Legal Magic and Jury Instructions

Democracy

I agree that I owe some engagement with the idea that in a democracy, ordinary people from all walks of life should have a practical role in the administration of justice.

I don't understand what this essay is. What's its central idea? With whom are you agreeing or disagreeing? You didn't rewrite the last draft in light of my comments, you slid a different, and apparently un-outlined new text in between the previous marks, and gave it this not very helpful beginning.

My first thought was that juries might serve as a counterweight to oppressive government authority or an oppressive majority. They can ignore legal rules that conflict with common sense or popular sentiment, refuse to convict revolutionaries, and generally frustrate prosecutions. Joseph Story made this point, “The great object of a trial by jury in criminal cases is, to guard against a spirit of oppression and tyranny on the part of rulers...” (Joseph Story, Commentaries on the Constitution 3:§ 1773—75) Classic examples of this rationale include Northern jury refusals to convict under the Fugitive Slave Act and later defiance of Prohibition statutes. This argument relies on a notion of law as an expression of an ordinary person’s moral principles.

I should think here "classic" means "recent." Classic examples would be hundreds of years less contemporary. The citation is a poor one, particularly because you didn't read Story, you just copied the citation out of one of the other secondary sources (themselves poorly selected) that you used.

A second broad justification focuses on the jury service’s effect on the jurors and democracy rather than the outcome of the trial. Supporters of this view argue that juries allow citizens to engage in face-to-face debates, participate directly in government, judge other citizens’ conduct, and become familiar with the day-to-day workings of the justice system. More broadly, this participation gives jurors a sense of political purpose. It gives citizens “confidence about their ability to influence political decisions and thus increases their willingness to participate in politics even after the end of their jury service. Face-to-face deliberation thus reinforces the very skills and qualities on which it thrives.” (Iontcheva, Jury Sentencing As Democratic Practice)

What's being justified?

The unique nature of juries provides advantages over other forms of civic participation. Under the traditional requirement of unanimity, no group can win the debate by outvoting others. Arguments must flow across group lines and convince a number of diverse people. As Robert Burns notes, “ideally, voting is a secondary activity for jurors, deferred until persons can express a view of the evidence that is educated by how the evidence appears to others.” (Burns, History and Theory of the American Jury We, the Jury the Jury System and the Ideal of Democracy. by Jeffrey Abramson)

Why these sources? They're not particularly important or analytically useful.

I would question this argument on efficiency grounds. Drawing jurors out of the community and placing them in court for weeks on end is expensive, does not reach a large number of people, and can even promote contempt for the duty and the justice system as a whole. Education, which is almost universal and already in place, provides a far cheaper and perhaps more effective substitute for promoting and enhancing civic engagement.

What's the point of this argument? How is it attached to a larger thesis or central idea animating the essay?

The final, and I think most convincing; argument holds that juries are far more representative than any alternative system. A random cross section of people chosen from driver’s registration lists is almost invariably more diverse than either the state or federal bench. Its will is thus easier to equate with that of the community. This tendency is exemplified by the majority opinion in Ballard v. US, which extolls the necessity of “an impartial jury drawn from a cross-section of the community.” (264)

This justification makes our particular focus on the blind selection process confusing. If we acknowledge that we cannot justly exclude members of racial minorities from juries at the selection stage, why should we allow an all-white or all-black jury in the trial itself? Have we acknowledged that there is considerable value to a defendant in having a fair chance to get a diverse jury, but allowed for the benefits to accrue based on chance?

Exclusion and the Death Penalty

The prospect of ending the exclusion of jurors who oppose capital punishment from capital cases raises another interesting question on the purpose of juries. If we allowed those who oppose capital punishment in, wouldn’t certain juries cease to represent the majority's consensus on capital punishment? Wouldn’t the sentence depend on the random selection of jurors assigned, rather than any aggravating or mitigating factors assigned in the law? Isn’t a legislature actually more representative? Wouldn’t the inclusion actually make the process less democratic?

What has this collection of rhetorical questions to do with anything that came before? How is this non-conclusion related to the inexplicit central idea of the draft?

I think the gravest problem here is that the structure of the draft has dissolved, and we're left with some shards whose relation to one another, or to a central theme, has disappeared. What we need is a clear statement of a central idea in the introduction, followed by a sequential development of the basis of this idea in relation to objections or concerns that a reader might be expected to raise, followed by some development of implications about which the reader can think further for herself. The first draft had adequate structure, but was poorly argued. This draft has lost coherence, which can be restored by returning to the outline.