Want to save money on jury trials? Try paying jurors!

I support the jury system as I support democracy: it is the worst system of justice around, except for all the others. My own experience of serving on a jury was inspiring in some ways, frustrating in others. The current Labour government wants to abolish them for all but the most serious cases. Assuming Sir Keir Starmer and Mr David Lammy MP are sincere in their claim that all they want to do is speed up justice, are there any better ways to do that than denying the accused their ancient right to a jury of their peers?

David Friedman was recently summoned to present himself for jury service in the US. He seems to have been sent home without ever reaching the jury-box. I have the impression that the the American courts turn away a higher percentage of those called to jury service than the UK courts do, and also that they make much more of a fuss about excluding jurors who might be biased, which over there often seems to mean in effect excluding jurors who might be intelligent. Despite this and many other differences between the two systems, not all of which favour the UK, I think that Professor Friedman’s observations on the careless way in which jurors’ time was wasted might be relevant to us here. The underlying reason Friedman and his fellow jurors (or whatever the word is for people who are called to be jurors but are not chosen) got to know every crack in the courthouse wall was that the people who have power to speed up or slow down cases pay next to nothing for the jurors’ time. Friedman writes:

What most struck me, as an economist, about the process was the implication of its having access to nearly free labor — there was no payment for the first day, fifteen dollars a day thereafter. The courthouse was towards the south end of the county, about half an hour’s drive from me, forty-five minutes from the north end. We were told that the jurors were selected at random, with no attempt to select jurors for cases in the south courthouse from the south end of the county — because doing that would have biased the selection, how was not explained.

Out of more than eighty of us called in only about twenty-one were put through the voir dire process. The rest were presumably there in case more were eliminated, but it is hard to see how that could justify calling in that many. A jury system that took the value of our time seriously could have called in half as many, perhaps fewer, and, if that occasionally turned out not to be sufficient, additional candidates the next day. By the end of the first day they knew that they had most of the jurors they needed, could have saved most of the rest of us the time and the trip.

Further evidence is how our time in the courthouse was used. We arrived the first day by nine, were sent home at four, a total of seven hours on site. Of those seven hours we spent most of an hour waiting to be told what room we were to go to, an hour and a half for lunch, two hour long breaks. We were actually involved in the jury selection process for less than three hours out of seven.

That again looks like a result of treating our time as a free good, but I do not know enough about what else was happening to be certain. Running a trial, even the preliminaries to a trial, involves coordinating the activity of multiple people: juror candidates, the judge, the attorneys, perhaps others. My guess is that if the county had to pay a market rate for our time they would have found a schedule that used it more efficiently but I could be wrong.

I have so far interpreted what I observed as evidence that the people responsible did not care how much of our time was spent in the process, since our attendance was compulsory and the price paid for it low, on the first day zero, but there is another possible interpretation of the evidence.

Free Audience
Much of the time we were in the courthouse we were being preached to, largely about the virtues of the jury system, first in videos while we were waiting to be assigned to a jury room, later by the judge, who described the jury system as the essential support of a free society. He did not mention that, in the current US legal system, less than a tenth of felony defendants get a jury trial, with the rest of the convictions due to guilty pleas, mostly from plea bargains. A defendant who rejects the offered plea bargain and goes to trial risks a much higher penalty.

The judge and the videos repeatedly told us that, if we ended up on the jury, we were to decide the case on the basis only of information presented at trial, ignoring anything else, especially warning us against going online to get relevant information. That sounds reasonable but is in fact impossible. Each juror’s interpretation of witness testimony depends on his view of how truthful people are, how to tell when they are lying, how likely the events they describe are to have happened, an enormous body of information based on previous experience. There is no way to reach a verdict on the basis of nothing but trial evidence. As a Bayesian would put it, no posterior without a prior.

The judge and the videos repeatedly praised us for our contribution to the process, never mentioning that it was mandatory, that we did not have the option of refusing to come.

We were being told things the judge, the trial apparatus more generally, wanted us to believe, told them by authoritative sources at little risk of being contradicted. Not only was time we spent in the courthouse not a cost to those running the process it may have been, from their point of view, a benefit.

Friedman is undoubtedly right to say that “Running a trial, even the preliminaries to a trial, involves coordinating the activity of multiple people: juror candidates, the judge, the attorneys, perhaps others.” He goes on to speculate that “if the county had to pay a market rate for our time they would have found a schedule that used it more efficiently but I could be wrong.” I remember once travelling several hours by train to a company’s headquarters to discuss a commercial project. Sweet young thing that I was, I pointed out that if they held the meeting a quarter of an hour later I could buy some sort of saver ticket and save them more than a hundred pounds. They declined to do so. The nice man who spoke to me was at pains to say that this was not because he did not care about saving his employers money, it was because when you added up the cost of the time of all the attendees, the fuss and time involved in changing their schedules would probably cost more than my £100-plus. I believed him on that, even if I didn’t entirely believe that he was as careful with the company’s money as he would be with his own.

In the US jurors are paid very little. In the UK jurors are technically not paid at all, but can claim allowances to cover lost earnings – which works out OK for those with predictable salaries but badly for those with uncertain day-to-day income, especially if their business depends on them being available. If we paid jurors more but changed nothing else, juries would be even more of a burden on the taxpayer than they are currently. But is it crazy to think that if, somehow, those running the process were made to bear more of the costs of calling jurors then they would have an incentive to streamline things? We may not wish to make as much use of plea bargaining in the UK as the US does, but I know from long airless hours in the waiting room of a Crown Court building with a broken air conditioning system that those who operate the British justice system, which mostly means judges and defence and prosecution lawyers, like their American equivalents, do not directly pay for the time of jurors and therefore waste it in the manner that human beings commonly do waste that which someone else pays for. The “someone else” in this case being the insensate generic taxpayer. We in the UK do not even have the minimal incentive to save money that comes from “the county” footing the bill; here it is all paid for centrally by the Ministry of Justice. Rather than rip up the ancient jury system to save a few quid, could we not achieve the same object by, say, making more use of video calls? (Do we make more use of video calls since the pandemic, and I missed the memo?) Or if not the video calls, something else. This random blogger may not be able to think of ways to improve the system, but I bet people who work with it every day would be able to, given the incentive. History abounds with people who ceased to get a resource for free and suddenly discovered ingenious ways to use that resource more intelligently. The difference between this and what Sir Keir Starmer and David Lammy want is the difference between wielding an axe and a scalpel.

If we paid jurors more we could trade the extra money for indulging them less in other ways. When did it stop being the case that jurors were denied light, fire and sustenance until a verdict was reached? CoPilot says 1670. ChatGPT says 1825. Roll on the Butlerian Jihad: I know for a fact that it was still true in 1930 when Harriet Vane stood trial for the murder of Philip Boyes. In that case, which took place before majority verdicts were allowed, the artist and that redoubtable spinster Miss Climpson held out for Not Guilty and forced a retrial. The artist alarmed the rest of jury by saying that he was accustomed to late nights and a stale atmosphere and had not the slightest objection to sitting up all night and Miss Climpson also said that in a righteous cause, a little personal discomfort was a trifle, and added that her religion had trained her to fasting.

Perhaps it would be going too far to bring back that rule in its full vigour. Those were the days when, as Alexander Pope put it in his satirical poem The Rape of the Lock, “Wretches hang that jurymen may dine”. The stiff-necked jury of which Edward Bushel was the foreman deserve their plaque in the Old Bailey and their place in British legal history. But maybe it would speed matters up if we, while paying jurors decently for their time and allowing them a reasonable level of comfort, stopped letting them go home at night. Making jury sequestration mandatory is another thing that I think might save more money than it costs in the long run. It would curb the abuse of the requirement for disclosure when, for instance, the defence electronically dumps a vast number of documents on the prosecution most of which are irrelevant but which the prosecution must read anyway, and feels obliged to pass on in only slightly reduced form to the jury. Come to think of it, it would reduce the use of disclosure, which was a reasonable safeguard against injustice being done when reproducing a document involved typewriters and carbon paper but has become an impediment to justice when a million words can be sent at the touch of a button. I see no reason to believe that fraud trials “being more complex nowadays” and hence taking months or years is an unalterable fact of nature. Were fraud trials inherently less complex – or less fair – a hundred years ago?

Readers learned in the law can probably think of many things wrong with the somewhat random set of proposals I came up with in this post. The wider point I want to make is that if Messrs Starmer and Lammy really seek only to speed up the legal system there are better ways than amputating one of the legs upon which it stands. Some of those ways could involve simply going back to doing things we know work because they did work.

The aforementioned case of R v Vane is also relevant to David Friedman’s point that “Each juror’s interpretation of witness testimony depends on his view of how truthful people are, how to tell when they are lying, how likely the events they describe are to have happened, an enormous body of information based on previous experience. There is no way to reach a verdict on the basis of nothing but trial evidence.” Indeed so. As Lord Peter said of Miss Climpson:

They bullied her a good deal, of course, because she couldn’t lay a finger on any real weakness in the chain of evidence, but she said the prisoner’s demeanour was part of the evidence and that she was entitled to take that into consideration. Fortunately, she is a tough, thin, elderly woman with a sound digestion and a militant High-Church conscience of remarkable staying-power, and her wind is excellent. She let ’em all gallop themselves dead, and then said she still didn’t believe it and wasn’t going to say she did.”