People v. State

Wendy McElroy has posted at the Daily Anarchist her second article in a series on free-market justice. This one asks what role, if any, Trial By Jury would have in a society from which the State had been eliminated. My comments in the comments section on the article include the following:

I think you’re basically right about the jury. I might quibble slightly with this: “Moreover, a jury’s presumed right to judge the justice of the law may also be irrelevant. In a voluntary society, the ‘laws’ being enforced would either protect person and property from aggression or be a matter defined by contract. In this context, for a jury to pass judgment on the propriety of the law would be akin to allowing them to pass judgment on the propriety of voluntary interaction itself.”

In a “government” of “laws” rather than “men” (i.e., legislators and other law-makers and “rulers”), the “jury” or “judges” would still need to “determine the law and the facts” (i.e., what Justice requires) in the case before them. This determination should presumably be informed by how similar cases have been decided in the past. The real value of a “jury” of 12 is in its numbers and in the requirement that they be unanimous in convicting a defendant of a crime “beyond a reasonable doubt” before depriving him of liberty. Most people accused of a crime would want this protection rather than having their case decided by a fewer number of judges, and it seems that a society which valued liberty more than our own would be hard-pressed to justify denying such traditional protection to defendants. Of course, the number 12 is not inscribed in the natural law, and how a free society might go about forming such juries to decide cases remains an interesting question.

. . .

I like your [commenter HRearden’s] idea of a pool of professional jurors / judges from which juries could be formed. (It would be good to eliminate the distinction between judges and jurors. The selected jurors could choose from among their number a “foreperson” to also preside over the trial and act as “judge.” The jurors could themselves rule on such questions like the admissibility of evidence.) This would of course get around the problem of impressing into service randomly selected individuals for little or no pay who may or may not be qualified to sit in judgment over others. How the jurors voted in previous cases would presumably be available to the litigants and eliminate a lot of the guesswork that is now inherent in the voir dire crapshoot. You could have juries of 3 or 12 or any number in between (or more than 12?) depending on the seriousness of the case.

. . .

I’m actually okay with the idea of a conviction despite one lone holdout voting to acquit. [On second thought, I’m only okay with the idea of a re-trial in this circumstance, not a conviction.] Two (or more) holdouts, on the other hand, is almost by definition a pretty clear indication that their doubt is “reasonable.” By the way, this is one area where our current system of justice is a complete farce and contradicts the constitutional principles on which it’s supposed to be based. If 10 jurors vote to convict and 2 vote to acquit, that’s not an acquittal but a hung jury, and the defendant can be tried again, in spite of the constitutional prohibition against Double Jeopardy. Hell, if 11 jurors vote to acquit and 1 votes to convict, it’s a hung jury and the defendant can be tried again.

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