA-Citizens-on-Call.pdf#:~:text=Based%20on%20sur

vey%20data%20collected,this%20fell%20to%204%20per.

[5] Citizens on Call, supra note 4.

[6] Id.

[7] See Table T-1—U.S. District Courts–Trials Statistical Tables For The Federal, United States Courts (Dec. 31, 2023), https://www.uscourts.gov/statistics/table/t-1/statistical-tables-federal-judiciary/2023/12/31 (last visited May 9, 2024) (reporting the statistics of jury and nonjury civil and criminal trials conducted by district and appellate judges within the U.S. District Court in 2023).

[8] Id.

[9] Id.

[10] John Gramlich, Jury Duty Is Rare, But Most Americans See It as Part Of Good Citizenship, Pew Rsch. Ctr. (Aug. 24, 2017), https://www.pewresearch.org/short-reads/2017/08/24/jury-duty-is-rare-but-most-americans-see-it-as-part-of-good-citizenship/.

[11] See Dimitri Vanoverbeke et al., Lay Participation in the Criminal Trial in Japan: A Decade of Activity and Its Sociopolitical Consequences in Juries, Lay Judges, and Mixed Courts: A Global Perspective 69, 71 (Sanja Kutnjak Ivkovíc et al. eds., 2021).

[12] See Gramlich, supra note 10.

[13] See Anna Offit, Dismissing the Jury: Mixed Courts and Lay Participation in Norway, in Juries, Lay Judges, and Mixed Courts: A Global Perspective 197, 215 (Sanja Kutnjak Ivkovíc et al. eds., 2021). Since January 2017, Norway has utilized hybrid juries, known as Meddomsrett, on both the trial and appellate levels. This shift highlights the Norwegian belief that deliberations between lay and professional judges, acting as peers, is more valuable than an all-layperson deliberation. Id.

[14] See id. at 206; Anna Offit, The Jury Is Out: An Ethnographic Study of Lay Participation in the Norwegian Legal System, 41 PoLAR 231, 238 (2018).

[15] See generally Commonwealth v. Braun, 905 N.E.2d 124 (Mass. App. 2009); Judd v. State, 951 So.2d 103 (Fla. App. 2007); Erlsten v. State, 842 So.2d 967 (Fla. App. 2003); State v. Burns, 800 So.2d 106 (La. App. 2001).

[16] See Sullivan v. Fogg, 613 F.2d 465 (2d Cir. 1980).

[17] Valerie P. Hans, Trial by Jury: Story of a Legal Transplant, 51 Law & Soc’y Rev. 471, 485 (2017); Peter Roudik, Georgia: Courts with Jurors Established Nationwide, Law Libr. of Cong. (Nov. 9, 2011), https://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402877_text.

[18] Hans, supra note 17, at 475. While the Constitution of Argentina provides for the jury system, it is still largely unexecuted, and there is currently no federal jury law. Only eight of the twenty-three provinces in Argentina have passed all-lay jury laws and since there is no federal jury law, each province is allowed to completely dictate the structure of their jury. Citizens on Call, supra note 4; Ivković et al., supra note 1, at 4.

[19] Hans, supra note 17.

[20] Caitlyn Scherr, Chasing Democracy: The Development and Acceptance of Jury Trials in Argentina, 47 U. Mia. Inter-Am. L. Rev. 316, 345 (2016).

[21] See generally Lee J. Curley et al., Cognitive and Human Factor in Legal Layperson Decision Making: Sources of Bias in Juror Decision Making, 62 Med. Sci. & L. 206 (2022).

[22] Hans, supra note 17, at 484.

[23] Scherr, supra note 20.

[24] Ivković et al., supra note 1.

[25] Citizens on Call, supra note 4.