The American jury trial has been the cornerstone of our justice system. It is of such importance that it has been insulated from the changing political whims of legislatures and judicial administrators by our federal and state constitutions. The Seventh Amendment to the U.S. Constitution provides for civil juries: “”In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved . . . .” The Sixth Amendment mandates the right to criminal trial by an “impartial jury.” In our state the civil jury process has survived an onslaught of challenges by those seeking expediency over this precious right. Periodically, efforts are undertaken to curtail our constitutional right to individual voir dire, or questioning of potential jurors. Those attacks have traditionally been defeated. Art. 1, sec. 19 of our state constitution provides: “(That the great and essential principles of liberty and free government may be recognized and established . . . ) the right to trial by jury shall remain inviolate.”
Our jury system finds its roots in the English common law as far back as the Magna Carta. Even before that one of England’s lesser known kings, AEthelred the Unready, established a legal system in the tenth century where 12 minor nobles would be assembled to investigate crimes without bias. Ironically, today many lawyers lack the ability or the fortitude to present a case to a jury, civil or criminal. If you were to poll most of our trial judges they could name lawyers to whom the appellation, “the Unready” would aptly apply. For many years our courts maintained a civil jury list and a separate criminal jury list of cases that had ripened to the point that they were exposed to trial. Periodically there would be a cattle call where the lawyers whose cases appeared on the lists would have to appear and announce whether they were prepared to proceed to trial. Every jurisdiction had a few wags to whom the label “ready until reached” applied because they were constantly coming up with excuses not to proceed. That system has given way in the civil arena to firm jury assignments where lawyers are given the ability to recommend dates for the commencement of trial. “Ready until reached” no longer flies with our civil trial judges. When your case is exposed for trial you are required to proceed.
So why do I say that the jury system is on life support? There are a number of contributing factors. First and foremost is the crush of cases, both civil and criminal. We simply do not possess the necessary resources to accommodate more than a modest percentage of cases with a jury trial. There are not enough judges, support staff, prosecutors and courtrooms to provide for most cases. That being said if you insist on a jury trial for any type of case it will eventually be assigned.
In the criminal milieu statistically the overwhelming percentage of cases, more than 95% are resolved through some form of plea bargaining. This includes both cases where there are convictions and those employing some type of pre-trial diversionary programs. According to a 2011 study commissioned by the Bureau of Justice Assistance of the U.S. Dept. of Justice, in 2003 there were in excess of 75,000 criminal cases disposed of in our federal courts, only 5% were by trial.
In our civil system the cost to present even the simplest personal injury case to a jury can be substantial. In complex cases it is overwhelming. Add to that the time it takes for a case to finally reach the point where a trial is imminent. As a consequence we have developed a system of alternative dispute resolution programs, such as binding arbitration and non-binding mediation. Unfortunately, there are too few trials for young lawyers to “cut their teeth on.” As a result many lawyers take on cases with the sole intention of seeking a settlement, fearful of what it would take to go to trial. Juries may well become a vestige of another age, like trial by ordeal or trial by combat.