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Manus haec inimica tyrannis.

Wednesday, May 23, 2018

A Worthwhile Sacrifice?

In my previous post I narrated my experience with jury selection. I took especial care to emphasize the repeated attempts by judges and clerks alike to convince us that the sacrifice we were making as jurors and potential jurors was a noble one. I ended by proposing to reflect on whether it was a worthwhile one. I offer the fruits of my enquiry are below.

A Just-So Story

Once upon a time, long ago, the great majority of people lived on farms or in very small villages, where everyone knew everyone else. Back then, in this rural world, your neighbours didn’t just know your name. They knew your “business”. And there was a good chance you were related to most of them in some way.

In this old-timey world, everything was intimate, but intimacy didn’t mean that everything was peaceful. Disputes can sometimes be all the uglier for being between relatives. Often there was a local court to deal with things, but sometimes it fell under the jurisdiction of Crown courts. Indeed, over time, the Crown came to absorb more and more of this local legal business (the law dispensed in these courts has come to be called “the common law”), as manorial courts fell into disuse. However, the Crown’s judges usually didn’t live in the village or district where a case arose, but rather travelled on circuit from place to place.

Not being from the district, these judges could not be expected to know the local facts and details pertinent to a case, such as whether Blackacre farm had been in the possession of the Stiles family since the reign of King Richard I, or whether young John of Stiles had reached the age of majority. Perhaps a local old-timer remembers that young John was born during the great wind storm of – when was it? – at Blackacre, which his father owned at the time. Another old-timer remembers that the said storm occurred in the third year of Richard’s reign (1191), etc.

Perhaps no single person in the district would know these things. But at least some from among a group of a dozen or so of them probably would. The judge would be the expert on what the law was, but this group of a dozen locals would be the experts on what the relevant facts were. Once the facts were determined, it was the judge’s job to apply law to facts.

(Actually, the last statement is a mischaracterization. To be more precise, each party to the case would state their version of the relevant facts. Then the judge would instruct this group of locals on the law: if the jury finds the facts to be X, then the law says the jury must find for A. In this sense, the common law surprisingly has much in common with the old Roman formulary system.)

In this just-so story, an institution such as a jury makes sense. So here is one justification for the jury system: Juries possess the expertise to determine the facts of a case.

If this justification once held water, it doesn’t anymore. We live in a very urbanized society, what Friedrich Hayek referred to as a “Great Society”. In this society, my knowledge of my neighbor doesn’t extend much beyond her name. I know little about her “business”, and I know less about her personal history or circumstances. And I really know nothing about my fellow jurors.

Indeed, so far have we drifted from this original purpose of a jury, that now jurors are specifically excluded from serving if they have any relevant personal knowledge of a case or its parties. In other words, in order to avoid any apprehension of bias or conflict of interest, we now in part select jurors for their very ignorance of the facts of a case.

“But all is not lost,” the defender of the jury system might say. “We take a group of people selected at random, and together they ‘find’ the facts of a case. They decide which version of the facts presented seems most plausible to a group of people of average intelligence. And the randomness of their selection ensures that they embody the standards – moral and critical – of the average person. To use the famous legal expression, they embody the wisdom of ‘the man on the Clapham omnibus’.”

There are at least two problems with this. First, the process of jury selection is far from random. The system of voir dires and peremptory challenges means that jurors are really selected for any number of traits and characteristics, among which are rarely if ever included intelligence or “reasonableness”. Second, unlike in our just-so story, in a modern “Great Society” neither the judge nor the juror has any special expertise with regard to the facts. Yet, we must have someone act as the arbiter of what is the case. Let us drop our first objection for the moment and assume that the jury is randomly selected and therefore of average intelligence and “reasonableness”. We therefore leave it to them to be our arbiters of fact. Now I ask, why should we settle for average? In what other sphere of public life is intellectual mediocrity regarded as a positive virtue, even a qualification for office? Would we not be better served by having the facts decided by someone of above-average intelligence? And if it is safe to assume that an educated and trained judge is of above average intelligence, why not have the judge decide both law and facts, thereby dispensing with juries altogether?

A Bulwark against Tyranny

Here is another justification that has been offered for the jury system: It acts as a barrier to despotic or corrupt action by the Crown through its judges. Let us separate these two things, despotism and corruption, for we are really dealing with two different arguments.

Worries about judges acting despotically have not really been a thing for a long time. One does occasionally hear complaints about judges “making law”. Sometimes this is a valid criticism. For instance, I personally believe that Canada’s Supreme Court justices have been our unofficial legislators on constitutional matters since about 1982, issuing decisions which, over time, have mounted up to a body of jurisprudence that makes a mockery of our Charter of Rights and Freedoms. No sane person not blinded by leftist ideology can look upon the Court’s post-Charter thinking on collective bargaining or group rights and call it good. Indeed, it has got to the point that I now favour scraping the Charter altogether and bringing back a suitably amended version of Diefenbaker’s perfectly sensible Bill of Rights (1960). Though it would probably be only a matter of time until the justices made a mockery of that too.

But I digress. Yes, courts do occasionally overstep their bounds, often with public support. But judges do not throw people into dungeons indefinitely because they don’t like the tone of their voice or the look of their face. They don’t inflict savage punishments for minor infractions, nor impose penalties not provided for in law, and not without due process. Blatant malfeasance by judges is punished with removal from the bench. They are subject to high professional standards and scrutiny. As much as I sometimes disagree with their judgements, there are no judge-despots in this country. And since they no longer serve or are paid at the pleasure of the sovereign, and are only really removable for malfeasance or incapacity, judges in our system tend to make poor servants for potential despots. We have an independent judiciary.

Are there corrupt judges? That’s harder to say, since unlike despotism, corruption tends to avoid daylight. But again, they serve in a position that is relatively secure, well-remunerated, and commands great respect. A judge would have to be short-sighted and greedy indeed to potentially give all this up for a mere bribe. The question here really should be, is it easier to bribe a judge than a juror? I suspect the answer must be “no”.

Here it might be objected that although it may be easier to bribe a juror than a judge, bribing twelve jurors is another matter. Perhaps. But consider this: the requirement for jury unanimity means that an accused criminal really only needs to bribe one of them. In any case, if a panel of jurors is really a safeguard against corruption, then why not use a panel of judges, as is done in many European systems?

Of course, corruption doesn’t just come in the form of bribes. Instead of such carrots, a corruptor may employ sticks, i.e. intimidation. Here the question should be, is it easier to intimidate a judge or a juror? I think the answer is obvious. For reasons outlined above, a judge with social prestige and the full might of the state behind her will likely be harder to intimidate than a powerless nonentity like me picked from the street at random.

Between the arguments I have offered so far and the earlier description of my experience in jury selection, with all its lavish waste of time, money, and human resources, I flatter myself in thinking that you too, Dear Reader, are beginning to see the jury-as-pillar-of-democracy and jury-as-noble-sacrifice tropes for what they are — namely, pious bullshit. In any case, I’d like to end with a few additional observations on the jury system made by economist Gordon Tullock (1922-2014).

Tullock on Juries

Regarding the supposed randomness of jury selection, Tullock notes that most jurisdictions (including my own) draw their pool of names from voter registration lists. However, in the US only about 60% of eligible voters are registered. And the unregistered are disproportionately poor or visible minorities (Tullock 2005:427).

Then there are the excuses for not serving, which tend to be most used by “intelligent jurors with a significant opportunity cost of time” (p. 428). In other words, time is money and those whose time is worth more of it will find ways not to serve. On average the wealthy and more intelligent are more likely to avoid serving on a jury.

And then there are those voir dires and peremptory challenges, which, besides being costly, are “devastating for any notion of ‘a jury of one’s peers’” (ibid.).

The aggregate effect of all this on the resultant selection is that

“Juries typically consist… of individuals of below average intelligence, of below average income, and of below average productivity. They are made up disproportionately of the old, the lame, and the unemployed…. [They] tend to be extremely non-random, unusual representatives of the population at large.” (ibid.)

They will also tend to be ignorant of the law, less able to understand instructions, and are further kept in the dark by arcane rules of evidence.

Tullock makes much of this issue of intelligence, perhaps more than I would. I had suggested earlier that a jury selected at random will result in a jury of about average intelligence. Tullock’s view on this is much more pessimistic: not only is selection not truly random, but it perversely selects for below average intelligence and below average knowledge! As he notes,

“The average person is of average intelligence and average information. The jury process begins by removing from its sample anybody who is well informed with respect to whatever it is the jury is supposed to look into, thus ensuring ignorance. The jury has no strong economic motive to work hard and understand the material presented to it.” (pp. 349-350)

If you have any compelling arguments for preserving this archaic, onerous, ineffective, and expensive system, I’d love to hear them.

Works Cited

TULLOCK, Gordon. Law and Economics (Selected Works, Vol. 9). Charles K. Rowley (ed.). Indianapolis: Liberty Fund, 2005.