One of the projects that I support with research touches upon the jury. As someone with only a year of law school under my belt, my expertise on the American jury is limited - to say the least. But, as part of the American Bar Association Rule of Law Initiative, I have the opportunity to study the American jury for the benefit of another jurisdiction without this system.
Those living in a country with a judicial system that lacks independent lay participation may ask, “Why? What’s the good in the jury system?” After all, ordinary people are not formally trained in law. They may come up with adverse outcomes and misapply the law. They harbor their own biases that will inevitably weave into their verdict. I cannot say they are wrong for seeing these potential issues.
The jury seems like a nebulously democratic concept rooted in the U.S. Constitution. I personally have never asked myself why the U.S. adopted this system and why it has remained popular within our judicial system. It seems “natural” in our nation. As I began my research, articles calling out the failures of the American jury bombarded me. Scholars were noting the slow (or quick) death of the jury in the U.S. For example, some scholars point to provisions in contracts that waive Seventh Amendment rights to a jury trial. A possible reason for the waiver is that businesses feel that lay jurors generally are less sympathetic toward businesses. They do not wish to be subject to the angst of the public, so they leverage their power preemptively and void that option altogether.
On the other hand, other countries seem to be adopting the jury trial system as the American system seemingly shrinks. Japan and Korea, for example, adopted some form of lay participation in their judicial systems. The results have harked back to the democratic ideals of the jury: greater involvement of the public begs greater legitimacy for the judicial system. Public support of court outcomes increases. Argentina is the most recent case.
Though my research and work do not focus on South America, broadly, nor on Argentina, particularly, Argentina has begun to embrace jury trials. What is most interesting about Argentina is that, like the U.S., the Argentine constitution guarantees the right to a jury trial. However, the lack of enabling legislation left such a promise of jury trials unfulfilled at the federal level.
So… my research sits at an awkward point. The other country’s judicial stakeholders want to know how the strength of the American jury withstands the test of time and what benefits it has brought to the American judicial system. For all its issues, the American jury subsists, I think, because it embodies that democratic nation we see the United States as being. The jury marries the “common sense” of the public with the “common sense” of the law. I remain hopeful that the jury will remain a pillar in the American court system, but I feel the world watching its erosion.