Look up “sharia” on Wikipedia. The following is quoted from that entry:

“The precursor to the English jury trial was the Lafif trial in classical Maliki jurisprudence, which was developed between the 8th and 11th centuries in North Africa and Islamic Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters “which they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff.” The only characteristic of the English jury which the Islamic Lafif lacked was the “judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition.” According to Professor John Makdisi, “no other institution in any legal institution studied to date shares all of these characteristics with the English jury.” It is thus likely that the concept of the Lafif may have been introduced to England by the Normans and then evolved into the modern English jury.”

I guess I’m an elitist a la Brian Caplan: I don’t really want the judges to be all that reflective of the people.

I can’t say I like this proposal. It would in essence create a class of judges that would be even less reflective of the people than our juries now are. The state’s interests, however, are already well represented in our court system.

Ostensibly the only two traits being screened for are:
1) Impartiality, and
2) Adherence to law

One can be eliminated for cause: by answering questions in the voir dire that suggest you can’t determine the facts of the case with impartiality, or that suggest you would not be able to follow the law as defined.

One can also be eliminated by a strike. Both the prosecution and defense receive a certain number of strikes, which vary, as does the size of the panel from which the jury will be drawn, depending on the type of trial and other factors (like publicity).

The trial I served on started with a panel of 70. One of the first voir dire questions, one I thought misleading, was “if sex was consensual between a minor and someone a few years older, could you convict the older person for sexual assault under any conceivable circumstance?”

This question was asked of each of the first three rows of jurors. Those who said they would have a problem with this were then removed from the panel for cause by the judge. The judge stopped this question after row 3 when it became apparent that almost half of each row was eliminated. (They don’t want to assemble another panel.)

The circumstances of the actual case were not the scenario painted, but the prosecution was able to eliminate a substantial number of people one might guess would be more sympathetic to the defense.

After the lawyers argue with the judge about which panelists should be eliminated for cause, which doesn’t cost either side a strike, each side begins applying its strikes starting with panelist number 1. They make their lists in secret and then present them to the judge. If both sides use a strike, too bad, they’ve both lost a strike.

In this case, I believe they each had 12 strikes. As you can imagine, there’s a good bit of gamesmanship here.

I was panelist #52 and did not expect to serve until the question about statutory rape eliminated about 25 people ahead of me. I would probably have been eliminated as well had the judge not stopped the question.

In the end, it was #52, #53, #55, #56, #57, #58. Both sides had run out of strikes and the sequence completed the jury.

So, again, if you DON’T want to serve, give either side an excuse to argue that you should be eliminated for cause by the judge.

About a year ago my brother served on a jury, and he has a PhD. He was surprised to be kept in the pool, and after the trial the defense attorney told him that on average it is the prosecutors who try to strike highly educated jurors. Probably because they’re more likely to question evidence and look for nuance.

As for jurors, why not move from a jury of randomly selected peers to one of professional peers? Compensate people to sit on juries as a job. They would an incentive to be as impartial as possible, because defense could strike them if they had a consistent history of conviction and prosecution could strike them if they had a consistent history of acquittal.

I will tell anyone who asks, and I will even volunteer it if no one does: I refuse to serve on a jury for a nonviolent drug crime, since I cannot administer a law like this impartially. They ask all prospective jurors about this, and I will give them the honest answer.

If I am forced to serve anyway, then I will make it clear beforehand that I will refuse to convict. That alone will almost certainly get me dismissed. I don’t imagine that there will be any punishment involved if I am simply upfront about it all.

I will do the same in the extremely unlikely event that the trial involves the death penalty. I have a family member who once did the same thing for a capital case and was dismissed without incident.

Now, for other crimes, I am entirely confident that I could perform my duties as the law demands. I have absolutely no moral problem with prison or fines for crimes that have actual victims.

Also, if I recall from my student days, twelve jurors is a relic of Magna Carta and the requirement that 12 real peers (of the realm) were required to convict the nobility. For what it’s worth, we have reason to believe they were even dumber than the average juror today. Then again, I believe “I know Sir John and he wouldn’t do it!” was considered credible evidence.

In some jurisdictions, btw, admitting up front that you would be willing to engage in jury nullification would be tantamount to setting yourself up for a contempt charge. Not recommended.

But the reason we can get away with a small sample isn’t just convenience. We have a small sample because the guilty verdict must be unanimous.

Wait a minute. The unanimity requirement presumably exists to protect the accused. *Everyone* on the jury has to agree that the accused is guilty in order for a guilty sentence to be rendered. But using this logic, why not make juries consist of, say, 15 people? The accused is even more protected if N = 15, because the odds of unanimity are lower. Yet we wouldn’t want to go with too few people (say, N = 5) because the accused may wind up with an overly punitive jury by chance, and a lot of innocent people would be condemned. So N = 12 because it represents some sort of “happy medium” that is small enough to grant a reasonable chance that guilty people will be unanimously condemned, and large enough to avoid chance unanimity from occurring too often. But why 12? And why 12 for all kinds of crimes? Shouldn’t the fact that stakes are high in some jury trials (repeat rapists) and low in others (drug possession) dictate different degrees to which we are willing to make erroneous convictions and erroneous acquittals? And shouldn’t that dictate different Ns from trial to trial, depending on the particulars? For you statisticians out there (who, by the way, use jury decisions as examples all the time), I am referring to adjusting the Type I and Type II error rates to accommodate different degrees of risk. Why is sample size “one (small) size fits all” in the legal world?

The statistician’s solution would be obvious. Replace the unanimity requirement with something more sensible and get *lots* more people on the jury.

I mean, duh. Wouldn’t that be fair?

The mother of the teen never showed up in court; the father showed up on crutches on the day he testified but was not on crutches any other day he was in the courtroom (like we couldn’t see him!). The brother who had waited on the girl outside the school where the rape occurred also did not testify.

Two of the prior felonies were for robbery. The third and most recent, though four years in the past, was for cocaine possession less than a gram. The two robberies occured when the defendant was 18-20. There were also six misdemeanor convictions the most serious being simple assault.

Guilt or innocence was easy. Sexual assault of a child did occur since consent cannot be given (a whole other can of worms, but given that the teen said it was rape, not a lot to argue about) by a 14-year-old in Texas.

Texas is one of only 5 states though where the jury also decides the punishment. Our range of sentencing: 5 years - Life. (Three Strikes law). First offense punishment range was 2 years - 20.

It was VERY difficult. Perhaps one of the most difficult moral situations I’ve ever encountered. I was something of a holdout on the jury. The others wanted to give him a life sentence.

They inform you that effectively a prisoner in Texas receives one day reduction in term served for each day of good behavior. So, theoretically, a 20 year sentence could be served in 10 years. Even a life sentence is eligible for parole after 30 years. Effectively, a 60 year sentence then is the same as life.

I could write extensively about what went on there. We deliberated for about 10 hours on the sentence, including part of a Friday evening and came back on Monday to begin again (relevant later).

The sentence we gave was 45 years. I thought it was acceptable, but absolutely at the maximum of what I would accept, and told the others that I would hang the jury rather than go higher. I didn’t deliver that ultimatum until after about 4 hours of them pummeling me with why the guy deserved the worst possible.

Even though in voir dire we are all asked whether we could consider the full range of punishment from minimum to maximum sentencing a few people’s constant refrain was “but he raped a child”. To which I responded, “yes, but there’s still a range, presumably because of degree of heinousness”.

We later were told by the judge that the defendant had a plea deal for 30 years. When asked her opinion of the sentence, she said it had started out sounding like a life sentence, but after the teen’s testimony sounded like about 40 years. When we adjourned on Friday rather than reaching a verdict, the defendant offered to settle for 40 years, because presumably the fact we were willing to come back on Monday meant we were arguing about a life sentence. The prosecution rejected their offer of settling at 40 years.

I thought about the case and the jury room for almost every day for the month following the case, and I think about it at least once a month since then, wondering if we did the right thing. If the sentence was fair, if I should have fought harder to get the sentence to my preferred range of 20-30 years.

The problem with this theory is that once you put twelve people into the same room for a long time, they’re no longer independent samples. A majority can exert a lot of social pressure on holdouts, who may vote with the majority just so they can get home.

But I’m sure you won’t be one who does that.

I know that 12 is a laughably small sample size. (Athenian juries were 500 people, as I recall.) But the reason we can get away with a small sample isn’t just convenience. We have a small sample because the guilty verdict must be unanimous. Conversely, if reasonable doubt exists, then we should expect that at least one person in twelve can find it.

And if even one person in a random twelve can’t find a doubt about the prosecution’s case, then it’s likely that there isn’t really any doubt.

I haven’t done the math for this, and while I’m sure I could have at one time in my life, I have forgotten more statistics than I now know. Maybe you could take a look at it? I’d give you a top-level post if you mail me the work.

Update: Wikipedia says Athenian juries were as large as 401 people, not 500.