01/06/2015 12:35 pm ET Updated Mar 08, 2015

Measuring Justice One Case at a Time

There's a notion that floats through the mainstream consciousness, through the mass media, and even among tender-footed law students and fledgling attorneys about the word "justice": It's some kind of objective and tangible substance. Yet people's upbringing and background, culture, education, and unique experiences help sculpt their concept of justice. Humans like facts. There are twelve inches in a foot, a hydrogen atom has one electron, the world's tallest tree is a sequoia, thirty-five is a prime number, and so forth. These statements are concrete, clear, and demonstrable. They are ideas that are easy to wrap our minds around, black-and-white scenarios that work well for us. They're simple--no muss, no fuss. Such "truths," however, rarely exist in the courtroom, where cases are put together like jigsaw puzzles. In pursuit of justice, we still have to smoke out the truth. So how do we do that? The answer isn't simple, and it can never be found with the empirical consistency of a mathematical equation. We can search for it only by using the same attributes that make us fundamentally human.

At its core, the American criminal justice system is adversarial. But there is a reason it is built that way. Juries show us that manmade law is often distinct from a higher principle, namely, justice. The truth can never be taught or dictated; it is something we must decide for ourselves. Influential political philosophers such as Immanuel Kant and G. W. F. Hegel have suggested that, by presenting a thesis or a certain position and then offering an antithesis or counter position to it, we can discover a more fleshed-out, objective reality. Our human minds naturally crave the truth, but we need the presentation of competing narratives to get us there. In this way, an adversarial process is the only way for jurors to have well-founded, legitimate confidence in their decision. As such, trials are often called "a search for the truth."

The Greek philosopher Aristotle taught us that democracy's strongest virtue is its ability to draw "collective wisdom" from ordinary members of society. Like all of us, American jurors have psyches wired to perceive facts against a backdrop of their own life experiences. It is through the lens of their norms, values, and culture that jurors must grapple with whether to punish a fellow citizen. One juror might view a particular point as shocking and therefore give it a lot of weight. Another juror might barely be fazed by the same information and never give it a second thought. Each of us builds an ontological hierarchy of priorities that is inextricably linked to our judgment. To be sure, the strength of the evidence presented is the best predictor of any verdict, but the aggregation of the perspectives of twelve jurors weaves a fabric of collective wisdom that is more in tune with the human condition than any individual fact finder could be. Additionally, the jury in a criminal trial in the United States must find that the charges have been proven beyond a reasonable doubt before rendering a guilty verdict. Unlike in civil court, where one person sues another for money and whoever has 50.1 percent of the evidence wins, criminal trial jurors don't get a neat percentage. They are merely instructed that the burden of beyond a reasonable doubt is met if they have "an abiding conviction" in the truth of the charges, a standard that even veteran attorneys have trouble explicating and quantifying. Ultimately, the application of this amorphous standard spurs the jury to filter their factual determinations through their own conscience before passing judgment.

Today, jurors are explicitly admonished that they are to act solely as fact finders and that they must follow the law given to them by the judge. Nevertheless, a historical perspective remains instructive regarding how a jury's determination of what the facts are is inextricable from the jury's application of the law to those facts in reaching a verdict. Those who fought for America's independence believed passionately in the jury's right to disagree with the government and the law. Founding father Alexander Hamilton contended, "Jurors should acquit, even against the judge's instruction . . . if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong." An act known as jury nullification once gave jurors the right to ignore the evidence and acquit, even if the defendant were technically guilty. The pages of history display instances of the jury's exercise of its prerogative to disregard uncontradicted evidence in the name of justice; the most often commended examples are the nineteenth-century acquittals of defendants prosecuted under the fugitive slave law. Jury nullification is, appropriately, no longer an explicit part of jury instructions and attorneys are prohibited from directly arguing for it, but it inherently survives as more of a de facto power. Jeffrey Abramson, a scholar and former prosecutor who has studied juries extensively, writes, "As long as we have juries, we will have nullification and verdicts according to conscience. Some of the verdicts will outrage us, others will inspire us. But always nullification will give us the full drama of democracy as citizen-jurors assume on our behalf the task of deliberating about law in relation to justice."

Because there really are no cookie-cutter criminal cases or fungible criminal defendants, we need juries to act as a counterweight to legislative and political incentives that drive us toward a one size fits all criminal justice system. While relying on the human variable in a court of law denies us the serenity of predictability and the harmony of absolute consistency, we have yet to find an adequate substitute for the moral judgment and the collective societal wisdom that a jury provides. Famed Russian novelist Aleksandr Solzhenitsyn wrote, "Justice is conscience, not a personal conscience but the conscience of the whole of humanity." In this way, the jury system strives to transcend personal and institutional agendas, narrow-mindedness, impulsiveness, and irrationality, but there are countless examples where verdicts have been unconscionable. As Winston Churchill once similarly said about democracy, juries might be the worst form of administering justice, except for all the others.