Trial by Jury Term Paper

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Trial by Jury -- a right that must be upheld, in part

One of the most controversial issues today in the area of criminal justice is that of the right of all defendants to a trial by jury of his or her peers. Often, as seen in the pairing of the essays of the noted defense attorney, media personality, and Harvard Legal scholar Alan Dershowitz against the words of Christie Davies, the debate can be very polarized. Dershowitz calls juries "Unsung Heroes," stating that "Juries Offer True Justice" in the populist and democratic spirit of America, while Christie Davies's "Trial by Jury Should Be Abolished" takes the contrary view, calling the right to trial by jury an outdated system that was viable only in eras of less complicated legal and technical questions, and in a more homogeneous America.

However, the polarized views of Dershowitz and Davies must be given more nuance with references to actual specifics of the jury system. A further consideration of specific issues and kinds of cases suggests that trial by jury should not be maintained an absolute right. Nor should it be abolished entirely. Instead, the idea of trial by jury can be retained in the American legal system through the use of introducing more exceptions and special courts. Thus, the best solution may be to compromise and to limit trial by jury to specific cases and courts. Having particular courts for particular legal issues, like medical malpractice or other highly technical issues would remedy many of the problems that critics of the current system currently grapple with as legal scholars and moral individuals.

Historically, it is important to remember that when trial by jury was introduced in England to replace trial by ordeal, "it was unquestionably an improvement.

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Trial by jury enjoyed high favor in the enlightened world through the 18th century and was passed from England to the United States. And there it still rests in our Constitution's Sixth and Seventh amendments."(Grenier, 1994) But, Davies and Richard Grenier both point out that "during the last decade ignorant and often quite silly jurors have dished out awards of millions and even billions of dollars" in medical malpractice cases under questionable circumstances, more out of emotional sympathy than legal compliance with their duty as citizens or respect for medical facts and data. (Grenier, 1994)

Even supporters of the jury system question the ability of juries to nullify laws they find unfair. While Robert Anton Wilson believes that "Jury Nullification: Freedom's Last Chance," to have the common man or woman contest bad laws in the justice system, Mark S. Pulliam counters in "Jury Nullification Should Not Be Allowed" that this gives too much power to individuals without a legal background who may be swayed by emotion rather than legal logic. Thus, even within the jury system, a balance must be struck between democracy and legal formalities. With that in mind, many areas of the law already do not include trial by jury as an absolute right for defendants. For example, "in landlord tenant litigation, trial by jury is a rarity. Most leases contain a standard waiver of right to trial by jury, so cases are normally heard in special courts set up for landlords and tenants, with judges appointed from the ranks of legal aid lawyers." (Potch….....

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