accepted as true all facts/evidence and any conclusions from the facts/evidence, including that which was improbable. If the court decided that there was a claim, the party won the case, and if it decided that there was no claim, the party lost the case.

Juries decided most cases. After a jury verdict, a court held limited authority. A court could order a new trial if it thought there was insufficient evidence to support the verdict. However, if another jury found for the same party, the court would not disturb the verdict. The court also could question damages in cases—such as contract cases—in which certain damages were awarded. In those cases, the court could order a new trial if it deemed the damages excessive. Again, if the second jury found the same amount of damages, the verdict would stand.

As already described, the American jury is now much different than its English predecessor. Some have argued that the English jury should not serve as the model for the American jury. After all, the English eliminated that system. However, the American Constitution was based on the English system. Moreover, unlike the English system, which could be changed by Parliament, the constitutional authority of the jury cannot be taken away without a constitutional amendment.

In the past, the American jury was much more similar to the English jury. In fact, in a series of cases in the early years of the United States, the Supreme Court decided the jury had significant power under the Constitution. Later, however, it determined that other bodies held power over the jury or shared authority with the jury. For example, the Supreme Court initially decided judges could not decide criminal cases instead of juries. After some years passed, the Court decided to permit defendants to choose a judge instead of a jury. Similarly, the Supreme Court first decided that once a jury decided for one party in a civil case, a judge could not decide for the other party. Subsequently, however, the Court held that a judge could decide against the party that the jury favored.

Essentially, the jury in the United States has become an advisory jury, in some ways comparable to the systems in China and in Iran. Unlike in those countries, however, the Constitution in the United States grants the jury power in three different provisions and does not grant judges or other governmental bodies significant authority over them. But over time, prosecutors, legislators, and judges have taken away the American jury’s authority.

Despite the myth of the powerful American jury, other countries like France arguably have more vibrant lay participation in the cases in which lay jurors sit (even though in the United States lay participation is theoretically available in more types of cases). For example, in France, plea bargaining does not exist for cases eligible for jury trial. A mixed panel of three judges and six lay people decides guilt and also participates in sentencing (in which jurors in the United States do not participate). Moreover, another panel of three judges and nine lay people can review the case de novo on appeal.

My book argues that the jury should be restored in the United States because it was intended to serve as a check on prosecutors, legislators, and judges. I further assert that the jury is the right body to decide questions of whether someone committed a crime or whether damages should be paid to another.

Research has shown that judges and jurors share many characteristics including the inability to ignore inadmissible evidence and certain irrelevant information. Judges have additional characteristics that make them less competent to decide. Unlike jurors, who are screened by others for their bias, judges screen themselves. Recently self-screening led a judge to act improperly. Years earlier, as a prosecutor, this person had recommended the death penalty in a case. Later, he sat as the chief justice on the highest court of the state, which considered whether the death penalty should be reinstated in the case. Despite the obvious conflict, the judge refused to recuse himself and decided to reinstate the death penalty.

In addition to the conflict of screening their own biases, judges, unlike lay jurors, have incentives that may interfere with their decisions. For example, if a judge is subject to re-election, the judge may decide in a certain way to be re-elected. In the previously mentioned case, the judge had campaigned as being tough on crime and enforcing the death penalty. Also, judges, unlike jurors, may face some of the same parties repeatedly and may favor or be biased against them. Similar to judges, the executive and the legislature—have similar biases and incentives that jurors do not possess. Moreover, for the most part, there is little screening for such biases and incentives, and if so, these governmental departments self-regulate.

Although the jury is imperfect, it is the best body to decide most criminal and civil matters. The power of the jury is even exhibited in the criticized O.J. Simpson and McDonalds cases. In the Simpson case, the prosecution had a tough case that was marred by mistakes in who was permitted to examine the crime scene as well as how they presented the evidence. All of this was in an atmosphere of racial tension in Los Angeles. The case showed that prosecutors would be put to the task of proving their cases. In connection with this, if a jury had not tried the case, the racist protagonist Mark Fuhrman who had examined the crime scene likely would not have been discovered.

The McDonalds case was also important. The documentary Hot Coffee exposed the number of complaints that McDonalds had fielded before this incident and the significant injuries, including the possibility of death, that the plaintiff experienced. If a jury had not decided the case, McDonalds would not have been held responsible for its actions in the same way that public exposure provided. For these reasons, my book, The Missing American Jury, argues that the jury should be restored in the United States, and it should also play a more vibrant role in many other countries.

(Note: Professor Thomas is the author of The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge University Press. 2016))