In every "trial of the century" (and each year seems to produce a few), the national news media waits for "the verdict." It is the culmination of the energies of the lawyers, the court, and the observers and can be the most anticipated moment in a case. This frenzy of anticipation has now turned toward the jury in the George Zimmerman murder trial in Sanford, Florida.
Criminal trials generate dramatic tension. Lawyers battle witness by witness, argument by argument, to convince a jury of the rightness of their cause. For the parties not privy to the deliberations in the jury room, there is no more heart-stopping moment than the announcement of the verdict. The foreperson stands up. A hush fills the room. Usually, jurors keep their facial expressions impassive, although occasionally a smile or tear betrays them. Then the judge turns to the foreperson and asks, "Has the jury reached a verdict?" When the foreperson responds, "Yes," everything stops and all eyes turn toward the jury.
The verdict is the final answer--a resolution to the problem that shattered the community order. It represents the moment of accountability. Derived from French and Latin, the word "verdict" means "to say the truth" or "a true saying." But in a constitutional sense, there is a different truth at issue. In the adversarial system, the truth gets measured against the standards of proof and legal instructions given to jurors. It is not about the facts of the world outside, but what evidence was produced in court. For those not sequestered from the Zimmerman trial, we know what was excluded and why. But the jurors only know what was introduced in court. Other legal systems have chosen to adopt an inquisitorial system, where judges act as prosecutors as well as fact finders to investigate what really happened in the case. The American choice of an adversarial process with a jury took a different path. We do not ask jurors to investigate the truth, but instead to evaluate the evidence against the standards of proof.
Can anyone really say what happened that night in Florida? We have our views, but those views are no better than anyone else's opinion. Many times it is just not possible to find out what really happened. That's why we have juries. In fact, while emotionally unsatisfying, the burdens of proof are supposed to lessen the burden of judgment for jurors. Instead of being weighted with the sometimes-impossible task of figuring out what really happened, jurors are asked only to measure the evidence produced against the standard of proof. In criminal cases, prosecutors have a job to do, and most welcome the burden. They are bringing their case because they believe in the evidence. The jury, then, merely evaluates what the government has produced and decides whether the evidence is convincing beyond a reasonable doubt. As Justice Scalia has written, the jury acts "as a circuit breaker in the State's machinery of justice."It holds the state accountable for trying to take the life or liberty of an individual.
By purposeful design we allow jurors to make the hard calls to balance law and fairness in deciding the facts. This is not a weakness in the jury system, but rather the reason for the jury system. As Judge Learned Hand recognized:
The institution of trial by jury--especially in criminal cases--has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty--to say nothing of his life--only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical considerations. . .
At the same time, the jury acts as the community conscience, holding the defendant--a fellow community member--accountable for his or her criminal actions. As Judge David Bazelon once stated, "The very essence of the jury's function is its role as spokesman for the community conscience in determining whether or not blame can be imposed." Juries are considered instruments of public justice. A jury's condemnation of an individual carries greater weight because it comes from the same community. A verdict symbolically represents the community view.
How do we know this jury verdict system works? One of the most amazing things about a jury trial is that in every single case, we know one side will lose. Both sides walk into court knowing at the outset that one side will definitely lose, yet they still show up and face the jury verdict. The genius of our jury system was to set up a mechanism so that both sides believe that they have a fair shot at winning the case, incentivizing participation in the process.
Of course, because one side will lose, some observers, pundits, and participants will be disappointed. Many may loudly denounce the jury and the jurors. But, the test of the system is how you feel now - before the verdict. If you have faith that the jury will do the "right thing" whatever that may be (guilt, innocence, or compromise) then you have faith in the legal system. It is important to keep that faith in mind as we await the next trial of the century (and the next).
This article is adapted from the author's 2013 book Why Jury Duty Matters.
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