Why do we have jury duty? And how reliable are juries, really?

Ahead of his first-ever jury service, GBH’s Morning Edition co-host Jeremy Siegel asked legal analyst and Northeastern law professor Daniel Medwed about the history and the current-day practice of jury trials. This transcript has been lightly edited.

Jeremy Siegel: So, Daniel, in two days, I am going to be part of a jury, potentially part of a jury. I have to report for jury duty, which is something I've actually never had to do in my whole life.

Daniel Medwed: Is this congratulations or condolences?

Siegel: Yeah, I think more condolences in my case. I'm not actually super excited to potentially be doing jury duty.

Medwed: To fulfill your civic duty, Jeremy.

Siegel: Well, that's true. I guess I will be fulfilling my civic duty as an American citizen. So tell me a little bit about how that became a thing. Why is it a thing that I have to do jury duties? What's the background and the history of how this became a thing in America?

Medwed: Sure. Like so many aspects of our legal system, we inherited it from Ye Olde England, and the first juries in England date back to the Middle Ages. They were called juries of recognition, and they were used in land disputes. Members of the community would come forward to recognize, from memory, who had received title to particular parcels of land from William the Conqueror. That's sort of the origin. And then by the 1400s, it evolved, and it looked a little bit like it looks today, where juries serve as finders of fact. They collect evidence, they evaluate the evidence, they weigh the credibility of witnesses, and ultimately render a verdict. So the right to a jury trial now in the United States is enshrined in our Constitution. For criminal cases, it's in the Sixth Amendment and for civil cases, where a certain amount of money is at stake, it's in the Seventh Amendment.

Siegel: So I'm hearing that I have England and William the Conqueror to thank for my jury duty.

Medwed: Exactly. It's a straight throughline from William the Conqueror to Jeremy Siegel.

Siegel: So I know that juries aren't the case for every criminal situation. Someone can waive their right to a jury and try their luck before a judge too, right? Why would that be the case?

Medwed: On the one hand, the rule of the road essentially is: If you're in a criminal case in particular, and the facts are really gory, really gruesome, a defendant might opt for a judge — it's called a bench trial — instead of a jury, based on the idea that the judge has sort of seen it all and won't be swayed by the gruesome, gory details of the case; can be more objective and dispassionate; and dispense justice in a way that might be more measured than a jury, that could be inflamed by these facts. On the other hand, that calculus differs depending on the orientation of the judge. If the judge is really punitive, really tough on crime, it might be a very different equation. And you might want to go with a jury even in a case with bad facts, because all you have to do is get one juror on your side to vote to acquit. Then you can hang the jury and get a mistrial.

Siegel: Okay. So that was actually going to be the next thing that I asked about here: in order to be convicted of something, or to be acquitted, you need everybody in the jury to be on the same page?

Medwed: Yes. This idea of jury unanimity in criminal cases is an interesting one. And actually the Supreme Court only resolved it definitively relatively recently, in a 2020 case called Ramos. So here's the background: In Ye Olde England, common law unanimity was the norm. You had to have unanimous juries in criminal cases. And there's an instance of one of these from like 1367. And this idea of unanimity crossed the pond, and it's a part of federal law and virtually every state law. However — and this is what sort of interesting — there is nothing in the Constitution explicitly that talked about unanimous juries in criminal cases. So Louisiana and Oregon were outliers for a long time, and they allowed people to be convicted based on votes that are 10-to-2 or 11-to-1 in favor of conviction. They both backtracked.

Those states have backtracked from that in part because the Supreme Court, in that 2020 case I mentioned, finally said, hey, you know what, the Sixth Amendment right to a jury trial under our federal Constitution implicitly carries a requirement that the jury verdict be unanimous. And therefore, we should have unanimous juries in the states as well. That hasn't stopped Florida and Governor Ron DeSantis from making waves about going back to non-unanimous juries. But I think as a matter of constitutional law, it seems like unanimous juries are here to stay in the criminal case context, at least.

Siegel: So, Daniel, as you were talking about people coming to a consensus, everybody agreeing on something in order for there to be an acquittal or a conviction, it made me think about how difficult that could be for a bunch of ordinary citizens performing their civic duty, and all of the debate that happens behind closed doors between jurors. I guess I'm curious about why someone who gets caught up in the criminal justice system for one reason or another and ends up in a jury trial — why should we trust the system, at the end of the day?

Medwed: I'm not so sure we do. So here's the theory is this, and then we'll talk about the practice. The theory is that you bring 12 fair and impartial citizens who represent a cross-section of the community harmed by the crime, usually within the county, the jurisdiction. If you bring them all together, they'll bring their disparate experiences to the fore, and through a full and frank conversation in the deliberation room, without outside influence, without outside supervision, they'll arrive at a just outcome. That's sort of the theory. You get 12 different people from our very diverse country, bring them all together in a room to talk about facts, and essentially a good result will occur.

But the practice is much uglier than that, right? Because there are a lot of tools in the tool chest of prosecutors in particular to shape the jury in a particular way. There's a very sordid history in the United States of prosecutors using what are called peremptory challenges — you can challenge jurors for no articulable reason in criminal cases — that they were challenged based on racial bias. For instance, in a case involving a Black defendant, prosecutors would often try to craft all-white juries. There have been Supreme Court cases that have said you can't do this, but there are a lot of pernicious activities that could be done. Also, another reality of this, of course, is that 12 people in a room won't necessarily all have their voices heard and respected equally. There might be one person who dominates the conversation. It's sort of unclear what the dynamics of the deliberation room might be. So I'm actually pretty skeptical about whether juries work or not.

Siegel: So real quick, Daniel, before I let you go, let's say someone, after having this conversation wasn't too excited about their jury duty coming up in a couple days. And in theory, let's say you wanted to get off of a jury. How would you go about doing that?

Medwed: I can't imagine anyone would want to do that. Certainly nobody that I know and talk with at least weekly would ever want to do that. I think, Jeremy, essentially you can be excused what's called for cause, if there is some cause. If you have a conflict of interest, you have a financial stake in the case, you know one of the parties — that's sort of easy. You're going to get bounced for that. If you have a clear time commitment that makes it impossible for you to serve, a judge might actually allow you to leave as well. If you express misgivings about the case, for instance, you say, 'I could never convict somebody. I don't believe in criminal justice. I don't believe in prison.' That might also be a basis for getting a bounced. Unfortunately, Jeremy, being the co-host of Morning Edition isn't necessarily an excuse because you have Paris who can help out. You are indispensable to us, but, you know, possibly you could have one day off or one week off to do your civic duty.