There has been a lot of discussion in England this week about a list of ten questions asked by a jury in the trial of the wife of a now ex-MP accused of perverting the course of justice. Non-Brits, I won’t bore you with the details, but the headline is this: some of the questions revealed such a fundamental inability to grasp the task at hand that the judge dismissed the jury and ordered a retrial.
Cue national scorn and derision from many of the commentariat, left and right, in old and new media. This includes comments from columnists in the leftish Guardian and the rightish Telegraph questioning the future of the jury system itself. If people are this dim, this stupid, this clueless about the process, surely we cannot entrust decisions about people’s lives and deaths to them?
So, some questions:
1. Without reading the instructions from the judge, how many people (and how many of the sneerers) knew the answers to those question in advance? Some of them are indeed ridiculous, but how many non-specialists spotted the faults before (be honest) being told what they were?
2. Why is news about failed jury trials the exception rather than the rule? Why did barristers line up on Radio 4 to say that 99% of juries come to what they thought was a good decision?
1. Spotting the stupid from the perceptive is not as easy at it looks without expert training;
2. Because nonetheless, jury trials work almost always, fail relatively rarely.
Let’s drive that point home. Groups of ordinary people chosen at random then filtered for (a) knowledge of the case and (b) expertise about the law get things wrong about complex legal issues very, very rarely.
That random, participatory process is valuable. It is an astonishing yet rarely-remarked fact of modern life that we make life-changing decisions about our fellow citizens in such a participatory way with (relatively) few problems. Almost every other domain of life is dominated by “experts” (who disagree), markets (more or less controlled by limited interests) and, increasingly algorithms (the inscrutable written by the unaccountable). It is a rare survival of grassroots democratic practice.
And this is why I was dismayed at people like Simon Jenkins in the Guardian sneering at the abilities of his fellow citizens, on the basis of … oh, anecdotes. It reminded me of political scientists since the 1960s who, sneering at the inability of ordinary people to name every senator or correctly describe the legislative process and using that to justify the progressive white-anting of democratic rights over the last 50 years.
We are not helped in Britain and many other Commonwealth nations by rules that keep jury deliberations in camera. This makes it hard to know exactly what goes on in British jury rooms, which leaves the field open for anecdotal rants about “the time I was on a jury, my God.” But in the United States, freedom of speech rules trump such considerations, and there the academic research into juries is, with caveats, warmly embracing. I heartily commend the work of Jeffrey Abramson and, more recently a team led by Lawrence Jacobs.
Participatory institutions are far from perfect; but they are far from cretinous too, despite the headlines. Try not to believe the sneerers.