The rise of “CourtTok” on TikTok and self-appointed “stay-at-home jurors” is amplifying drama and polarization in our justice system — and the Lindsay Clancy mistrial is only the latest firestorm. Social media toxicity surrounding high-profile cases quickly takes on an apocalyptic tone, with many commentators fearing for the future of juries and jury trials across the nation.
Yet the jury’s future is not nearly so bleak as it seems. And CourtTok, we propose, can serve a key role in the jury’s resurgence.
For too long, judges and lawyers have ignored the very real barriers that we — the supposed guardians of the jury trial right — place between citizens and jury service. We force prospective jurors to wait in cramped courthouses for days on end. We provide laughable compensation, little or no support for parents and caretakers and jury selection processes often stuck in the technological stone age. When jurors complain, we respond with canned speeches on the importance of civic duty. Yet, after that civic duty is performed, we sometimes fail to provide necessary safeguards for juror privacy — as the holdout juror in the Clancy trial surely can attest.
Jury trial rates have been plummeting for decades, down to about 1% of cases today. In our forthcoming book, “The Jury’s Out: The Fight to Save the American Legal System,” we document many of the reasons why this has happened. In short, our Founders envisioned the jury as a core, populist check on the power of all three branches of government — executive, legislative and judicial. But power doesn’t like to be checked. Those same institutions have eroded the jury’s power over generations, while the public remains largely unaware of the attrition of their right to shape our justice system.
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Indeed, our Founders granted us just two constitutional paths to participate in this democracy— voting and jury duty. People mobilize en masse when their right to vote is threatened; we don’t see similar activism about the jury trial right, because most citizens remain unaware that this constitutional right has been, and remains, under siege.
Social media debate around the Clancy mistrial — and increasing public attention to jury trials in general — presents a golden opportunity to reform and empower American juries. CourtTok influencers, and their audiences, can wield their power in favor of concrete improvements to the jury system. More importantly, they can draw attention to the importance of the jury as the people’s voice in our court system, and help sound the alarm about the chronic attacks on it.
And CourtTok doesn’t have to start from scratch. Many pro-jury reformers currently are working on initiatives that would help the jury trial reemerge. Examples include virtual reporting for jury service, field-tested during the COVID-19 pandemic; providing childcare and mental healthcare for jurors; and much more. Efforts to reduce the cost and delay in litigation, make juries more representative of their communities and increase data transparency also are underway in many corners of our country. These measures should be celebrated and expanded.
But for that to happen, we need the general public — and CourtTok — to join the fight.
In most states, judges are elected, either directly or by retention elections. Countless judges and judicial candidates will be on the ballot in November. One of the challenges voters face in judicial elections is determining how to evaluate one candidate against another. The jury presents a concrete and bipartisan issue that voters can use to distinguish candidates — by asking them what, specifically, they have done or will do to protect and promote the right to trial by jury.
Voters shouldn’t be fooled by empty platitudes devoid of substance. Candidates who truly care about the jury should have concrete proposals to make jury service more accessible and to empower litigants in their courtrooms to exercise their jury right. Of course, not every new reform or experiment will succeed in revitalizing jury trials. But we must be willing to experiment, for if we do not, the jury trial and the populist power embedded within it will become relics of a forgotten past.
Fresh off our nation’s 250th birthday, it’s time to demand the jury — a right so foundational to our democracy that it appeared in the Declaration of Independence — be protected and rehabilitated. Our judicial system is complicated, often frustrating and fundamentally imperfect. Yet our Founders believed that a jury consisting of a cross-section of a community would inject a dose of lay wisdom into our dispute-resolution process and that this perspective would help balance and calibrate our judicial system.
The jury is the people’s check on power, and it is the people who must defend it.
Pierre H. Bergeron is a retired Ohio appellate judge and professor at Centre College in Kentucky. Shannon Price is a professor at the University of Kentucky Rosenberg College of Law. They are the authors of the forthcoming book “The Jury’s Out: The Fight to Save the American Legal System.”
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