How Did Jury Duty Come To Be?

It's Wednesday, August fifth. When I was back in Wisconsin a few months ago, I got a jury duty summons in the mail. Turned out I didn't have to go because I don't live there anymore, which was a relief, but it got me thinking about something I've somehow avoided my entire adult life: I've never done jury duty. I've always been on the move, never stayed in one city long enough for the system to catch up with me. And I realized I couldn't really explain how jury duty works, why it exists, or where the idea of twelve random people deciding someone's fate actually came from. So I looked into it, and the origin story starts in a place I wasn't expecting: before juries existed, the way you proved your innocence in most of Europe was by holding a piece of red-hot iron or being thrown into a river. If you survived, God had declared you innocent. If you didn't, well, you were guilty and also dead. Jury duty replaced that, and knowing what came before it makes the $5 a day Mississippi pays its jurors feel like a different kind of insult. For most of medieval European history, criminal disputes were settled through what was called trial by ordeal, and the logic behind it was that God would intervene on behalf of the innocent. In the ordeal of hot iron, the accused would carry a piece of heated metal for a set distance. Their hand was then bandaged, sealed, and inspected days later. If the wound was healing cleanly, God had judged them innocent. If it was infected, they were guilty. In the ordeal of cold water, the accused was bound and lowered into a body of water that had been blessed by a priest. If they sank, the water had "accepted" them and they were innocent, at which point they'd be pulled out (hopefully in time). If they floated, the water had "rejected" them and they were guilty.

These weren't fringe practices. They were the standard legal procedure across England and continental Europe for centuries, administered by the church and sanctioned by the crown. The outcomes were considered divine judgments, and since God was the one deciding, there was no appeal. The system worked as long as everyone believed God was participating, which most people did.

In 1215, two things happened that changed the legal system permanently. The pope banned trial by ordeal at the Fourth Lateran Council, removing the church's involvement and effectively destroying the theological basis for the practice. And in the same year, a group of English barons forced King John to sign the Magna Carta, which included the line: "No free man shall be seized or imprisoned except by the lawful judgment of his peers and by the law of the land." That sentence is the origin of the jury system as we know it. With the ordeals gone, English courts needed a new way to determine guilt, and trial by a jury of citizens emerged to fill the gap. The system that most Americans treat as an inconvenience replaced a system where your innocence depended on whether you could hold a piece of hot metal without getting an infection. The founding fathers considered jury trial so fundamental to a free society that they put it in two separate amendments to the Constitution. The Sixth Amendment guarantees the right to a jury trial in criminal cases. The Seventh Amendment guarantees it in civil cases. No other right in the Bill of Rights gets mentioned twice.

And juries have a power that almost nobody knows about, including most people who serve on them: jury nullification. A jury can vote to acquit a defendant even if the evidence clearly shows they broke the law, and no one can punish them for it. If all twelve jurors decide the law itself is unjust, or that applying it in this specific case would be wrong, they can simply say "not guilty" and that's the end of it. The judge can't override them. The prosecution can't retry the case. The verdict is final. This power was established in 1670 when a London jury refused to convict two Quakers for illegal preaching, and the judge jailed the jurors for their refusal. A higher court freed the jurors and established the principle that juries cannot be punished for their verdicts.

Lawyers are generally not allowed to tell jurors about nullification during a trial, and judges actively discourage it, which means most people who serve on juries never learn they have this power. Whether that's a feature or a bug depends on how much you trust twelve random people to override the legal system, but the power exists and it's been used throughout American history, including by Northern juries who refused to convict people accused of violating the Fugitive Slave Act.

The irony of all of this is that the right the founders considered important enough to protect twice is now something most Americans actively try to avoid. Only about 2 percent of federal criminal cases go to trial at all. Nearly 90 percent end in plea deals, which means a jury never hears them. The system that was supposed to stand between citizens and government power is, in practice, bypassed in the vast majority of cases. The most practical reason people avoid jury duty is also the most straightforward: the pay is terrible and the financial burden falls hardest on the people who can least afford it.

Mississippi and New Jersey pay jurors $5 per day. Texas and Missouri pay $6. Illinois and South Carolina pay nothing at all for state court service. The national average sits around $22 per day, and federal courts pay $50, which is still below the federal minimum wage for an eight-hour day. Most states don't require private employers to pay their workers during jury service, which means that an hourly worker called for a two-week trial loses two weeks of income and receives somewhere between nothing and a few hundred dollars from the court to compensate.

Hourly workers can't afford to lose two weeks of income for $5 a day, so they claim hardship or don't show up. High-income professionals get out through scheduling conflicts, employer pressure, or attorneys who know how to navigate the system. The people who end up actually serving tend to be retirees, government employees whose agencies pay them during service, and people who don't push back. A Cornell Journal of Law and Public Policy analysis found that the jury pool ends up skewing older and less representative of the community it's supposed to reflect, and enforcement of no-show summonses is inconsistent enough that many people skip it without consequence.

The funding gap is almost comically small relative to the principle at stake. Connecticut, which pays jurors $50 per day, one of the highest rates in the country, spent less than $500,000 total on juror compensation in 2017. For a state with a $23 billion annual budget, the cost of fairly compensating the people who make the justice system function is a rounding error, and most states haven't bothered to round up. The right that was important enough to enshrine in two constitutional amendments and that replaced a system where guilt was determined by whether you could survive being thrown into a river pays less than a parking ticket in most jurisdictions. I've never served on a jury, and until this week I didn't think much about that. Now I'm not sure whether I got lucky by avoiding it or whether I missed participating in one of the few things the Constitution asks ordinary citizens to do. The system replaced trial by ordeal, got enshrined in two amendments, gives twelve random people the power to override any law on the books, and pays them five dollars a day for the trouble. However you feel about it, it's worth understanding what you're being asked to do and what came before it.

Stay informed, stay curious, and we'll see you tomorrow.