“You must always point […] If you don’t have the courage to point […] you can’t expect them to have the courage to convict.”
Perhaps no other criminal justice system in the world better exemplifies the adversarial tradition than the American criminal justice system and the jury trial, as this American novelist’s opening line points out. This system is based upon a simple premise: that to ascertain the “truth”, there must be a confrontation between two opposing forces – the Prosecution and the Defense, respectively representing the victim’s and the accused’s version of what happened. The truth of the accusation must be proven within the rules of legal proceedings to ensure a fair playing field for the accused. Two narratives are presented before an impartial jury who acts as fact finder, and reaches, one hopes, a fair and just verdict.
But in light of the acquittal of George Zimmerman in the shooting death of Trayvon Martin, one cannot help but wonder, are jury trials the best way to arrive at the ‘truth’ and a fair verdict? Can you have one without the other?
A Fatal Shooting:
The facts in the Zimmerman case remain in a gray zone, despite the Prosecution and the Defense’s laborious attempts during trial to elucidate them for the jury. What is undisputed by both sides is that on the evening of February 26, 2012, in Sanford, Florida, a 17 year old African American teenager named Trayvon Martin was shot dead by a 28 year old Hispanic neighborhood watch volunteer named George Zimmerman. Martin was walking home from a convenience store, when Zimmerman saw him and believed he was “suspicious” based on a recent spate of neighborhood burglaries. Zimmerman called the police to report Martin; he pursued Martin while still on the phone. After being told this was not necessary by the dispatcher, Zimmerman acquiesced, and concluded the call. A confrontation ensued between Zimmerman and Martin shortly afterwards, during the course of which the Prosecution and the Defense allege different accounts of who attacked whom. Ultimately, Zimmerman shot Martin with his gun during the encounter and claimed self-defense. Zimmerman was taken in for police questioning but was not initially charged with a crime because of Florida’s “stand your ground” law, which allows someone who believes they are in imminent danger to take whatever steps are necessary to protect themselves. Zimmerman’s right to a gun is protected by the Second Amendment of the US Constitution. After a media frenzy around the circumstances of the case, Florida State Attorney Angela Corey charged Zimmerman with murder on April 11, 2012. A jury of six women were chosen – 5 white, 1 Hispanic. The trial began on June 24, 2013. The six women were sequestered from the outside world as they listened to the testimony and evidence in the case. On July 13, 2013, the six women unanimously acquitted Zimmerman after finding that he justifiably used deadly force against Trayvon Martin because he reasonably believed it was “necessary to prevent imminent death or great bodily harm” (definition of Florida’s self defense law).
The Zimmerman trial received intense media coverage and allowed the public to view the dynamics and peculiarities of a jury trial up close. It unleashed national discourse in the US about biases against black defendants in the US criminal justice system, the Second Amendment right to bear arms, and whether Florida should amend it’s self defense law. It also provoked controversy about whether a jury of six majority white women reached a fair verdict.
The Right to a Jury Trial:
In the American criminal justice system, every individual accused of a crime must be presumed innocent until proven guilty. The Prosecution bears the burden of proving the guilt of the accused. Throughout the process, the defendant is guaranteed fundamental fair trial rights, including the right to an impartial jury trial in the state and district where the offense allegedly took place. The right to a trial by a jury of one’s peers is guaranteed under Article Three of the US Constitution, and the Sixth and Seventh Amendments; The Fourteenth Amendment’s guarantee of due process extends this right to all States.
The jury trial places a great deal of faith in the deliberation powers of six or twelve jurors who are selected at random to represent a cross-section of society.  Yet, the idea that the fate of a defendant’s life and liberty lies in the hands, not of legal professionals, but with individuals with little to no knowledge of the law, is a striking one to accept at face value. After all, is a group of “peers” really more likely to decipher the truth and reach a fair verdict than an individual judge?
The pros and cons of a jury trial:
Those who argue for the merits of jury trials emphasize their utility as a form of democratic restraint that curbs excess government power and prosecution. Studies support the idea that people regard juries as fairer, more accurate, better at representing minorities, and more likely to minimize bias than judges. In addition, psychologists have found that deliberating as a group forces decision-makers to articulate and come to terms with their own assumptions or individual prejudices by promoting an exchange of views among people with diverse perspectives. By being confronted with other viewpoints, individuals may rethink their initial snap judgments, or at least take into account a version they may not have considered on their own.
Yet group deliberations also encourage “groupthink”, where the desire for conformity in the group results in reaching decisions without critical evaluation. The amplification of common prejudices, especially among people who may not necessarily represent a cross section of society, compounds the potential for built in, group biases to produce an unfair verdict.
Equally disconcerting is that jurors often have difficulty understanding jury instructions that tell them the applicable law to apply to the facts at hand. Even with perfectly impartial jurors, these laymen and women are not trained in parsing legal language and applying legal standards for a conviction or acquittal, and the potential for this to result in an unjust verdict is daunting. This problem came to light in the aftermath of the Zimmerman trial when juror B-29 lamented on national television that she found the law confusing, and that, “A lot of us wanted to find something bad, something we could connect to the laws… But as the law was read to me, if you have no proof he killed him intentionally, you can’t say he’s guilty”. As legal commentators opined afterwards, the juror simply did not understand the law, through no fault of her own; jury instructions are written in “legalese” – complicated legal jargon that only lawyers would be able to decipher.
Adversarial vs. Inquisitorial Systems:
In contrast to the US adversarial system of justice and its use of jury trials, inquisitorial systems of justice operate based on a different idea of how to arrive at the truth. In the Continental system, the legal truth is regarded as something that emerges from an investigation, by an Investigating Judge who acts as both fact-finder and arbiter of “truth”.
Jury trials in a system like France for example, are only given to defendants when prosecuted for felony offences that may bring at least 15 years imprisonment or a fine of 75,000 euros. The Cour d’Assises is the only court that tries by jury and it is composed of 3 professional judges and 6 or 9 jurors. A conviction requires a 2/3 majority. Yet in an interesting experiment at “democratizing” the French justice system, in 2011, former French president Nicolas Sarkozy installed jury trials for lesser criminal offenses in two regions of France. The project placed two French citizens on the bench with three judges at “tribunaux correctionnels”, where all but the most serious of crimes are charged. These experimental trials were abandoned in the spring of 2013 after being criticized by judges that jury trials were costly, extremely burdensome, and that citizens were “not equipped technically” to deal with complicated legal issues.
The inclination for a streamlined criminal justice system that is not marred by additional financial costs and the risks of jury error is certainly not limited to the French experience. The American jury trial, for all the glamorous appeal they evoke, are becoming rare for the same reasons the French judges underscored.
The reality of the US criminal justice system: Plea Bargains
More than 90% of the criminal cases in America are never tried before a jury. Instead, about 97% of federal convictions and 94% of state convictions are reached through plea bargains negotiated between prosecutors and offenders. These are grim statistics that reflect an overburdened criminal justice system plagued by ineffective or overworked lawyers, under-resourced staff, and a cost-benefit analysis that weighs in favor of a plea, rather than a trial by jury. Plea bargains are the norm in the U.S. criminal justice system. But its ubiquitous use indicates that the American adversarial system is less concerned with finding the “truth”, than is presumed to be the case.
In a “plea bargain” the prosecutor and the defendant make an agreement, whereby the defendant forgoes their constitutional right to a trial and pleads guilty to a lesser charge, in return for the dismissal of other charges or a more lenient sentence. These deals may work out for defendants who are guilty of the crime and see the bargain as the lesser of two evils. However, as critics of the system point out, in a great majority of cases, the defendants’ “choice” to plead guilty when they may be innocent is simply a way to mitigate unknown risks about the strength of the case against them, and the undesirable outcome of a trial which could place the defendant behind bars for a substantially longer period of time than the deal would offer. This risk analysis further gambles with the fact that those who take plea bargains are often indigent defendants who may have little to no understanding of how the criminal justice system works, and would prefer a deal rather than be represented by an ineffective public defender without the time or energy to put in a zealous defense of their rights.
The consequence of accepting these shortcuts in the criminal justice system is the failure to protect the defendants’ rights – because when the defendant pleads guilty, he also waives his right to a jury, his right to a public trial, his right to cross-examine witnesses, and essentially his right to have effective assistance of counsel.
Lessons from the Zimmerman Trial:
In the Zimmerman trial, even before the not guilty verdict was issued, many began the litany of “what if’s” that often come with jury trials: what if the jury were made up of 12 as opposed to 6 jurors? What if the jury had included men, in addition to women? What if the jury had included an African American?
What if Zimmerman had been indigent, and instead of hiring the defense team that fought so ardently for his rights and eventually got him acquitted, he had pleaded guilty to avoid the “risks” of a trial? If the answer to this last question makes you think that Zimmerman’s fate could have easily been other than is the case, perhaps the best thing to come out of this trial and the tragedy that preceded it, is a good hard look at who the American criminal justice system best works out for.
The majority of criminal defendants in the US do not have the luxury of considering “what-if’s”. In a plea bargain, there is no adversary; the process becomes reduced to a business transaction. Guilty or Not guilty, becomes reduced to “guilty”, with technical qualifications that ensure a “win-win” type situation, or at least the illusion of one. There is no search for the truth, much less a feigned interest in one. What matters, it appears, is cutting costs, saving time, and ensuring there is something in it for everyone involved. The logic behind plea bargains then, is that in an era of mass incarceration, the US criminal justice system is so overloaded, that they are a necessity. This is a myth. Jury trials may not be the most cost-effective option in the US criminal justice system, but plea bargains do more than cut costs – they also cut rights. Pleading guilty effectively annuls the defendant’s right to a public hearing completely; in doing so, it pre-emptively aborts the legal process, and shortchanges the defendant’s right to a fair trial. There is a third alternative. Defendants can choose to not plead guilty, but rather than opt for a jury trial, they can choose a trial before a judge. Philadelphia, for example, exercises this type of trial system –over 50% of the cases are tried before a single judge, and about 5% go to a jury trial.
No criminal justice system is perfect, least of all the American one. The flaws in the Zimmerman trial reflected the ways in which this system needs to be improved. It also opened the doors to vigorous and healthy debates in the US about race, gun laws, and disparities in the US criminal justice system. Everyone from churchgoers to the President of the United States weighed in on the outcome of the trial, and where the US can go from here. The legal determination of Zimmerman’s culpability has been decided. Yet the remaining uncertainty about what really happened that night in February when Martin was shot, illustrates that jury trials are not instruments for determining the “truth” – rather they are about preserving a process, one that is “designed to make it as sure as possible that no innocent man is convicted.” But is it the “innocent” that are best served by this process? The answer to this is inconsistent; this is perhaps what makes the jury trial a unique reflection of the adversarial quest for victory, not for “truth”.
Trayvon Martin Shooting Protest 2012 (Credit: Shankbone/ Creative Commons)
 Scott Turow, Presumed Innocent, 1987.
 “What is known, what isn’t about Trayvon Martin’s death,” Frances Robles, March 31, 2012, http://www.miamiherald.com/2012/03/31/2725442/what-is-known-what-isnt-about.html; “Trayvon Martin shooting: What do we know?” Julia Dahl, March 30, 2012, http://www.cbsnews.com/8301-504083_162-57407115-504083/trayvon-martin-shooting-what-do-we-know/
 “George Zimmerman Is Probably Going to Walk, and That’s Not a Bad Thing,” Justin Peters, July 10, 2013, http://www.slate.com/blogs/crime/2013/07/10/george_zimmerman_trial_trayvon_martin_s_shooter_is_probably_going_to_walk.html.
 In response to the dispatcher who tells Zimmerman “You don’t have to do that [follow him]”, Zimmerman says “ok” and stated that Martin got away. “Transcript of George Zimmerman’s Call to the Police”, City of Sanford, Florida, published by Mother Jones, http://www.motherjones.com/documents/326700-full-transcript-zimmerman.
 Zimmerman’s trial follows Florida Statute 913.10 which says “twelve persons shall constitute a jury to try all capital cases, and six persons shall constitute a jury to try all other criminal cases.”
 See this timeline from the shooting of Trayon Martin on February 26, 2012 to the acquittal of George Zimmerman on July 13, 2013, http://www.cnn.com/2013/06/05/us/trayvon-martin-shooting-fast-facts
 The Jurors decided that Zimmerman didn’t “intentionally commit an act or acts that caused death” or demonstrate a “depraved mind without regard for human life” (Florida’s definitions of manslaughter and second degree murder, respectively).
 “The Trial of all Crimes…shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed”, Article III, U.S. Constitution. The right to a jury trial applies to every defendant in the US except for those concerning “petty offences” for which the defendant can be sentenced to no more than six months (Baldwin v. New York, 399 U.S. 66 (1979)).
 In 1970, the U.S. Supreme Court ruled in Williams v. Florida that at least six persons is “large enough to promote group deliberation, free from outside intimidation, and to provide a fair possibility for obtaining a cross-section of the community.” But note also that in Ballew v. Georgia (1978), the Supreme Court ruled that reducing the number of jurors below six created a “substantial threat” to the sixth amendment.
 “Twelve persons selected at random are likely to be a cross-section of the people as a whole, and thus represent the views of the common man.” Lord Denning
 See, Robert J. MacCoun & Tom R. Tyler, “The Basis of Citizens’ Perceptions of the Criminal Jury: Procedural Fairness, Accuracy, and Efficiency,” 12 Law & Human Behavior 333, 338 (1998), cited in Bandes, Susan A., “Protecting the Innocent as the Primary Value of the Criminal Justice System,” Ohio State Journal of Criminal Law, Vol 7:422-423.
 See, Jonathan Haidt, a psychologist who argues that people are not good at identifying and correcting their own assumptions and biases. The Emotional Dog and Its Rational tail: A Social Institutionist Approach to Moral Judgment, 108 Psychology Review 814 (2001).
 P. 117, Thomas, George C. III, “The Supreme Court on Trial: How the American Justice System Sacrifices Innocent Defendants”, Ann Arbor: University of Michigan Press, 2008.
 See, Antoine Garapon, “France-United States: Two Different Ways to Reach Legal Truth”, http://www.europeaninstitute.org/Documents/france-united-states-two-different-ways-to-reach-legal-truth-by-french-magistrate-antoine-garapon.html
 “France ends ‘costly’ jury trial experiment,” Dan MacGuill, The Local, 19 March 2013, http://m.thelocal.fr/20130319/france-ends-jury-trial-experiment
 “The Case Against Plea Bargaining,” Timothy Lynch, Cato Institute, Regulation, Fall 2013.
 “A Broader Right to Counsel”, New York Times, March 22, 2012, http://www.nytimes.com/2012/03/23/opinion/a-broader-right-to-counsel.html?_r=0
 Schulhofer, Stephen, The Plea, Frontline, PBS, http://www.pbs.org/wgbh/pages/frontline/shows/plea/interviews/schulhofer.html.
 President Obama commented in the aftermath of the Zimmerman acquittal that “[…] When Trayvon Martin was shot, I said this could have been my son. Another way of saying this is Trayvon Martin could have been me, 35 years ago.” http://www.cnn.com/2013/07/19/politics/obama-zimmerman-verdict/index.html.
 Lord Devlin