Jury of Your Peers

Marvin watched nervously as the jurors filed into the courtroom. None of them looked friendly. In fact, they looked mean. They all glared as if they’d already decided his guilt, even though the trial hadn’t even begun.

Swallowing thickly, Marvin tried very hard to look innocent. The tattoos on his cheeks—the ones that read DEADLY and KILLER—probably didn’t help. He should have listened to his mother. Too late, too late.

But as he noticed something else, he sat up straighter in the hard wooden chair. All of the jurors were at least twenty years older than he was, and unlike him, not a single one wore the purple braids indicating that he or she worshiped the Great Agapanthus Goddess.

Excited, Marvin poked his lawyer. “Hey! Hey!” Marvin whispered. “It’s a miscarriage of justice. It’s not a jury of my peers!”

Marvin’s lawyer gave him a pitying look. “I’m afraid I have bad news for you.”

Marvin’s screwed.

The language about a jury of one’s peers is old, having first appeared in the Magna Carta in 1215. Because I’m a nerd, here it is in the original Latin:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

And here’s the translation:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

The Latin word parium had a very specific intention back in the 13th century. It meant the members of a jury had to be no lower in social standing than the defendant. And since the primary purpose of the Magna Carta was to limit the rights of the king with respect to what he could do to other members of the nobility, the barons who wrote the thing weren’t intending to protect common people at all.

Flash forward half a millennium and across the Atlantic. When James Madison wrote the 6th Amendment to the US Constitution, he was certainly influenced by the text of the Magna Carta (and by the English Constitution):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But look what’s happened: there’s no mention at all of peers.

As a matter of practice, the 6th Amendment is interpreted to mean that a jury must be fairly representative of the community in which the crime took place. Not precisely representative, and not the same as the defendant himself. This means that potential jurors can’t be excluded because of certain factors, such as race, religion, gender, and so on. But in reality, juries are generally comprised of people who are older and more affluent than defendants—in part because poor people can’t afford to lose income while serving on a jury.

So where does this leave Marvin? Nowhere good, unless he can prove that the prosecutor systematically excluded young potential jurors and those who were loyal Agapanthans. Proving that is very difficult, though.

Marvin should have listened to his mother.


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