Among the list of colonial grievances against King George III in the Declaration of Independence was the charge that he was responsible “For depriving us in many cases, of the benefit of Trial by Jury.” The Founding Fathers considered this a “sacred” right. Yet recently explaining the Sixth Amendment right to effective assistance of counsel in the plea bargaining process (in criminal cases), SCOTUS Justice Kennedy cited the fact that today 97% of all criminal convictions in federal courts and 94% of all criminal convictions in state courts were the result of plea bargains—not trials. He commented that today’s criminal justice is “for the most part a system of pleas, not a system of trials.” Massachusetts trial statistics also reveal a steady decline in the number of jury verdicts in civil cases over the past century (over 3,000 in 1925 becoming just 586 by 2003, even as the population boomed). Other state courts show a similar trend. So if jury trials are relative rarities in both civil and criminal proceedings, are jury trials really needed anymore?
The continued decline in civil trial jury verdicts is the result of many factors that include increased cost of litigation, greater use (either voluntarily, or due to contractual requirement) of alternative dispute resolution services such as mediation and arbitration, and the increased average duration of trials. The even starker decline (indeed, near eradication) in criminal jury trials is traceable, at least in part, to severe sentencing guidelines that expose defendants to harsher sentences if they lose the trial. Yet those who applaud the decline of the jury trial—finding its application impractical—should remember that the American jury trial system serves more than litigants (and their lawyers). Despite its relative decline as a means of resolving civil disputes and criminal prosecutions, it remains an important vehicle for self-government. Regarding the jury as a political institution, Alexis De Tocqueville, admiringly observed that it “invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge towards society, and the part which they take in the Government.” Its most important consequence, he added, is its positive effect on the intelligence of citizens. Likening it to “a gratuitous public school ever open,” De Tocqueville noted that in a jury trial jurors learn about the exercise of common rights and governing law, all taught by the judge, the lawyers and even the parties themselves. Moreover, “by obliging men to turn their attention to affairs which are not exclusively their own,” he wrote, “it rubs off that individual egotism which is the rust of society.” He was right, and so were the Founding Fathers. // Michael Racette