Over the course of time, human activity has become increasing complicated as we have acquired the means to address our daily needs in more sophisticated ways. Our more complex approach to every day problems manifests itself in everything from the way we prepare our food to the manner in which we travel from one place to another. Our increasing sophistication was soon reflected in more complex ways of interacting with others and more complex ways of regulating that interaction. By necessity, law must address the relationships of citizens and must evolve over time as those relationships change and take on new dimensions. In many ways, our criminal justice system has reflected just such an evolution. More and more activities have become prohibited over time and thus law becomes a more difficult proposition for the layman. In response to this reality, the criminal justice process soon came to be dominated by lawyers who represented both the victim (and eventually the state) as well as the accused. Soon, it became de rigueur for criminal defendants to be represented even if they were financially unable to retain representation.
Just as lawyers were a natural reaction to a more complex criminal justice system, so too was the advent of the more professional judiciary. Judges and magistrates with formal legal training soon came to preside over nearly all criminal proceedings. The days of the lay judiciary were nearly over. Yet, as the participants to the process and the laws applied in the process continually evolved over time to reflect the more sophisticated and complex nature of human interaction, perhaps the most important participant of all--the jury--stayed the same. The jury that makes the ultimate findings of fact in criminal trials is in most respects no different now than it was over 200 years ago. While it is true that the composition of the jury pool has evolved over time to reflect the more diverse nature of our population and the process of selecting a jury has changed to more fairly choose a jury representing a fair cross section of the community, the circumstances in which the jury is the method of fact-finding have not changed. It is the static nature of our criminal jury process that is the subject of this paper.
Clearly, the trial by jury in criminal cases is one of the bedrock constitutional rights afforded criminal defendants in the United States. As the Constitution states, "The trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed ..." (1) Yet, the Constitution is a living document that has been interpreted and amended over time to reflect the changed circumstances of a growing and expanding United States. Why, then, is it that the use of the jury in criminal cases has not evolved as well. Surely, the case for such a change can easily be made. As law in general has become more complex, so too has criminal law. (2) White collar crime involving elaborate financial dealings and misdeeds poses serious questions as to the ability of a jury to sort out the truth. Are juries, which arose in a world in which the criminal code was dominated by crimes of violence and theft, able to achieve accurate results in the modern world dominated by stock fraud, wire transactions and e-mail? The question of jury competence in complex civil trials has been repeatedly asked over the course of many years in the United States (3), yet similar questions have not been asked with respect to the criminal jury. One suspects that this reluctance reflects the inhibitions imposed by the express terms of the Constitution.
Yet, such inhibitions do not exist in the United Kingdom and its government has, since the late 1990s, sought to revise the manner in which complex criminal fraud trials are conducted. After lengthy and acrimonious debate, the British government ultimately obtained authority to suspend the right to a jury trial for those accused of complex criminal fraud--an authority they chose not to exercise. …