Let’s make jurors paid professionals

By William Berryhill

Berryhill

Riverside attorney Joseph Cavallo is paying jurors from a first, deadlocked trial to act as consultants during a retrial. Is his payment of jurors really an attack on our jury system? If so, what’s wrong with the system? Maybe it should be reformed. Maybe it should be abolished altogether. Think about it.

The genesis of our jury system is by no means certain. It first attained systematic development in England. Its basic principle may have been introduced by Anglo-Saxons or Norsemen, borrowed from the Gaelic-Romans or developed from native Celtic customs.

It matters little to whom we are indebted. What matters is that during the last 500 years or so, its development is tilting in the wrong direction and today it is not so well adapted to secure justice between persons as it was when Henry II permitted cowards to decline trial by combat for that by “assize.”

In olden times, the jury was composed of witnesses, selected from citizens of the neighborhood who knew most about the causes they were called upon to decide, and who might refuse to consider the testimony of any or all other witnesses. Now, instead of selecting those who know most about the trial, we select those who know the least.

Instead of “forcing the assize” by getting “twelve good men and true” (excuse the sexist slant, but that is the historical language used to perpetuate the theory) who will agree of their own accord, we now pump law into them they cannot comprehend, saturate them with testimony they are unable to remember and allow lawyers to dazzle them with sophistry to drive out what little law and evidence they might have retained.

Then we lock them up to deliberate to arrive at a verdict.

In simple cases where the law is plain and explicit, 12 people possessing some personal knowledge of the facts may be expected to render a righteous verdict.

But what can be expected of a jury, gathered by chance, where testimony is conflicting, the interests involved are intricate, the law ambiguous and the attorneys able to obscure?

The fact is, our society is becoming too complex for the present jury system.

Maybe we should find a substitute. If a nation is composed of a few people, they can all assemble in council and make laws. But when they become too numerous, and national interests complex, pure democracy must give way to representative government.

If we can trust delegates to make our laws, why can’t we trust delegates to enforce them? Why not elect our jurors and pay them as we do judges and legislators?

Also, there is no magic in the number 12. Five or seven would do just as well.

Why not adopt majority rule in reaching a verdict and make each juror’s vote a matter of record?

Thus we could secure the services of people with some qualifications for the work, fix responsibility for verdicts and save the general public a great deal of worry and time.

It would be cheaper to taxpayers. Trials would be briefer, fewer witnesses would testify and the lawyers would soon learn it to be a waste of time to pontificate and posture.

While a bench full of trained and qualified judges might be the best tribunal, if we must retain the jury system, then why not divide the labor and delegate to jurors some of the responsibility?

Maybe we should put people in the jury box who freely accept the service instead of those who are compelled to serve out of fear of fine and punishment.

• William Berryhill retired as senior vice president and senior attorney for the former California Federal Savings and Loan. He now resides in Henderson, Nevada.