I recently completed jury service and wanted to share with this forum how it has affected my faith in the potential of randomly-selected legislative juries. I was impressed by the overall impartiality of the system – three sortitions in total (initial random selection from the electoral role, sortition from the jury pool (c.40) to a particular trial, followed by sortition from 20 potential jurors to the panel of 12 in the courtroom itself). I was pleased (and surprised) when the trial judge informed us that we were the judge of the facts, his job was merely to instruct us in the law. I was also impressed by the sample of citizens selected — it struck me as a reasonable cross-section of the general public, a wide variety of ages and backgrounds and a good level of general intelligence (much higher than I anticipated).
What about the deliberations and the verdict? The defendant was a director of a failed company who was accused of intent to defraud his creditors. Complex fraud trials are challenging for randomly-selected juries but this one only required a basic understanding of accounting terminology (balance sheets, trading P&L, solvency etc.). The jury deliberations, however, lasted for a couple of days and in the end we delivered a majority verdict which did not achieve the level of consensus required (10:2), so the judge stood us down, leaving the prosecution to decide whether or not to institute a retrial (at considerable public expense).
The experience has made me a little more sceptical about the potential for randomly-selected legislative juries for two reasons. The law on intent to defraud creditors is nuanced and requires three distinct conditions to be fulfilled: 1) that there was a high probability that creditors would lose their money and 2) that the director in question knew this to be the case and 3) that his behaviour would be deemed dishonest and unreasonable in the eyes of most business people (I paraphrase here, as I don’t have the statute to hand). We all agreed the defendant was guilty on conditions 1 and 3 but many jurors struggled with 2) as they were unable to jettison the privileged perspective of hindsight. The director admitted that the company had serious cashflow problems and was telling all manner of lies as stalling tactics to customers who had paid large deposits. He took no wages for six months and was also pumping in his own cash (and providing personal guarantees) in order to keep the show on the roads. He made no attempt to fraudulently prefer secured creditors in order to diminish his personal liability. The administrator’s report indicated that the company was indeed insolvent but previous audited accounts showed a strong balance sheet. The defendant also made large payments to creditors after the liquidation on account of his personal guarantees. As such the evidence for intent to defraud was, at best, scanty but the problem was that most of the prosecution witnesses were private creditors, who attracted the sympathy of many the jurors. The defendant resembled a shifty used-car salesman and attracted little sympathy from the jury. There was also a difficulty in distinguishing between moral sins (lying) and legal ones (criminal intent). I believe I was the only company director in the jury and, as such, the only one with direct experience of a director’s quandary in trying to keep a business afloat under difficult trading conditions. Judging by the views of some of my colleagues, most company directors would now be retained at Her Majesty’s Pleasure.
So what can we learn regarding the potential of randomly-selected legislative juries? Given that most citizens will have little direct experience of the legislative issues involved this makes me more sympathetic to John Burnheim’s proposal for demarchic panels, using sortition to choose impartially from a self-selected pool of those with an “interest” in a particular area of governance. But how is this compatible with the need to ensure a representative sample? In the trial example a representative sample would have required six ordinary citizens and six people with business experience; demarchic panels (on trade-related issues) might require a similar balance between producer and consumer interests and it’s not clear how a random sample from a volunteer base would generate the necessary balance. If stratification is required then what would be the criteria to securing a balanced panel? (And what about Madison’s argument that dispassionate judgment presupposes legislators who have no interest in the bill being considered?) These are highly politicised questions and it’s hard to see any objective way of determining them.
My other representation-related concern is regarding the differential ability to persuade. I flatter myself to think that the hung jury was the result of my own persuasive powers – I’m pretty sure that if I hadn’t been assigned to that particular jury then the defendant would have been wrongly (IMO) convicted. The task of a jury in a criminal case is an epistemic one – securing the “right” interpretation of the facts. But in a legislative trial there are (presupposing democratic norms), no “right” answers. A large (c.300) randomly-selected jury should be an accurate portrait-in-miniature of the whole citizenry and its verdict should reflect the considered beliefs and preferences of the majority in the country. Differentials in the persuasive powers of individual members of the citizen jury would distort its representative accuracy, so this would suggest a model of silent deliberation and voting as opposed to the rich deliberative exchange adopted by the criminal jury. Consensus verdicts are not required in legislative trials so, for the sake of accurate descriptive representation, the active deliberative function should be restricted to the parties acting for and against the bill (equivalent to the prosecution and defence advocates). There would be no need for jury retiring rooms.
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