Jury trials are vanishing. This is the case in both the criminal and civil fora. On the civil side, the American Board of Trial Advocates, whose members must have a certain level of experience with jury trials, struggles to find younger members, because young lawyers by and large are not trying jury trials. There are scores of litigation partners in large firms who have never tried a civil jury trial. The number of civil jury trials barely is more than 200 per year for the entire state.
In the adjoining state of Massachusetts, in 1925 there were more than 3,000 civil jury trials, while in 2003 there were just 586, even as the population boomed. On the criminal side, in 2012, former U.S. Supreme Court Justice Anthony Kennedy observed that 97 percent of all criminal convictions in federal courts and 94 percent in state courts were the result of plea bargains and not jury trials. He lamented that the criminal justice system is becoming a system of pleas, not a system of trials.
Jury trials have been steadily decreasing and, with the current trend, will be a relic of a bygone age. Especially in Connecticut, where we are the only state in the country that has individual voir dire, the number of jury trials is appallingly low because many cases settle during jury selection due to length and cost.
So what is the big deal, you might ask? The problem is jury trials are fundamental to democracy. The Founding Fathers saw it as a sacred right, which King George III threatened to remove. As Alexandria Lahav explained in her recent book, “In Praise of Litigation,” jury trials have an important equalizing force because they allow laypeople to render judgment on the most powerful people and entities in the country. Moreover, a jury trial allows laypeople to engage in principled debate. It allows them to participate in government in a way that is more engaging than voting when they deliberate with each other in deciding the issues raised by the parties. The jury trial system serves more than the litigants (and their lawyers). It is a political institution.
Alexis de Tocqueville stated that the jury trial “invests each citizen with a kind of magistracy, it makes them all feel the duties which they are bound to discharge towards society, and the part which they take in the Government.” He argued that it raised the intelligence of citizens, likening the process to “a gratuitous public school ever open.” Tocqueville observed that “by obliging men to turn their attention to affairs which are not exclusively their own, it rubs off that individual egotism which is the rust of society.”
So why is this trend even occurring? It may be the rising cost of litigation, the rise in alternative dispute resolution, and in the criminal forum the fact that defendants are exposed to harsher sentences if they go to trial and lose.
How can we reverse this trend? One first step would be to encourage, if not mandate, panel voir dire. The late Supreme Court Justice Borden and Superior Court Judge Schuman made the case for this in an article in the Connecticut Bar Journal. This is a divisive issue. It is also misunderstood. The right to individual voir dire—wherein each venire person is interviewed outside the presence of all other prospective jurors—is not a constitutional right. It is perfectly permissible to interview the jurors as a group. It is absurd to think that the juries that are selected in Connecticut state court are fairer than the jurors selected in federal court or in any other state. Second, let’s see alternative dispute resolution for what it is. It has many benefits to be sure in reducing costs and saving time and money. But it by and large is becoming a cottage industry for retired judges. Its increased use is frankly a threat to a fundamental part of democracy. Moreover, dependence on alternative dispute resolution results in not equipping young lawyers with the tools they need to best represent their clients. If a seasoned trial lawyer knows that his opposing counsel has never tried a jury trial, the experienced lawyer will have a distinct advantage over his adversary.
Finally, no criminal defendant should be threatened with a longer sentence if he or she takes a case to trial. That may seem quixotic. But if the right to a jury trial is sacred, as our Founding Fathers believed, then it should not be a means to an end, a tool, but an end in and of itself, like all precious things.