Jury trials were abolished in India after a notorious 1960 trial. But the lacunae in the system should inspire reform, not the removal of such a vital judicial safeguard, argues Koli Mitra.
During an international debate about trials by jury, a panellist from India exclaimed: “I’m from a civilised country; we don’t do justice by circus!” I’ve also heard people equate the jury system with show trials and kangaroo courts. But in many societies, jury trial is traditionally considered a fundamental right of criminal defendants—and sometimes civil litigants. Having a dispute or a question of guilt settled by a group of one’s fellow citizens, rather than a patrician judge from his high perch, is seen as a hallmark of a free and equal society.
History shows that arbitrary and draconian legal proceedings—kangaroo courts, if you will—have been most often associated, not with layperson juries but with absolute monarchies and authoritarian dictatorships, where “expert” magistrates enforce byzantine laws that no one is obliged to articulate in plain language. Juries were designed to protect individual liberties against just this sort of unchecked government power by providing a buffer of common sense and fair-mindedness (sometimes called the “community’s conscience”) between an individual and a sterile, potentially hostile state.
Being outsiders to the system, jurors can bring open minds and fresh eyes to cases, whereas experienced judges risk falling into habitual mental patterns. Because jury duty is a one-time service, jurors are unencumbered by personal stakes in the outcome of a case—unlike judges, who might have career arcs and professional/political reputations to consider. Jury service also yields larger societal benefits. It bridges social divides by joining individuals from disparate backgrounds, who wouldn’t ordinarily have any meaningful interaction, and making them work together to solve a complex problem with serious real-life consequences. It makes jurors think about what justice really means and teaches them about their laws, their democracy, their rights and responsibilities. After serving, jurors often share what they’ve learned with others in society and become more active in civic life. Alexis de Tocqueville called jury service a “free public education” from which jurors themselves—and the polity at large—benefited vastly more than the litigants in a case.
***When India first became a republic, it adopted a jury system but abolished it within a few years. The trigger was a single, high-profile case (K.M. Nanavati v. The State of Maharashtra) involving a war hero as a murder defendant, a Casanova victim, a high-society love triangle, sensational press coverage and accusations of ethnic bias (pitting the Parsi community against the Sindhi community). The jury concluded that Nanavati had committed “culpable homicide” but that it did not “amount to murder” because it was committed in the “heat of passion.” Instead of life in prison, he got 10 years. Given the undisputed facts of the case, it was probably incorrectly decided. But it’s surprising that it led to abolishing juries altogether. In any fair system of justice, mistakes can be corrected and perverse verdicts can be reversed on appeal, and that is exactly what happened in the Nanavati case, a fact that should have allayed any fears about jury error.
On appeal, the prosecution claimed that the judge had “misdirected” the jury regarding what constitutes “heat of passion” and “provocation”. So, the key failure in the case that killed a nation’s faith in juries was a mistake by the judge. Granted, the prosecution was likely compelled by a technical requirement to show some procedural defect as the basis for an appeal. Indeed, the judge himself referred the case to High Court for review (stating that the verdict was “perverse” i.e., patently contrary to applicable legal principles). But there had been no precedent for this kind of interference with a jury verdict. So the prosecution probably needed to shore up its argument with procedural grounds for appeal. By the same token, it couldn’t just fabricate a claim like this. There would have to be something specific in the trial record to show that the judge’s instructions were insufficient or unclear to the jury. Indeed, the Supreme Court agreed that the judge had misdirected the jury, but the government blamed the jury’s alleged susceptibility to public opinion, which favoured the defendant (by usual social standards, a more sympathetic and “upright” character than the playboy victim). Ostensibly to prevent such future errors, the jury system was scrapped.
There’s one more twist. Although the verdict was reversed to correct the error and Nanavati was sentenced to life, he served only three years until the governor granted him a pardon. It came on the same day (not incidentally) that she also pardoned a different war hero convicted of a crime, one who happened to be of the same ethnicity as Nanavati’s victim. The pardon was widely recognised as an act of public diplomacy by the government. In other words, the governing elite may set aside a judgment that has been through the rigours of the judicial process (all the way to the Supreme Court) in order to cater to public opinion. But when it comes to the civilian jury, the whole institution has to be abolished because a single jury might have been influenced by public opinion to deliver a single erroneous verdict that was overturned anyway, not to mention that the error entailed giving the defendant—who is constitutionally entitled to the benefit of every reasonable doubt—the benefit of one somewhat unreasonable doubt.
***Why do juries inspire such anxiety? If judges can be trusted not to act like tyrants because they are subject to rules and systemic checks on their power, then why can’t juries, which are also bound by rules and checks, be trusted not to act like vigilante mobs? Do we think ordinary people are incapable of grasping complex ideas or making reasoned and impartial judgments? Is this elitism? Or is it just realism? Opponents of the jury system raise a number of issues.
Much has been said about civilian juries’ lack of “expertise” to decide complex legal matters. But juries are charged with making factual determinations, not legal ones. Their value doesn’t lie in thinking like lawyers and judges—we already have lawyers and judges for that. The value of juries is precisely that they bring ordinary civilian competencies to a case: assessing a witness’s truthfulness by reading his demeanor, for example, or applying common sense and general community standards to piece together a sequence of events or to ascertain whether someone reasonably believed what they claim to have believed in a particular situation.
After they determine the facts, jurors do have to apply the relevant legal principles to reach a verdict, but they don’t need to figure this out themselves. They are instructed and guided by the judge. This should be sufficient. Legal analysis might be a subtle and specialised skill, but the product of that analysis, if communicated clearly, is not usually beyond comprehension to people of ordinary intelligence. In cases involving highly technical issues, expert juries can be called.
Far from being a shortcoming, a process that forces judges to explain complex legal principles in plain language and requires lawyers to persuade non-experts of the justice of their client’s position is a valuable process. It prevents the law from becoming unduly convoluted and keeps it accessible and relevant.
However, there are practical difficulties in guaranteeing “ordinary intelligence” in a jury. Selection is supposed to be random, so as to reflect the “conscience” of the general community rather than skewed to any special perspective. Some jurisdictions have literacy or basic education requirements. While this is fine in societies with high literacy rates or free universal public education, it might introduce a class bias elsewhere. In Trinidad and Tobago, there is a movement to abolish juries because of gross incompetence. Chief Justice Ivor Archie expressed concern that most of the available jury pool lacks the “functional literacy” required to understand the issues of a trial. In one case, a person was convicted of a capital crime because the jury foreman didn’t understand the word “unanimous.”
Since the problem is the lack of education and not the existence of juries, the real solution is to provide universal education, rather than abolishing an otherwise valuable institution like the jury. Nevertheless, the economic reality is that vast numbers of people are likely to remain without access to education for some time to come. So, it is a real concern that their exclusion might work to undermine the role of the jury as representing the community as a whole.
In medieval times jurors investigated facts on their own. But in the last few centuries, legal systems have set standards for the quality of information used to make judgments. Juries are permitted to rely only on facts admitted into evidence in court and use only their own judgment, arrived at by deliberating with each other and applying legal rules explained to them by the judge.
But can we trust that jurors aren’t being influenced by other sources of information? This was a problem as far back as 1960, in the Nanavati case, and it has only intensified as we’ve entered the era of the 24-hour news cycle. In the 1990s, when former American football star O.J. Simpson was investigated for murder, the entire world watched the drama unfold on television well before the trial began, along with around-the-clock cable news coverage, analysis, speculations, predictions, background stories and interviews with anyone remotely connected to the case. It is widely believed that the jurors had made up their minds before they ever set foot in the courtroom.
The traditional way to shield jurors from extraneous influences is to sequester them during trial. But we now live in an around-the-clock “talking head” and social media culture. As pervasive as the mass media was during Simpson’s trial, it was nothing compared to the rolling tsunami of information and commentary that comes at us about anything that happens anywhere in the world—instantly. Today, the exposure to “extraneous influences” is profound and sustained. It occurs long before the jury is selected and even before the defendant is indicted or arraigned.
Yet, even now, how many cases are ever really high-profile enough to raise concerns about “media influence”? For one, now that any ordinary person can broadcast himself around the world and get a fair shot at 15 minutes of world-fame, people are beginning to tune out a lot of communication as environmental noise. Also, there is still a time-honoured vetting system in jury selection, which allows lawyers on either side to weed out potentially prejudiced jurors. (A judge oversees the process to prevent the lawyers from overreaching and undermining the principle of random selection.) Still, the high saturation of information might make the screening process more difficult than in the past.
In any case, there is good evidence that juries can be remarkably resistant to overwhelming public opinion. In 2011, an American woman named Casey Anthony was acquitted on the charge of first-degree murder in the death of her two-year-old daughter. Long before the case went to trial, Anthony had been convicted by the media based on amateur interpretations of whatever data was publicly available. But it seems the jury considered only admissible information, which is painstakingly vetted by the rules of evidence for their reliability. Unlike the public, the jury had to give the defendant a presumption of innocence and required the state to prove its case against her. The jury heard testimony from medical and forensics experts bearing on issues such as whether the cause of death was established. It is possible that a guilty person was set free in this case. Yet, when there is any reasonable doubt—such as an undetermined cause of death—the fundamental principle of justice requires us to err on the side of a wrongful acquittal than risk wrongfully convicting an innocent. The jury seems to have done its job properly.
The idea behind civilian juries is to invite a community intervention between the state and the individual. It is supposed to be a jury of one’s “peers” —not in the sense of exactly matching the demographic breakup of the state, but in the sense of belonging to the same community of equals in a free society. But in reality, the “communities” in which people live are not always societies of peers.
Minority defendants (or civil litigants) often face systemic prejudice when their cases are decided by jurors from the dominant community. Since the early 1990s, a non-profit group called the Innocence Project has convinced courts across the United States to use updated forensics technologies like DNA testing to review the convictions of many people serving long sentences (including several who were awaiting execution). This has led to hundreds of exonerations. A high proportion of those found to have been wrongly convicted are racial minorities, most of them convicted by juries with no members of the defendant’s race.
The biases work against victims as well as defendants. In the last few years, there have been several cases where, despite clear evidence showing white suspects committing violent acts against black victims—including, in one case, a video of a black man being choked to death in New York—trial juries have acquitted the perpetrators or grand juries have refused to indict in the first place. The killer in the choking case was one of those who were never indicted and therefore never required to stand trial. The highest-profile cases among of these (including the choking case) involved white-police-officer defendants and unarmed-black-civilian victims. It’s likely that the jury bias at work here stems from pro-police sentiments as well as racially based sentiments.
This is another frequent problem with jury prejudice. Apart from “group identity” issues, they might unduly favour or fault a party because of his/her perceived social desirability. Harkening back to the Nanavati case: on one side, we had the defendant—decorated navy commander, respectable husband and father, “wronged” by an unfaithful wife. On the other, we had his wife’s lover, an irresponsible, decadent philanderer. Had circumstances been reversed and the commander had been the one who died, who knows if the jury would’ve made the same mistake of over-leniency?
In rural India, things can be even more complicated. Although diverse in the aggregate, much of India’s population—aside from the large metropolitan centres—is found in concentrated pockets of ethno-linguistically homogenous communities. Any minority group residing in such communities is so discrete and insular that if one of them ever faces a local jury, the hostile prejudice against them might be insurmountable. In addition to language and ethnicity, rural and suburban India is still fairly divided by caste and religion.
Imagine if the recent Nagaland lynching victim hadn’t died, and was to stand trial on rape charges. What justice could he expect from a jury of his “peers”, who would have been constituted from the same community that gave rise to the lynch mob? Putting one or two members of his minority community would make little difference, as the solidified prejudice of the majority would overwhelm their voices. Calling an evenly balanced jury would probably result in a hung jury, given the clan-war sensibilities saturating the public culture.
In this respect, bench hearings might be more just. While judges are human and not immune to prejudices, they have other societal constraints and incentives operating on them to maintain high standards. Because judges are more visible in the world than jurors, it is also more possible to hold judges accountable, if their colleagues or civil society or an NGO were to call them out for an especially egregious decision. However, in the context of the routine, low-profile cases that make up the majority of the work of justice, the historical record on judicial accountability is not heartening.
There is a common claim—especially in non-jury countries—that juries are particularly susceptible to bribery and corruption. However, the empirical evidence contradicts this. In the US, which has a robust jury system, judicial corruption is still relatively low, but has increased as the institution of the jury has been weakened with the sharp rise in plea-bargaining in criminal cases and mandatory arbitration in civil disputes. In India, corruption has risen significantly in the 50-plus years since the jury system was abolished. Writing in The Hindu, Katyayani Murti cites Transparency International’s Global Corruption Report 2007 to report that “‘bribes seem to be solicited as the price of getting things done’…and 90 percent of these bribes go directly into the pockets of lawyers and other court officials. [It is a] culture of corruption in which those with the means routinely buy ‘justice’”. She quotes former Chief Justice S.P. Bharucha as saying that “20 percent of the higher judiciary might be corrupt. Yet, to this day, no case of judicial corruption has ever been put on trial in India.”
Being ephemeral and lacking the institutional power and privilege of judges, juries are far less attractive targets for bribery. They are also not in a position to do as much harm: one corrupt judge would affect many cases for years, but corrupt juror only affects one case, and only if he is able to influence every other juror (or a majority, depending on the jurisdiction).
In the Casey Anthony trial, there was intense popular anger over the verdict. Death threats were received, not just by Anthony but also members of the jury. While this case might be an outlier in terms of a threat resulting from public opinion, there are other, more routine threats to juries. In communities dominated by gangsters and illicit drug cartels, local bosses often threaten the jurors and their families in order to intimidate them into ruling a certain way.
One way to defend against this is to have some mechanism for protecting the jurors’ anonymity. In the Anthony case, the court decided to seal the jury roster. But this is problematic, since maintaining a high level of transparency in the judicial process is vital to the integrity of the justice system.
Secrecy versus Transparency
Although the open, public trial is a constitutional right of criminal defendants (and of civil litigants in some jurisdictions), the one aspect of the proceedings that is usually kept private is jury deliberations. This is done to avoid inhibiting the jury’s deliberative process. There are different questions about how far to take the secrecy. Should individual jurors be free to disclose details of the deliberation after it’s over? If so, should there be limits on speaking about the views of any other juror? Will the knowledge that this information could be revealed later work as a deterrent to vigorous and independent deliberations? Does the secrecy work to the detriment of those affected by the case? Does the losing party have a right to know the reasoning behind the judgment?
The CSI effect
Jurors often bring in lots of misinformation from the popular media, and it takes time and effort to disabuse them of this. Some of them come to court having “educated” themselves on the issues using the internet. In recent years, popular TV crime dramas (like CSI) have contributed to unrealistic expectations about evidentiary standards. Some jurors discount testimonial and documentary evidence and demand highly conclusive physical evidence in all cases, sometimes requiring futuristic technologies that are routinely used on television but are nonexistent in real life. However, there have always been sources of misinformation. It is the responsibility of judges to keep abreast of current trends in order to educate the jury, including by correcting any misconceptions they may have.
Juries, culled from the civilian community, are considered more competent in determining facts, while judges are more competent in making legal judgments. Therefore, jury findings of fact are usually accorded a high degree of deference by the courts. In the Trinidad case where the foreman didn’t understand “unanimous”, there was no mechanism—short of a presidential pardon—to correct the error, even after it became known. This deference is sometimes cited to support an argument against having a jury system. But this is not rational. Instead of abolishing juries altogether, why not change the standard of deference if that’s the problem? Granted, a lowered standard of deference might open the way for more judicial encroachment into the jury’s domain, but that’s still better than abolishing juries and transferring all of their powers to judges.
Democratic institutions are all about checks and balances. The jury is an important check on the judiciary, but the judiciary also checks the jury. There are well-tested mechanisms for finding the right balance. For example, some states in the US allow jury findings to be set aside if they are “arbitrary and capricious” or “clearly erroneous” (or other such high degrees of error). The erstwhile Indian standard was “perverse verdict.” Ultimately, the elected representatives of the people also provide certain checks: legislatures can change laws, while heads of state can grant pardons.
How does a system ensure that a jury is really taking its responsibilities seriously and not just rushing to judgment to get home? Citizen apathy is a fundamental problem of democracy, but especially harmful if it directly affects the justice system. There are ways to fight it, however. One possibility is to include only registered voters in the jury candidate pool. The jury selection process can also screen for people who are excessively dissatisfied or resistant to being there. Sometimes what looks like apathy is really distraction; jurors must be excused if circumstances prevent their undivided attention to the case. Employers could be required to give paid leave for jury duty in order to avoid imposing financial hardships on jurors.
Further, jury duty itself might be a cure for apathy. Being given the solemn responsibility of dispensing justice can actually be a catalyst for stimulating interest. Studies indicate that the more serious the issues in a case, the more scrupulously jurors tend to approach their duties. In fact, a vibrant jury system is exactly the kind of democratic institution that can foster more civic-mindedness among citizens. In the book The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement, published by Oxford University Press in 2010, the authors show that people who have served on juries are strongly likely to become more engaged in civic and political activities.
***Perhaps India could reintroduce the jury as a limited pilot program in a handful of communities. It could pertain to a small class of cases—perhaps contracts amounting to less than Rs. 25,000, or crimes carrying a sentence of three months or less. It could be available to litigants or defendants by choice. Different kinds of jury selection criteria can be experimented with. Perhaps someone with legal experience but unconnected to the case—a retired judge or lawyer, for example—could participate in the jury deliberations as a non-voting member. Instead of the selection being entirely random, some effort could be made to constitute a diverse jury in terms of gender, religion, caste, ethnicity, language, etc.
Maybe the jury’s task could be limited entirely to finding discrete matters of fact, to which the judge would apply the laws in order to reach a verdict. For example, instead of “We, the jury, find the defendant guilty of…”, the jury could read “We, the jury, find that the defendant pried open the lock of the front door at 21 Mahatma Gandhi Lane with a pen knife (exhibit A); and that he intended to enter undetected and take the jewelry box (exhibit B) and leave with it, undetected; and that he knew that he did not have permission from the homeowner to enter the house…”
Maybe the citizens’ response would surprise us. Maybe the pilot program could be the scaffolding from which a permanent jury system could be rebuilt.
***In many ways, jury service is the only really powerful act of democratic participation available to the most ordinary people. Voting is, by definition, an act of delegation rather than engagement. Its impact is also diluted and very often merely symbolic. Paying tax is even more abstract and remote, and makes us focus on our own finances rather than on society’s interests. Military service requires unquestioning obedience, not deliberative participation in a process of public importance. By contrast, jury service is a real, impactful participation in the functioning of the democracy. Thomas Jefferson called it “the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution.”
The civilian jury system has problems, like any democratic institution. But whereas other problems inspire recommendations for reform, when problems in the jury system come to light, we reflexively call for its immediate abolition. Perhaps because people usually in the business of thinking about such things belong to the educated elite, they have instinctive doubts about whether the utterly ordinary are really up to the task of delivering justice. So, when any problem arises, their impulse is to gain a sense of control over the situation by cutting out the most erratic and unruly variable—the ordinary layperson.
This is exactly the kind of fear “civilised” people had about democracy once upon a time. The idea that the unruly masses would decide how society should be governed was considered quite dangerous. But we’ve learned through experience that democracy is not the same as mob rule. Likewise, jury service is not the same as the court of public opinion. Democratic choices—though sometimes wrongheaded—usually yield the best results because voters know they’ll be bound by the decisions of the government they choose. Similarly, as ordinary people, jurors can imagine themselves on either side of a civil dispute; they can see themselves as either the victim of a crime or falsely accused of one. These are incentives for delivering a correct judgment instead of a coloured one. Like all aspects of democracy, the jury system needs to be vigilantly monitored and periodically reformed, It’s a messy and problematic institution, but it is a vital resource. To paraphrase the old adage about democracy made famous by Winston Churchill: the jury system is the worst system of justice, except for all the other ones.