Why Do We Have Jury Trials? Are They Fair?

Twelve-man jury trials have been used for centuries in the US and UK, indeed in the UK there are reports of jury systems dating all the way back to the 11th century.

But why is it that some, if not most countries are against the concept of ‘the jury’? And, in the 21st century, with the rise of AI in the legal industry, is the traditional jury system still fit for purpose?

The US uses the 12-man (or woman!) jury model for all cases, civil or criminal, whereas in the UK a jury trial is reserved for criminal offences only. But why do we need a jury? What’s the point? Most countries seem perfectly fine without it, so why do the US and the UK persist in using the jury-system? The underlying purpose of trial by jury is the concept of fairness. That fair justice is only served via a jury of ordinary people.

In the UK, trial by jury has been around since Henry II’s reign. In the 12th century, Henry II created the jury system to help resolve disputes between landowners. Jurors then were in fact a one-stop-shop; they investigated the dispute and presented their findings to the judge and at times also decided which disputes should be investigated and which not. They were active participants in a case, not just listeners like today.

The jury system has become firmly ensconced in English law. A famous case in the 17th century, the so-called Bushel’s case, finally determined that the jury’s verdict was and had to be independent after the judge presiding over that case, jailed ‘his’ jury as he did not agree with their ‘not-guilty- verdict of the defendant. He ordered them to stay in jail until they would state the defendant was guilty. This judge’s rule created – thank goodness - outrage and the jury was freed and the independent status of any jury from then onwards was ensured. The role of the jury today is to listen to all deliberations of those bringing the legal case, the prosecution, and of those defending the person brought to justice. The jury, at the end of a trial decides if the defendant is guilty or not. The judge, presiding over the trial, will then decide the appropriate (prison) sentence.

The English settlers brought their legal system with them to the US and therefore the jury system was incorporated into the American legal framework too.

But why does Europe, for example, not have a jury system? Whilst some European countries maintain trial by jury for only the most serious criminal offences and global crimes (such as genocide), it is much less frequently encountered in European cases. In France, for example, the use of a jury was abolished in 1941 (other than for felonies, which are very serious criminal offences). These countries got rid of the jury system precisely for the reason it was first thought necessary, fairness. The argument goes in European countries that having 12 people decide someone’s fate is in fact not fair and is a very narrow delivery of justice. Indeed, it seems obvious that sometimes prejudices and personal views influence jury decisions, which can in turn have a dire effect for the person on trial.

Using Artificial Intelligence to pass judgement has proven to be more accurate than that of humans as all its decision-making is based on data alone. So, no need for fake court-room tears, for dressing up, or for looking remorseful and honest (in the eye of the beholder that is) as AI will not be prone to emotion. Despite AI creating better and fairer outcomes than human judges or a jury, there is no widespread use of AI in courtrooms yet as people are fearful of the possible consequences and the loss of control over the justice system as a whole.

So, which school of thought is ‘right’? Is the use of a jury fair or unfair? And, with the unavoidable rise of AI, is the fairest option really to shift the responsibility onto technology? Would this be the least prejudiced way of determining someone’s destiny? Is taking emotion and compassion out of the justice system a benefit?

A cue could be how many people are in prison in the US for example, which uses a jury system for all trials. In fact, the US (population 329 million) has the highest level of incarceration in the world with well over 2 million prisoners in jail today, whilst Germany, to name a large European country (population 83 million), has one of the lowest rates of imprisonment with just under 60,000 prisoners as per June 2021.

Is a defendant’s fate then best left in the hands of a jury or should a jury be abolished? Some currently at the receiving end of the justice system may think the tables are structurally stacked against them with a human jury and they would favour a jury-free, AI driven justice system. What about you? If you were a defendant, what would a fair trial look like?

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