"Trial by jury is not a subject on which it is possible to say anything very novel or very profound," wrote the British jurist Lord Devlin,1 and I do not expect to contribute much to the subject except to connect what has already been written to my own experience as an alternate juror in a New York State criminal case this month.
Jury trials began in 13th-century England after the Church outlawed trial by ordeal, and evolved haphazardly into their present form from then. Jurors were originally expected to have first- or second-hand knowledge of the crime itself, and their right to render a verdict without the judge's interference was not well-established until the 17th century. Jury trials were brought to America along with the rest of the English legal system. They are today practiced chiefly in the English-speaking world.
In the United States, all defendants in criminal cases, petty offenses excepted, have the constitutional right to a trial by jury, but few exercise it: as many as 95% of criminal cases are settled via guilty pleas.7 Some proportion of the remainder are resolved via a bench trial, i.e. a trial before a judge.
My own encounter with the American jury trial began on a Tuesday morning when I and thirty-nine other prospective jurors were ushered into a Lower Manhattan courtroom by an officer of the court. The judge, prosecution, and defense were all already present; the judge read the charges and the defendant pleaded not guilty. Then began voir dire, the process by which the members of the jury are selected from the pool of prospective jurors.
The judge questioned us first as a group and then individually. Those whose answers suggested the potential for bias or a conflict of interest were dismissed. After the judge was satisfied, the prosecution and the defense each had the opportunity to question us. We were then dismissed to the hallway for a few minutes, and when we returned six of us were chosen and sworn in.8 This rather lengthy vetting process – and in difficult cases it may last much longer – is unknown in England, where twelve members of the jury are simply selected at random.
About the course of the trial itself I can add little that is not already familiar to you from film and television. Witnesses were sworn in, questioned, and cross-examined. Attorneys raised objections which the judge sustained or overruled. The jury listened impassively.
Despite being the ultimate judges of the facts of the case, we were not given the opportunity to question the witnesses. This curious omission is not universal. Some jurisdictions allow the jury to submit written questions to be read by the judge, with apparently good results.6 We were, at least, allowed to take notes, which is itself apparently a recent innovation.
In England, judges "sum up" the case before sending the jury to deliberate. This practice is less common in the United States, where the final statements are left to the defense and prosecution, and the judge merely instructs the jury on the law.
As an alternate juror, I was dismissed at the conclusion of the trial and can give no account of the deliberations.
Per Ramos v. Louisiana and longstanding tradition, jury verdicts in criminal cases in the United States must be unanimous. Failure to achieve a unanimous verdict – whether for conviction or acquittal – results in a hung jury, and the prosecution has the option of retrying the case.
Juries give no reasons. Their deliberations are secret and their verdicts are final. Although guilty verdicts may be appealed, the appellate court reviews whether the trial was conducted fairly, not whether the jury's decision was justified.
If it were not the norm for criminal cases to be decided by unanimous decision of a panel of twelve untrained strangers, it doubtless would seem a peculiar if not outright reckless proposal.
Its defenders consider it a bulwark against tyranny – Lord Devlin called it "the lamp that shows that freedom lives"2 – while its detractors find it unreliable and prejudiced – the "apotheosis of the amateur" compared to the professional judge.[^kalven-zeisel2]
A massive survey of American jury trials in the 1950s found that the verdicts of juries largely concurred with the private judgments of the judges themselves,3 though a later British study reported many instances of verdicts – both acquittals and convictions – that the other trial participants found baffling.5
My abbreviated experience leaves me with little to offer on such weighty questions, except to say that, however imperfect a system it may be, I could not help admiring the seriousness with which the question of a man's guilt and thus his freedom was considered.
Devlin (1978), p. 3 ↩
Devlin (1978), p. 164 ↩
Kalven & Zeisel (1966) ↩
Kalven & Zeisel (1966), p. 5, quoting Dean Griswold of Harvard Law School ↩
Baldwin & McConville (1979) ↩
Morrison (2010), pp. 13–14 ↩
Little & Simpson (2024) ↩
The rest of the jury – twelve main jurors and three alternates – were selected in a separate session, which I did not witness. ↩