Trial in George Floyd's Death Shows Jury System's Flaws
(Bloomberg Opinion) -- Jury selection in the criminal trial of Derek Chauvin for the murder of George Floyd is highlighting one of the legal system’s absurdities: its aspiration to choose jurors who are not only neutral but actively uninformed about major public events.
The logic is understandable. We don’t want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand.
Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody.
When you come across something in the legal system that genuinely appears to make no sense, the reason is usually history. The criminal jury in the Anglo-American tradition used to have a very different purpose, as I learned from the legal historian John Langbein. The medieval purpose of a jury of peers drawn from the vicinity was to make sure that the jury was full of local people who already knew the facts of the cases they would hear.
That’s right, the jurors were picked not because they were ignorant of the facts but precisely because they could be expected to know what was going on. In an era before modern police or criminal investigation, juries were proxies for detectives. Judges often came from far away, appearing only occasionally to hear cases in different parts of England. They certainly had no idea of the accused’s guilt or innocence. Juries were needed to tell them who had done what.
Over time, the jury gradually changed from a body that knew the facts already to a body intended to judge the facts afresh. Right away you can see that there was arguably less need for a jury once its function was judging rather than possessing local knowledge. Judges, after all, are good at judging — possibly better than a random cross-section of the public. But the framers of the U.S. Constitution, following British legal thought of their era, considered the criminal jury to be a guarantor of freedom — a “palladium of English liberty,” according to William Blackstone, the favorite English legal writer of the late 18th and 19th centuries. They enshrined jury trials in the Seventh Amendment to the U.S. Constitution.
Under the influence of Chief Justice Earl Warren, the U.S. Supreme Court gradually expanded the rights of defendants by limiting the kids of evidence that could be put before the jury — a progressive reform, but one that has led to a final twist in contemporary jury illogic.
Under these reforms, for example, judges can keep from the jury certain information — like the fact that a crime victim has previously been arrested. That’s one fact about Floyd that the judge in the Chauvin case is being asked to exclude. The rationale is reasonable: It could influence how the jury thinks about the case against Chauvin. Similarly, the fact that the city of Minneapolis has reached a $27 million settlement with Floyd’s family could also shape the jury’s thinking. Again, judicial exclusion might be the right answer.
The fundamental problem is that anyone who reads the news may have come across these facts already. In theory, knowing this information shouldn’t bar anyone from the jury, provided that the potential juror can credibly say that she will keep an open mind. But in practice, a judge who wants to avoid reversal on appeal has a strong incentive to exclude jurors with relevant prior knowledge — knowledge they might share with fellow jurors, and that is not supposed to provide a basis for a decision.
The upshot is that it may be appropriate to take a fresh look at jurors’ level of knowledge, with the full recognition that jurors bring all kinds of prior biases to hearing cases — not just factual information.
It’s one thing to keep jurors in a bubble once the trial has begun. It’s quite another to choose jurors who have chosen to live their lives in self-imposed bubbles. Those may not be the cross-section of the public whom we want to entrust with our most high-profile criminal cases, the ones where justice is on the line not only for victims and defendants, but for the country as a whole.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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