The Constitutional Impact of AI on the Jury Trial

In a blog post last year, we mentioned the constitutional implications of replacing jurors with AI. But what exactly does that mean? The answer to this question lies with understanding why juries exist in the first place. In America, the legal source of the jury trial is the Sixth and Seventh Amendments to the United States Constitution. These amendments are part of the Bill of Rights, which sets out basic American civil rights and liberties. But there’s a reason why the jury trial holds this special place in American civic life: it is a fundamental part of the birth of our country, a cornerstone of the American identity, and a symbol of the rejection of tyranny.

Origin of Trial by Jury

Despite this, the jury’s origin story doesn’t begin in America at all. In fact, prototypes of what would become the modern jury trial reach back millennia, but a more reasonable starting point for the scope of this article is 800 years ago in England. In 1215, King John I signed the Magna Carta, which is widely considered to be an early ancestor—maybe “the” ancestor—of our own Constitution. It memorialized the right to jury trial for all English subjects.  By the 1500s, this right began to erode after King Henry VII formed the Star Chamber. While the Star Chamber was initially designed to ensure a fairer process for those believed to be beyond fair prosecution in regular courts, over time its secretive nature created a tool for tyranny and abuse of power as Henry attempted to secure and consolidate power in the British Crown. The United States Supreme Court has described the Star Chamber as “symboliz[ing] disregard of basic individual rights.” The Star Chamber continued into the 1600s, bringing with it efforts to limit to the right to trial by jury. In response to these abuses, the British people abolished the Star Chamber and reasserted their right to a jury trial. By the late 1600s, Parliament would sign the British Bill of Rights, which affirmed and preserved the centuries-old right to a jury.

During the same time, British subjects began colonizing the United States, bringing with them the sacrosanct right to trial by jury which would be reflected in many colonial charters. As colonial dissatisfaction with British rule grew, British authorities sought to suppress the right to a jury trial in order to limit challenges to their power. As a result, the right to a jury trial would become a key issue for revolutionaries and is cited as one of the causes of the revolution. In fact, the Declaration of Independence cites “depriving us in many cases, of the benefits of Trial by Jury” as one of the many offenses committed by the British Crown. By the late 1700s, the Constitution was signed, and the rest, as they say, is history.

Why Juries?

This history reveals a number of important goals and purposes of the jury. First and perhaps foremost, the right to a jury helps to oppose tyranny by placing a decision in the hands of a randomized selection of the general public rather than centralizing this power in the hands of those with power. This has been a key theme in the promotion of the jury trial throughout its 800+ year history. In the U.S. Constitution, the jury trial is treated as a civil right as fundamental as the right to freedom of speech and to bear arms. By the same token, the jury trial also ensures that members of the community are responsible for safeguarding their liberty and rights. This means citizens actively participate in the process of governing, which in turn promotes civic involvement. Consider the fact that jury service is really the only form of civic involvement that is mandatory for nearly all citizens at nearly all economic, social, or political times. Even the draft, which is also compulsory, does not apply at all times or to all citizens. This is a striking fact, and it highlights the fundamental nature of jury service and the potential challenges – or perhaps, limitations – of AI.

AI and Constitutionality Concerns

If decisions in the courtroom were made entirely by AI, the purpose of the jury, quite simply, is thwarted. For this reason, there is an inherent constitutional infirmity in an AI jury: it defeats the very nature of the process and runs totally contrary to the history described above. And yet this infirmity creates a tension with the hypothesis raised in the last article: how does one square AI’s inevitability with AI’s incompatibility with the jury trial?

For starters, there are actual and potential applications of AI within a jury trial that do not implicate any obvious constitutional conflict, particularly where AI is implemented by the attorneys or judge. In fact, the two goals discussed above are really directed at jurors themselves, not others involved in the jury trial process, like judges or attorneys. And, currently, AI is being used by attorneys and jury consultants in connection with jury selection, where synthesizing a high volume of information about jurors quickly is critical. China has also implemented AI-driven automated court systems, and one can imagine similar applications employed by counties and states to automate jury selection for certain cases. There is no obvious constitutional infirmity in these applications (at least regarding the constitutional underpinnings of the jury trial) because they do not implicate the juror’s role in the jury trial process.

What about similar applications as used by jurors themselves? What about live, human jurors using AI to synthesize, simplify, and summarize complex legal concepts in the same way web-based platforms like search engines or review websites handle and manage their content? In practice, this could completely transform preparation of the jury charge and the functioning of the charge conference in a way that makes it more efficient and more accurate. In many ways, this could actually advance the goals above by giving jurors a clearer and more useful understanding of the law they’re being asked to apply, promoting a more reliable flavor of civic involvement and opposition of tyranny. Thus, even the use of AI by jurors does not seem inherently constitutionally unsound, particularly where it does not invade the fact-finding function of the jury.

But what about jurors using AI to synthesize, simplify, and summarize evidence? What about analysis of testimony or witness credibility? A certain level of constitutional discomfort arises if jurors are permitted to rely on anything other than their own wit and wherewithal to assess what happened in the trial. It would also appear to undermine the goals of both civic involvement and civic responsibility by letting jurors off the hook and leaving it to technology, diluting the concept of judgment by a jury of one’s “peers” while also potentially placing power in the hands of the few who are responsible for the technology being employed. Thus, in AI’s application to the law, there needs to be a clear distinction between the use of AI which impact a juror’s assessment of the facts—traditionally considered to be within the jury’s province—compared to that which enhances juror’s understanding of the law—something to be gate-kept by the court.

Yet, despite these philosophical distinctions, tiptoeing around this line of demarcation may ultimately be futile. AI’s use in the jury trial will likely come down to social and cultural attitudes toward AI at the time of implementation. Technology is sneaky, and it has a way of invading our lives without us really minding or even knowing its impact and effect. Moreover, history has shown time and again that there is a tension between the quality-of-life benefits promoted by technology on the one hand and upholding lofty ideals on the other. Constitutional ideals are not necessarily immune to this, and AI will likely test the limits of our constitutional ideals over time.

My own prediction is, as with virtually all technological innovations, AI will shift or displace more than it eliminates. Rather than erasing our constitutional ideals, AI will cause them to be gradually rewritten in a way that accommodates AI. In addition, it will probably be quite some time before people are ever comfortable eliminating all human oversight in the courtroom, especially when the stakes are higher and the issues at hand are more emotionally charged as in family and criminal law cases.  This oversight will almost certainly have a tempering effect on the re-writing process. Fortunately, we are the authors of this revised narrative, and even the act of doing it can promote the kind of opposition to tyranny and promotion of civic involvement that characterizes the jury. Perhaps, then, there is no inherent conflict after all.