The jury has gone missing from the American legal system. The statistics may be familiar to you, but in case they aren’t, juries today decide only 1–4 percent of criminal cases filed in federal and state court. They decide even fewer civil cases—less than 1 percent of them. And in most states, grand juries do not decide whether serious cases proceed against criminal defendants. Some civil cases do not even make it to the court system and instead are decided by other bodies such as agencies or arbitrators. In the few cases that juries hear, almost invariably their decisions can be questioned through procedures such as judicial acquittal, judgment as a matter of law, remittitur, and caps on damages.
Despite this phenomenon, a myth pervades American society and other countries that the American jury has significant authority. In fact, when the United States is compared with other nations, we see that some countries have lay participation that is arguably more vibrant—with, for example, citizens taking part in sentencing, or countries having lay verdicts that can’t be overturned.
With this level of jury participation, deference, and revitalization elsewhere, it makes one ask: What has happened to the American jury?
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