A Reconsideration of Trial By Jury
By Wendy McElroy
[email protected]
Exclusive to The Libertarian Enterprise
In February 1997, Laura Kriho was convicted of criminal contempt
and fined $1,200 for failing to volunteer unrequested information
about her political beliefs during jury selection for a trial
concerning methamphetamine possession. Among the specific information
Kriho 'withheld' from the Colorado court was her familiarity with the
doctrine of jury nullification. According to this doctrine, a juror
can nullify a law -- that is, refuse convict a defendant despite
instructions from a judge -- if she believes the law is unjust or that
the application of the law in a specific instance is unjust. Jury
nullification had been estab- lished in common law since 1670 when the
English jury in the trial of William Penn refused to convict him for
preaching Quak- erism, and were imprisoned for doing so. In response,
the English high court ruled that juries must be able to reach their
own decisions without fear of punishment by the court. In 1735, jury
nullification was affirmed in America when jurors refused to convict
the publisher John Peter Zenger for printing material critical of the
governor of New York.
Libertarianism tends to embrace jury nullification as a crucial
aspect of trial by jury -- the right to have your case tried by a
randomly chosen group, usually numbering twelve. This 'right' is
championed by The Fully Informed Jury Association (FIJA), popular with
modern libertarians. The 19th century tradition tended to embrace the
jury system as well. According to Benjamin Tucker, editor of the
pivotal 19th century individualist anarchist periodical Liberty, "The
truth is that jury service is of much higher importance than the right
of suffrage; but our newspaper wiseacres and reformers are not aware
of that..." The venerable 19th century legal theorist Lysander
Spooner is commonly considered to have penned the definitive position
on the jury system in his treatise Trial by Jury, the first chapter of
which is entitled "The Right of Juries to Judge the Justice of Laws."
Nevertheless, there are reasons to be uncomfortable with trial by
jury. Although members of society have a right and, perhaps, a duty to
judge the propriety of the laws under which they live, trial jury
means more than this. In 1804, Supreme Court Justice Samuel Chase
declared, "The jury has a right to judge both the law as well as the
fact in controversy." In other words, the jury weighs not only the
propriety of the law, but it sits in judgment on a human being who is
the defendant as well. It judges the man and the law.
Yet, under libertarian theory, no collective entity -- no
government, no group of twelve people -- can claim a right unless such
has been assigned to it by an individual, because all that exists are
individual rights. It was on this very basis that both Tucker and
Spooner argued against the legitimacy of a government established
through anything less than a unanimous vote. How, then, does the
collective entity called a jury come to possess the right to sit in
judgment on a dissenting individual, whom it may well sentence to
imprisonment or to death? It cannot be argued that the dissenter has
relinquished his or her rights due to having aggressed, because the
very point of assembling a jury is to assess whether aggression has
occurred. Until the verdict is rendered, the defendant must be
presumed innocent. Thus, the question returns: how can a collective
entity have a right that a dissenting individual either does not
possess or has not assigned?
The 16th century classical liberal John Locke dealt specifically
with this problem. Locke, believed that the need to protect the
property of 'life, liberty, and estate' in society was what led men to
form a Government. In exchange for government's protection, men
willingly relinquished the right to adjudicate their own disputes --
that is, the right to try their own cases in court. Thus, trial by
jury evolved as a means to resolve a Hobbesian state of nature (the
war-of-all-against-all) so that co-operative society could exist.
Locke also developed a doctrine of tacit consent which bound even
those who had not explicitly agreed to Government. That is, each
person in society remained free to withdraw his implied consent by
withdrawing back into a 'state of nature' with relationship to other
people. As long as the person chose to stay in society, however, he
was deemed to have consented to its jurisdiction, including its right
to adjudicate disputes. Within modern libertarian theory, the doctrine
of tactic consent -- of people tacitly relinquishing inalienable
rights through silence or inactivity -- has not been popular.
In Trial by Jury, Lysander Spooner did not spill a great deal of
ink addressing the problem of how twelve people came to possess what
he acknowledged to be an individual right: namely, the right of an
individual to try his own case. In 1889, "Free Political Institutions:
Their Nature, Essence, and Maintenance" -- advertised as "an
abridgement and rearrangement" of Trial by Jury, prepared by the
anarchist Victor Yarros -- began to run serially in Liberty. Yarros
considered the question of how juries acquired the right to adjudicate
cases to be so important that he repositioned text from Spooner's
concluding chapter to the very beginning of the new work.
Yarros' "rearrangement" began with a statement of what Spooner
called "free government": "The theory of government is that it is
formed by the voluntary contract of the people individually with each
other." From this observation, Spooner had contended that free
government involved the belief that certain laws or conditions would
be so obviously beneficial that all members of society would
explicitly agree to them and to being taxed to support them. Clearly,
Spooner considered trial by jury -- which he called 'trial by country'
as opposed to trial by government -- to be one of these overwhelmingly
beneficial conditions to which all of society would agree. Indeed, the
bulk of Trial by Jury is a rather persuasive presentation of why this
legal procedure is and has formed a grassroots protection against
oppressive government.
Yet Spooner's implied argument that all members of society would
embrace trial by jury was refuted in the debate on this issue that
ensued within the pages of Liberty. Adolph Herben, writing under the
pseudonym of Basis in an article entitled "The Guiteau Experts",
declared that he would rather have his case tried by experts than by
twelve men who would be ignorant of important technical matters: if he
had been Guiteau, he would have preferred experts on medical insanity.
Basis considered it to be absurd to hang a person on the "mere opinion
of twelve ordinary men". After all, a jury had convicted demonstrably
innocent anarchists to death in the infamous Haymarket incident.
In Free Political Institutions, Spooner had anticipated precisely
Basis' objection about jury ignorance, and answered, "the powers of
juries are not granted to them on the supposition that they know the
law better than the justices, but on the ground that the justices are
untrustworthy, that they are exposed to bribes, are fond of authority,
and are also the dependent and subservient creatures of the
legislature ... " As clearly as this statement may answer any
objection to juries trying the law, it does not address the problem of
how twelve people can rightfully try and punish another human being,
especially someone, such as Basis, who openly protests the procedure.
The Chicago radical George A. Schilling added his perspective by
arguing: If trial by jury was based on the right of every individual
to judge the law, did not juries -- in practice -- rob the individual
of the very right upon which they drew for justification?
The egoist Steven T. Byington contributed an original article on
'trial by jury' to Liberty, which began by quoting from an editorial
run by the "Times of Natal" -- an English speaking country in which
racism made 'trial by jury' for black defendants unjust. Moreover,
judgments could not be obtained against whites who committed crimes
against blacks. Byington claimed that in the presence of such
prejudices, 'trial by jury' became an instrument of injustice. The
prejudice did not even need to be widespread for it to have a
disastrous impact on an anarchistic, or free market, jury system. "If
only ten percent of the people were of this sort, more than sixty-four
percent of the juries would include one or more of these men to
prevent a conviction. In order that there should be an even chance of
twelve men taken at random being unanimously willing to judge
according to certain principles, it is necessary that there be not so
many as six per cent of the population who reject those principles."
Byington raised a further and intriguing objection to trial by
jury based on "the need for certainty in some kinds of laws, where it
has been reasonably said that certainty is sometimes more important
than justice." For example, some publishers pre- ferred there to be a
clear standard of obscenity by which they could predict the legality
of an article rather than to depend on the unpredictable decision of
twelve men. If, as Spooner had suggested, there were conditions and
laws so beneficial that all people would assent to them, trial by jury
obviously did not fit into this category.
Perhaps the most interesting of Byington's objections to trial by
jury, however, was a procedural and practical one. He maintained that
the voluntary defensive associations which would arise in an
anarchistic society would be unlikely to adopt the jury system because
it was clumsy and expensive. A defensive associate who preserved the
jury system would operate at a distinct disadvantage, probably having
to charge considerably more than its competitors. He speculated on how
justice would be provided in a "society where things are done on a
business basis." Byington wrote, "[D]efensive associations will have
their judges, and their treaties as to the method of arbitration when
two associations are on opposite sides of a case, and these tribunals
of one or three professional judges will settle all cases where some
one does not distinctly demand a jury. I suppose a case will almost
never come before a jury except on appeal ... "
Moreover, being practical men of business, those who ran the
defensive associations would probably institute a policy stating that
cases "clearly identical with ones" previously adjudicated required no
jury. "If any defensive agency persistently followed the contrary
policy, of demanding juries in such cases whenever its clients asked
for them, it would go bankrupt with litigation ... "
Conclusion
From the preceding analysis, it is obvious that trial by jury is
not necessarily a natural issue for libertarians to champion. Whether
a jury system appears desirable seems to hinge on the observer's
viewpoint. If the jury is seen to sit in judgment on the law, it may
well be an effective strategy against oppressive government. If the
jury is seen to sit in judgment on other and unconsenting human
beings, the procedure seems to be at odds with libertarianism because
it is difficult to understand where a collective entity derives such a
right if it is not assigned by the individual.
Perhaps Byington resolved the debate by observing that, as a
procedure, trial by jury had not evolved within a "society where
things are done on a business basis," and any system of justice that
did so evolve would be unlikely to embrace it. Moreover, to the extent
a free market justice system existed, the jury system's current
function of mitigating oppressive laws might lose much of its value.
In place of this strategic advantage, the disadvantages of trial by
jury might loom large: its expense, the unpredictability of its
verdicts, the problem of dissenting defendants, the widespread
tendency toward prejudice ... In short, trial by jury may be a
procedure that can be justified only in the presence of oppressive
government. It may be object lesson in how a free market society
should not look to structures and institutions that evolved in
response to oppression, but seek instead to sculpt their own.
A contributing editor to Liberty
magazine, Wendy McElroy has written widely on feminism beginning in 1983 with
Freedom, Feminism and the State
(CATO) and in 1995 with
XXX: A Woman's Right to Pornography
(St. Martin's Press). Her articles have appeared in such diverse
publications as National Review and Penthouse. Her "day job" is
writing and editing documentaries, some of which have been recorded by
Walter Cronkite, George C. Scott and Harry Reasoner.
[And don't forget her most recent book:
The Reasonable Woman: A Guide to Intellectual Survival
-- The Webmaster]