A Response to “The Uncivil Jury”

Last week, washingtonpost.com published a series of 5 articles written by By Prof. Renee Lettow Lerner on “the uncivil jury.”  The first installment–The uncivil jury, part 1: Americans’ misplaced sentiment about the civil jury addresses a “misplaced” loyalty in the American jury system, judge’s dislike in presiding over civil jury trials, the allure of arbirtation, and the necessity to find alternative methods for dispute resolution.

In reponse to Professor Lettow Lerner’s Seventh Amendment positions:

The civil jury system is a trademark of democracy and an important defense of freedom. Civil juries are the conscience and the voice of communities—crucial safeguards over dishonesty, corruption and neglect. With the exception of military service, juries are the one arena where average citizens can participate directly in government and democracy and have an impact on the future.

When a right is exercised or invoked less frequently due to social and economic forces, should we follow the trend downward, take the path of least resistance, find an alternative, and eliminate the right altogether? England, Australia, New Zealand, and Canada prohibit jury trial, and hold bench trials in almost all civil cases; these countries found bench trials to be much more efficient and “were not hampered by constitutional rights to jury trial.”

What if we applied such logic to the rest of the Bill of Rights? Wouldn’t criminal prosecutions be much more efficient if law enforcement were not hampered by the Fourth Amendment? Wouldn’t it be much easier for the government to discourage dissent if only it were not hindered by the First Amendment?

“Judges don’t like presiding over civil jury trials.”  Not all judges, however, share this sentiment.

  • Former Supreme Court chief justice William Rehnquist once noted, “The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a ‘safeguard too precious to be left to the whim of the sovereign.’”
  • Jeffrey Colbath, chief judge of the 15th Judicial Circuit recently wrote, “Our jury system is the foundation of our democracy. Our parents, grandparents, and great-grandparents — all the way back nearly 239 years to the birth of our great nation—have been called to courthouses in every county and state across our country to serve as jurors. Without the jury system, disputes would still get resolved. But we might not like the method that could evolve, for example, bureaucrats, behind closed doors, making decisions subject to personal agendas, subject to suspicion, subject to abuse.”
  • Retired Superior Court Judge Michael I. Jeffery penned, “I have seen the great dedication of jurors, examining the issues for a considerable time and staying into the night if they feel it is necessary. When the jury’s decision is announced, one can see how the citizens have carefully evaluated all the information they received and how they have reached a reasonable result based on the facts and the law. When this happens, our 800-year-old principles still shine brightly today.”

Let’s assume for the sake of argument that judges are not content with jury trials—is that really a reason to eliminate this fundamental constitutional protection? Some judges may not be fond of defendants who invoke their right against compulsory, testimonial self-incrimination, but does that mean should we reconsider the Fifth Amendment and search for alternative means to obtain testimony from criminal defendants?

Infringing on constitutional protections because they are not popular with some judges is a lot like raising blood alcohol limits because they are not popular with drunk drivers.  It sounds like a quick fix, but it’s a patently erroneous solution to a significant problem.

Save Our Juries Co-Chairs

Mark P. Robinson, Jr.
Gilbert A. Dickinson
Lewis R. Sifford
Steven D. Susman
Harry T. Widmann

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