"It's always difficult to keep personal prejudice out of a thing like this. And wherever you run into it, prejudice always obscures the truth. I don't really know what the truth is. I don't suppose anybody will ever really know. Nine of us now seem to feel that the defendant is innocent, but we're just gambling on probabilities--we may be wrong. We may be trying to let a guilty man go free, I don't know. Nobody really can. But we have a reasonable doubt, and that's something that's very valuable in our system. No jury can declare a man guilty unless it's SURE."
--Juror #8 (12 Anrgy Men)
A couple of nites back I watched the classic film 12 Angry Men. Henry Fonda plays a juror who, unlike his eleven peers, does not believe that a murder verdict is a slam dunk in their particular case. Instead, he argues that the accused has a right to equal treatment under the law, and that members of the jury, despite their biases, are responsible for carefully considering the evidence vis a vis the law.
One premise that grounds our legal system is that an individual is innocent until proven guilty. The accused is not required to say a word in his/her behalf. Instead, it is the responsibility of the prosecution to make the case.
Another premise is that the basis for determining guilt is careful consideration of the evidence versus the law. The law is the reference standard for right vs wrong. The evaluation is done by a jury. Once the evaluation is completed, the jury votes on whether the accused is guilty or not.
Perhaps the most compelling feature of this process is that a guilty verdict cannot be rendered unless the jury vote is unanimous in that direction. Presumably, this reduces the probability of an error interpreting the evidence versus the law, which could occur even when the evaluation is done objectively--i.e., an 'honest error.' It also reduces the chance of subjective bias, particularly one held by the majority of jurors, can tilt the vote.
How would this process differ if a guilty verdict was based on a democratic, or majority, vote? The movie certainly suggests the consequence that many more guilty verdicts would be rendered--and rendered based on personal bias rather than on objective comparison of the evidence versus the law.
My sense is that most people, if asked, would not want demcracy in this process. "In matters of the law, we want to be as sure as we can," might be the rationale.
Yet, how can we reject democracy for rendering judgement on the law if the underlying law has been developed democratically? Are not the same individual biases present when we develop law as when we interpret law? How can we ensure that the law itself provides for equal treatment if a majority vote can inject the whims of the many against the few?
Many of the Founders expressed concerns about democracy for this reason. In the Constitution, the primary explicit safeguard against this was a required 2/3 'supermajority' in passing laws that had been previously vetoed by the president. However, no such supermajority was specified for 'first pass' legislation.
Why the inconsistency in the Constitution? The best answer I can produce is that the Founders were betting that judicial review would check bad bills produced from bad legislative (and executive) process from becoming law. That check disappears, however, when the court possesses interest.
As it stands, I'm not sure how true justice can be rendered when the underlying basis for legal interpretation, the law, is written by mob rule.