Saturday, August 16, 2008

Thinking Outside the Jury Box

This article at simple justice got me thinking. The author points out the downside to requiring unanimous jury verdicts: a single holdout can turn an acquittal into a hung jury and possible retrial (and possible conviction). (Which is the other side of the coin of the fact that a single holdout can prevent a conviction).

This then triggered some neurons in my brain to fire, a rarity these days in blogtopia as my new job consumes all available brain resources. Why not combine the best of both? Require unanimous verdicts to convict but allow simple majorities to acquit, and then only call a jury "hung" when you get something in between? This, to my mind, would be consistent with the often touted (but much easier-than-it-sounds-to-acheive) standard of "beyond a reasonable doubt" that is supposed to be a massive burden on the prosecution but often is just a speed bump. Changing the jury requirements to my suggestion would finally really put that standard into practice in a more systematic way. If "reasonable doubt" is, as described in lawschool, another way of saying 95% sure (as opposed to maybe 51% sure for "preponderance of the evidence" and maybe 70% sure for "clear and convincing evidence"), then it fits that you need every juror to convict but that if you have at least a simple majority who say "wait a minute" then really, there wasn't evidence beyond a reasonable doubt - after all, six or seven people had doubt, and so acquittal, not a hung jury, is the proper result.

Prosecutors would have a cow about this, of course. But I don't really care what prosecutors think. Their job is SUPPOSED to be hard. Beyond a reasonable doubt is supposed to be a very high standard. I don't pretend to know exactly how this would work out in practice, though it would be interesting to see how conviction rates change once this system is in place (like it ever would be, but I can dream, can't I?)

I'll have to add this to my list of reforms for the justice system, right after the item that disallows prosecutors from bribing witnesses (or at least evens the playing field in that regard).

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