12 Angry Men: The Case Against the Jury

The Original Film

The 1957 film Twelve Angry Men (based upon a teleplay of the same name by Reginald Rose from 1954) is not just one of the greatest courtroom dramas ever made, but one of the best films.

Set in a sweltering New York, 12 men sit to decide whether a teenager who has been accused of stabbing to death his abusive father is guilty. At the start, Henry Fonda playing very much to type, stands alone against the views of the eleven others in wishing to give a verdict of not guilty. Over the course of the film, claustrophobically set in a single room, Fonda persuades the others one by one to change their minds. The evidence is carefully weighed and discussed, and we understand how the majority reached their conclusion, but also how they were wrong.

Legally there is one sour note, when Fonda produces an identical switchblade to the allegedly distinctive one used by the murderer and known to have been owned by the accused. Overall, however, it is a celebration of the triumph of reason and liberal good sense over bigotry. Alongside Fonda, Lee J Cobb as a juror subconsciously motivated by a desire to punish a young man he sees as a proxy for his own son, and EG Marshall as Fonda’s most articulate opponent, stand out.

The Remake

The film was remade for television forty years later, with Jack Lemmon in the Fonda role, and George C Scott in that of Cobb’s. Unfortunately, by then both actors were twenty years too old for their parts, and the film suffers as a result. The stand out performance is given by James Gandolfini, two years before the Sopranos, as a working man who listens to others and has the physical presence to prevent the intimidation of other jurors.

Twelve White Men?

One of the oddities of the film is that the jurors are all men. But women had sat on juries in New York from 1937, and the odds of an all-male jury having been selected would have been around one in 4096. Some states continued to ban women from sitting on juries even into the 1970s, but New York was not one. My guess is that the film is based upon Rose’s experience of having sat on an all-male US army trial.

By the time of the 1997 remake, the diversity of the jury in terms of ethnic background had improved, but the jurors were still all men. The filmmakers try to disguise the oddity of this by having Mary McDonnell appear as the judge, a character missing from the original. Unfortunately, the remake is also marred by the questionable artistic choice of having one of the few black jurors, Mykelti Williamson, play the part of the overtly racist juror, played by Ed Begley in the original.

Liberal Fantasy

Although great drama, 12 Angry Men is a liberal fantasy. The now posthumously disgraced judge Lord Devlin described the jury as the “lamp that shows that freedom lives” but this is romantic nonsense.

The best account of the problems with the jury system that I know of is by Malcolm McCusker QC, formerly the Governor of Western Australia. A version of his arguments for the abolition of the jury (here expressed in relation to a more limited proposal to always give the accused the option of being tried by a judge alone) is best summarised here. (McCusker is also distinguished by having saved two men from a shark off Cuttesloe beach by swimming out to save them and punching the shark in the head. Aged 60.)

Reasons

The single biggest problem with the jury is that,  unlike a judge, they do not give reasons. Reasons serve three important functions in a system of justice. First, they enable others, in particular the victim and the accused, to determine how the decision was reached. Second if those reasons are defective it enables an appeal. Third the discipline of giving reasons requires the decision maker to think through how they are reaching the result. Reasons lead to better decision making. The true lesson of 12 Angry Men is the importance of reasoned decisions, but in the film that only occurs because of the fortuity of one person prepared to stand alone against the rest.

Some supporters of the jury system accept that juries should be required to give reasons, even if only of a somewhat cursory box-ticking type of answers to questions formulated by the judge. Given the general romantic attachment to the jury system, this should be taken as a first step. Once it is taken, I expect that it will quickly lead to the abolition of the jury system as the reasons for many, but not all, decisions are demonstrated to be defective.

Competence

Judges cannot say so out of humility, but they become good decision makers from decades of experience in assessing factual disputes. It is a skill. It is one that some people do not possess, but that can be developed. The idea that anyone off the street is an equally good decision maker is far-fetched.

Juries are not solely concerned with deciding facts, but with applying those facts to the rules that they are given by the judge. My own experience of having sat on a jury is limited, but what I do have extensive experience of is teaching the law to (supposedly) some of our best and brightest young minds. When I taught the criminal law, students were required to spend a week reading the material on, say, provocation in the offence of murder, and produce an essay on the topic. What was very striking was how many did not understand even the basics after having spent a week of study. I vividly recall teaching the old test in DPP v Camplin that required a distinction to be drawn between characteristics of the defendant that went to the gravity of provocation and those that went to the degree of self-control. By the end of each week, hardly any students had understood this. Wisely, the House of Lord in a subsequent decision removed this distinction and introduced a simpler test. Students of law do, of course, become better over time, and more mature third year students would probably have no problem grasping and applying the more subtle Camplin rule. But, for me, it meant that my confidence that juries understood the legal directions they were given, and could then apply them to the facts, was destroyed. It seems far more likely that juries are taking an holistic view of what the just outcome is, and deciding accordingly. That means we are being ruled by men, jurors, and not by rules applied in a legal process.

Exceptionalism

The use of the jury by common law systems is out of step with the approach of most systems from other traditions (which, by population and number, are a large majority). Further the use of juries in criminal trials is an anomaly not just comparatively, but within our own legal system.

At one time, jury trials were also used in civil actions. This died out in England after World War 1 because the pool of potential jurors had shrunk (German machine guns had killed too many of those who could sit). In England today, civil disputes will in practice never be before a jury. The position is different in the United States, where the jury survived in civil actions because the same systemic shock never occurred. Today, there is no serious support in England for an expansion of the use of juries and to see their return in civil disputes. Why not? Because nobody thinks it a better system than trial by judge alone.

The Closed Box

Politically, there are good systemic reasons why lawyers and judges like juries. The decision is anonymised, nobody can point a finger at the decision maker and blame them. There is nobody to hold responsible. This is however a bad reason for the continuation of the jury.

12 Angry Men is attractive as a piece of film making because it purports to offer us a peek into what goes on inside the closed box. No doubt, many, perhaps most, jury deliberations involve an impressive dispassionate weighing of the evidence, and an application of the facts found to the rules articulated by the judge. In order to tell whether that is so in a sufficiently high proportion of cases, we need to let daylight in on this magic, and require reasons to be expressed. Too many people extrapolate from their own experience on a jury, which is a sample of perhaps one, and so of no significance in judging whether they are just.

Lawyers are, temperamentally, conservative. Some who are opposed to change have pointed at the one small study we have, the Thomas Report on whether Juries are Fair. This gave them (largely) a clean bill of health, but I am wholly unpersuaded by this study. First, the sample is too small (see p 9). Second, inevitably, the behaviour of those being studied changes by virtue of their knowledge of being studied.

Conclusion

The best parody of the 1957 film was written by Galton and Simpson for Tony Hancock two years later. It contains the immortal line:

Does Magna Carta mean nothing to you? Did she die in vain?

Unfortunately, I fear that something like this represents the understanding many jurors will have of the law they are meant to be applying. We should be governed by rules determined dispassionately in advance through democratic process. Not by the choices of men. The jury is contrary to the rule of law.