A reasonable doubt about jury trials

Americans disagree endlessly about some provisions of their Constitution. The debate over the Second Amendment "right to bear arms" involves wildly different interpretations. That's not surprising — 18th-century grammar is very fuzzy and today's gun lobby is not.

I find it much more surprising that there is apparently zero disagreement over the Sixth Amendment.

In the U.S., jury trials have been the way to deal with criminal charges since 1791. Granted, back then a jury made up of commoners was seen as the embodiment of democracy and popular sovereignty both in Revolutionary France and America. Judges were part of the establishment, had a sweet spot for kings, authorities and the ancient regime, and just couldn't be trusted.

Even Germany, as usual the revolutionary latecomer, enshrined the right to jury trials in its 1848 constitution.

However, 100 years and several empires, republics and constitutions later, almost all countries in Europe had given up on the people's jury in favor of judges who got their positions in a democratic society based on qualification and integrity rather than class, connections or pedigree.

The main reason these societies did away with the people's juries of commoners or peers? According to French legal scholars it was l'incompétence of lay jurors as legal decisionmakers. I tend to agree with them and not just because I grew up in the German Rhineland, where people have a penchant for everything French.

Why would you want to be tried by a jury, unless you are O.J. Simpson? Who wants 12 legal amateurs who need bias training and a judicial crash course when you can be tried instead by three or four professional judges who have actually studied the law, been in a courtroom before and know what sine ira et studio means ("without passion and anger")?

This scenario seems more reassuring to me than 12 jurors whose credentials are based, as in the Derek Chauvin trial, on completing a questionnaire and agreeing to stop watching the news.

I have always been amazed by the trust U.S. authorities put in surveys and questionnaires. One of the questions on the immigration forms that flight attendants used to hand out shortly before one landed in the U.S. was: "Have you ever been involved in genocide or in persecutions associated with Nazi Germany or its allies between 1933 and 1945?"

I doubt that any of those elderly German tourists in the 1980s who had places like Auschwitz in their unofficial job résumés cheerily checked the "yes" box before they passed through customs and climbed into their rental cars.

In its defense of jury trials, the National Judicial College doesn't mince any words on its website: "Trial by jury is a unique part of America's democracy. Most countries do not have jury trials. It is one of the things that make us unique as a country, and something we should be proud of."

It is hard to imagine that the Founding Fathers, well-traveled and with a truly cosmopolitan outlook as they were, would today subscribe to such boneheaded parochial nonsense.

But maybe I am underestimating the honesty and legal acumen of my fellow Americans and it's just my European arrogance that finds the Sixth Amendment outdated.

After all, the U.S. is not the only country on the planet that still uses grand juries to bring criminal charges against defendants. There are actually two — the U.S. and Liberia.

Henning Schroeder is a former vice provost and dean of graduate education at the University of Minnesota. His e-mail address is schro601@umn.edu and his Twitter handle is @HenningSchroed1.