Stereotypes about U.S. law

Sometimes the evening news programmes on the ARD and ZDF channels on German TV suddenly showcase a film. Quite a few years ago, it was Koyaanisquatsi. Later, Lola rennt – perhaps understandable that they would be interested in a very successful German film. They even seemed to think that Rossini had an international future – I liked it, but I didn’t think its references would translate outside Germany.

In the last couple of days, there was a very long plug for the latest Grisham film, Runaway Jury. And this plug was constructed to criticize the American jury system. They even had a clip of Dustin Hoffman saying how many mistrials there have been, and all the fault of the jury.

I don’t know why criticisms of the American jury system make me so hot under the collar. But they are based on a lot of untested assumptions. There seems to be a general belief in Germany that the jury system is completely useless. If the jury system were a perpetuation of injustice as these people seem to believe, it would have gone out the window long ago. How can a public news service suddenly drop its pretended impartiality and sell a film on the basis of unsupported assumptions about a foreign country?

And all at the time when they could be selling a good film like Kill Bill!

4 thoughts on “Stereotypes about U.S. law

  1. Dear Margaret,

    I am delighted to read this entry. I am an American lawyer and scholar who is currently living in Düsseldorf, teaching law at the Uni there. I just love living in Germany, and I quite enjoy teaching my students about American law.

    Like you, my patience has worn thin, and then vaporized entirely, concerning the issue of the American jury system. Not that I’m its biggest defender — I represent death row inmates in Texas, and frequently raise claims concerning the jury’s conduct in a particular case. I am also in favor of reforms to the jury system.

    But the kind of smug, sneering ignorance about the jury that I encounter among students and even professors drives me ’round the bend. Like you, I have often encountered, and had to parry, the Stella awards hoax. I have also gotten the following question more than frequently: how can you possibly allow ordinary people to make such an important decision as whether someone should be sent to prison or not?

    I have a two-track approach to this. The first is the academic track — a brief lecture, intended to highlight the aspects of American culture (distrust of governmental authority, a greater belief in direct popular participation in important government decisions, etc.) that make the jury system not only inevitable, but prized among Americans.

    The other approach is cruder, but often staggeringly effective. That is to cite the example of the hundreds of German judges who, during the 1930s, sentenced German citizens to prison, deportation, or death for the crime of racial pollution. [If they question whether this actually took place, as some incredibly do, I cite them to Ingo Müller’s fairly definitive “Furchtbare Juristen,” which leaves no doubt as to the virtually universal complicity of the German legal profession with Nazi abuses.]

    I then pose a simple hypothetical. As it actually happened, one politically-accountable judge made the decision whether someone should be brutally punished or killed for merely having “illicit relations” with a non-Aryan or, respectively (and with much graver consequences), with an Aryan. Now imagine that, instead of one judge, twelve ordinary German citizens were empowered to make this decision. And that their decision had to be unanimous. And that they were free to remain anonymous.

    This means that, if even just one member of the “jury” — just one — decided he or she could not stomach ending someone’s life or taking away their freedom because they loved the wrong person, that accused would go free. And even if the accused were convicted, the jury would also have to agree, unanimously, on what punishment was appropriate.

    How many lives might have been saved? How many injustices could have been prevented? Certainly not all, by any stretch of the imagination. But some.

    Of course, this analogy is flawed, and doesn’t tell the whole story. But it gives them some understanding of why the legal institution of the jury might be desirable, even if it is not necessary for all cultures. And, most importantly, it drags them out of the narrow rut of cultural complacency.

    Thanks for your interesting blog! I look forward to more entries.

    Andrew Hammel
    Düsseldorf, Germany

  2. I – from London, but now in Vienna – can understand your frustration and have heard most of the well-rehearsed pro- and con- criminal AND CIVIL jury arguments. Austrians – with their own Geschwornen (not Geschworene)gerichten in criminal trials – need no persuading.

    Maybe you ought to ask your doubting German students whether such an important matter as political suffrage/the right to vote in a new German government – peviously called Franchise in the UK before MacDonalds came along – can be left to ordinary people.

    As my first law lecturer exclaimed to us students on the eve of a UK referendum in 1970 to enter the EU: ‘how can such an important issue be left to so many people who don’t know (ignoramuses)?’

    Although I understand your confidence in the jury system as a bulwark agains injustices, I’m unsure a German jury during the Nazi period could or would have stood up to ‘Hanging Judge’ Roland Freisler from Upper Bavaria during his well-know tirades from the bench.

    He no doubt would have thrown out a jury verdict – as indeed Pontius Pilate could have done in Roman-Occupied Israel – and had all the jurors hanged.

  3. Andrew, sorry not to get back earlier. Of course the jury system isn’t perfect, but what is? What I’ve been wondering, since I cooled down, is why this outrage about common-law juries.

    I understand certain stories become urban legends because people like telling them, but only if they believe they are true. The telling of supposedly true stories about what went wrong in the legal system is surely enjoyable. These stories obviously do the rounds in the USA too. But for Germans, for example, to join in the hooting seems inappropriate to me.

    Adrian, you know that there are Schöffen (lay judges) in German criminal courts too, no doubt, even if they are not called Geschworne. I suspect many German law students, given information, will change their minds. – I’m not sure what advantage you think judges would have had over a jury in a court in the Third Reich.

  4. Yes, Margaret. I know the lay-judges Schöffengericht system in Germany, as I assumed German law students – paradoxically – would too. Maybe they don’t see the contradiction in supporting a lay-judges bench and rubbishing an all-lay jury.

    However, as you know, judges and lawyers are now eligible for jury service back in the UK, so can explain in the jury room the irksome exclusion of the jury when judge and Counsel are discussing ‘points of law’ (disputed confession, previous ‘tainted’ acquittals, similar fact evidence – the defendant has done it all before).

    My póint was that Andrew interestingly seems to think a jury could have saved miscarriages of justice in the Third Reich. I certainly don’t believe unstoppable judges like Freisler – now lying in an unmarked grave in Bavaria – were preferable to juries when even broad sections of the legal profession in Germany and Austria – with a ‘positivistic’ approach to codified black-letter law i.e. no civil disobedience – were complicit.

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