Commentary Magazine


Juries on Trial

In recent years, a series of highly publicized criminal trials in which obviously guilty defendants were acquitted by juries (or convicted only of much lesser offenses than they had actually committed) has made the American jury a controversial institution. Civil juries have rendered some astonishing verdicts as well, ladling out billions in other people’s money with insouciance and attracting a drumbeat of criticism from the business community. Concern has also been expressed about the sheer cost and the protracted nature of jury trials and about the hardship to jurors of having to sit through lengthy trials, increasingly under the glare of the television camera.

The growing controversy over the jury, part of a growing dissatisfaction with the American way in law in general, makes timely the publication of two well-written and informative books, one by Jeffrey Abramson, a lawyer and political scientist, the other by Stephen J. Adler, a journalist.1

The scope of these two books is different. Abramson’s concern in We, the Jury is almost exclusively with criminal cases. Canvassing the scholarly literature—mainly historical and psychological—but supplementing it with discussions of real cases, he tells the story of the jury’s transformation from a body of neighbors, expected to decide a case deliberatively on the basis of their first-hand knowledge of the parties and the facts and their shared understanding of the law and of the moral temper of the community, to a group of strangers, carefully selected to know nothing about the case but instead to “represent” racial and other interest groups in our heterogeneous modern society.

Adler’s The Jury covers the civil as well as the criminal jury, and it is primarily anecdotal. He has reconstructed a number of recent trials with the aid of the recollections of the participants (including the jurors themselves), and he bases his evaluation of the jury system and his recommendations for improving it mainly on these reconstructions.

The problem with both anecdotage and case studies as proof is that in a society as vast, various, opulent, observed, and complex as modern America, such evidence can make any pathology, however rare, seem common. Still, anecdotes make for a good read, and some of Adler’s are shocking indeed, as when he notes, with reference to the $10.5-billion award against Texaco in a suit by Pennzoil for interference with contract, the jurors’ later explanation “that they had added $1 billion to the award for each of the Texaco lawyers they had most despised.”

Of the two books, Abramson’s is longer and deeper, but is marred by sentimentality. Adler’s is more hard-headed, but probably a little too pessimistic. This difference can be traced to the authors’ priorities. In ideology, Abramson is a populist, enthralled by the spectacle of ordinary people sitting in judgment; he asks us “to treasure the particularly rich conversations a democratic assembly inspires.” By contrast, Adler, the legal-affairs editor of the Wall Street Journal, although he pays lip service to the democratic character and function of the jury system, is more concerned with the risk of error that is created when decision-making is handed to amateurs.

Yet to a remarkable extent the authors agree: both that juries make a lot of mistakes and that the system can be improved by paying more careful attention to the selection of jurors and to the procedures employed injury trials. I can therefore commend both books to anyone interested in the American jury system.

_____________

 

But I want to offer a contrasting perspective, based partly on my own experience as a federal appellate judge who has from time to time conducted civil jury trials in the federal district (trial) courts of Illinois and Indiana, and partly on what I have heard and read. (To the extent that my account is itself anecdotal and impressionistic, it should be discounted accordingly.)

To get a proper grasp on the subject it is necessary to have in mind three sets of distinctions, none of which engages the attention of either author: between the jury in the United States and the jury in the rest of the world; in the United States, between the jury in state courts and the jury in federal courts; and, again in the United States, between juries in civil and in criminal cases.

Ours is not the only nation that uses juries. But it probably is the only nation that uses juries to any significant extent in civil cases; and in criminal cases, it almost certainly uses the jury more frequently than any other nation does.

Granted, if we ask not about the use of the jury but about the use of lay persons as adjudicators, the international contrast is blurred a bit. Quite apart from the growth of arbitration, some nations, notably Germany, use mixed panels of professional and lay judges in some cases. But with all necessary qualifications, the continued salience of the jury in American civil and criminal adjudication is in striking contrast to the practice in the rest of the world. We got the jury system from England; England has virtually abandoned it.

This unique fidelity to the jury system is in large part a legacy of the American distrust of officials, and in small part a testament to the political power of trial lawyers. The distrust has its root in colonial times, and is reflected in the constitutional guarantees of the right to trial by jury in federal courts in most civil and almost all criminal cases. Yet the same distrust is even more deeply entrenched in the state courts, where it is reinforced by the low professional quality and rampant politicization of many of the state judiciaries, led by Texas. Distrust of officialdom retards the funding of government at levels that would enable better officials to be obtained, and the resulting poor performance of the officials strengthens the distrust.

The federal courts are on the whole of higher quality and less politicized than the state courts, partly because federal judges are not elected and have more secure tenure. Yet even the federal judiciary is not a merit system, and there is a large variance in the professional competence of federal judges.

Hence the biggest practical reason for preserving the jury system in the United States: juries often improve the quality and impartiality of adjudication in courts where the judges are weak or political (or corrupt). This point is in tension with Adler’s concern about the competence of jurors, and is not the same thing as Abramson’s belief in the jury as a model democratic institution.

But even if one does not agree with Abramson that discussion among six or twelve nonprofessionals of matters of which they may have no first-hand experience or knowledge is a reliable formula for generating what he calls “collective wisdom,” still, a group of people drawn more or less at random from the population, and charged with careful consideration of a dispute not their own, can offer a useful supplement to a professional cadre of uncertain quality and commitment to justice. It can, in particular, offer a potential leaven of common sense, of familiarity with the everyday world and its denizens, and perhaps even a more perfect disinterest, since jurors have no career stakes in the verdicts they render.

In any case, distrust of officialdom runs so deep in this country that it is unthinkable that today or in the foreseeable future criminal verdicts would be accepted by the public if the accused did not have the right to insist on a jury of lay persons. But the situation is not so clear with respect to civil cases, especially in the federal courts.

_____________

 

It might not be the worst idea—though to adopt it for the federal courts would require amending the Seventh Amendment—to make juries in civil cases discretionary with the judge. In my experience (and the statistics back this up), a civil jury trial takes twice as long on average as a civil bench trial and, what is worse, greatly magnifies inequalities in the competence of the opposing lawyers. Then, too, as Adler’s case studies show, jurors are at sea in dealing with complex cases—cases dealing with modern technology or turning on sophisticated statistical evidence or counterintuitive legal doctrines, or pitting a sympathetic individual against a vast and soulless enterprise. Such cases are common in federal courts.

My experience has been that when a case turns on which witnesses are lying (more), juries do fine; often, the social distance between witness and juror is less than between witness and judge, giving the juror a superior ability to determine the witness’s sincerity. In cases of that sort, I would expect that, under the discretionary regime I have proposed, judges like myself who have led sheltered lives, and do not consider themselves well-endowed with street smarts or the common touch, would convene a jury and defer to its findings concerning the believability of the various witnesses.

But not all civil cases turn on the issue of lying. For complex modern cases, both Abramson and Adler propose a series of reforms to make the jury’s task easier: allowing jurors to take notes and ask questions; authorizing the judge to instruct the jury in the law at the beginning and during the trial, as well as when it is over; and selecting jurors with some eye to competence as distinct from representativeness.

Sensible as they are, I do not think these reforms would have seismic effects. The reason is that they have been made, to a great extent, in the federal courts already. Though practice differs from judge to judge, I have always permitted jurors to take notes and ask questions; I have tried to tell them about the case as it proceeds; I have rewritten the instructions they receive about the law, to eliminate all jargon; I have given them copies of the instructions to take into the jury room for their deliberations, rather than just reading the instructions to them aloud; and I have insisted that the lawyers give the jurors copies of all trial exhibits when the exhibits are first mentioned rather than for the first time when the trial is over and the jury’s deliberations begin. Other federal trial judges do even more than I to facilitate the jury’s performance of its task. That performance, nevertheless, too often remains problematic.

As for the selection of jurors, although the federal court system is nominally committed to random selection, the practice in most federal courts is different. The names of potential jurors are usually taken from the voter-registration lists, so that people whose sense of civic responsibility is insufficient to motivate them to register to vote are in practice disqualified from serving.

The people whose names are chosen in this way are sent summonses to jury duty, but the most irresponsible simply ignore them, and there is rarely any follow-up. Adler says that for the nation as a whole, the “no-show” rate is 55 percent. Next, when the so-far cooperative ones are questioned by the judge as part of the process of selecting a jury for a particular case, those who do not want to serve make up excuses and are usually let off. And then there are the challenges “for cause,” which hive off jurors who are likely to be partial to one side or another; and the peremptory challenges, which enable the lawyers to act on an inarticulable hunch to eliminate some of the prospective jurors who remain.

Those who make it through this gauntlet are not a random sample of the inhabitants of the federal judicial district. They are usually above average in competence, civic-mindedness, and sense of responsibility. Contrary to legend, retired people are underrepresented rather than overrepresented on juries. My impression is that federal juries are extremely conscientious and that when they go astray, it is not because of apathy or laziness but, again, because the case is too difficult for lay people to understand or the lawyers have botched the trial or were unequally matched.

_____________

 

Both Abramson and Adler are concerned that in our zeal to ensure that juries are impartial, we have reduced their quality. It is true that if a juror knows a lot about the subject matter of a case, he is quite likely to be challenged successfully “for cause”; and the lawyer with the weaker case may even use a peremptory challenge to strike him, believing that his client will have a better chance with a confused jury. Abramson wants to abolish the peremptory challenge. But he ignores the factors which I have sketched that raise the quality of the jury, or at least the federal jury, above the average for the community.

He does, however, make an important distinction between two “models” of jury deliberation, and it is a distinction that bears on the issue of selection. In one model, the jury is viewed as a deliberative body. In the other, jurors are viewed as representatives of different groups in the community (racial and sexual, for example), and the jury’s decision-making process as a form of interest-group politics.

Abramson argues that the modern emphasis on representativenesss is consistent with the older, deliberative model as well, because a diverse group of people has collectively more knowledge and insight than a homogeneous group, and this makes for more fruitful deliberations and more robust decisions. I agree in principle, but unfortunately there is no reliable method for forcing jurors to deliberate in good faith rather than to vote their prejudices.

In sum, even though federal jurors are a reasonably select group of people, and are given by most federal judges all the help they could reasonably ask, the jury system in civil cases remains time-consuming and, if the case is complex, unreliable. I think it is romanticizing, or pandering to the “every man a king” strain in American culture, to suppose that average people are deep wells of wisdom with a pumping station in every jury room. And I do not think we need to worry that judgments rendered by the judge alone in civil cases would lack legitimacy in the eyes of the public.

_____________

 

Given his emphasis on the democratic character of trial by jury, it is odd that Abramson does not mention John Stuart Mill’s argument for the jury system: that it gives the common man an education in government, since jurors are ad-hoc officials. How far that argument holds for the modern United States, a nation in which democracy has a much stronger grip than it had in mid-19th-cen-tury England, I am not prepared to say. But I do think that one of Abramson’s democracy-mongering proposals is terrible. Jurors are routinely told that they are required to follow the law, whether or not they agree with it. Abramson proposes that they be told instead, or in addition, that they are entitled to disregard the law.

His argument is twofold. First, if trial by jury is about democracy, jurors should be empowered to make as well as to apply law. But this is to fetishize democracy and ignore competing values. Pushed to its logical extreme (though Abramson himself would not push it that far), it would entitle juries to condemn people who had not violated any law announced before their condemnation. Abramson says a jury’s nullification of the law would “give us the full drama of democracy.” I can do without that particular spectacle. “People’s justice” has a deservedly bad name.

Second, Abramson argues that since a certain amount of jury nullification goes on anyway, sub rosa, it should be brought out into the open. Why? One might as well say that since there is a lot of murder even though murder is against the law, we should repeal the murder statutes.

An invitation to jury nullification is particularly irresponsible at the present time, when racial line-drawing is reappearing in jury deliberations. Abramson is worried about black jurors voting to acquit black defendants in a gesture of racial solidarity (he gives examples), but he is even more worried about discrimination against blacks in capital cases. As he himself points out, however, it is not true that black murderers are more likely than white ones to be sentenced to death. Rather, white or black murderers of whites are more likely to be sentenced to death than murderers (again, regardless of race) of blacks. In other words, juries seem to set a higher value on white lives than on black lives, and this disparity holds even when differences in the age or sex of the victim or the other circumstances of the murder are held constant.

I suspect, however, that the difference is not racial at all, but that it is based on income: in our culture, the lives of middle- or high-income people are implicitly valued at a higher rate than the lives of lower-income people (who are disproportionately black), and it would make no difference whether the sentencing decision were made by a jury or by a judge.

For the near future, at least, we are stuck, for good or ill, with the jury system, civil as well as criminal; and the sensible reforms proposed by Abramson and Adler—reforms already in place in most federal courts—will bring about only modest improvements. But, and here I embark on the treacherous waters of social prophecy, in the long run the jury, or at least the civil jury, is probably doomed.

As American law and society become ever more complex, the jury’s cognitive limitations will become ever more palpable and socially costly. The modern jury is too expensive, and not only in time—though time is what the courts have least of. As Abramson points out in one of the most interesting chapters of his book, in big cases nowadays each side is likely to hire one of the growing number of consulting firms that use the techniques of social science to advise on jury selection and on effective communication with jurors. Abramson believes that the science employed in “scientific” jury selection is spurious. The market disagrees. Whoever is right, there is no doubt that the use of these consultants adds to the expense of trial by jury and may not improve the accuracy of verdicts. It also magnifies the effect on case outcomes of disparity in resources between litigants. Pity the poor litigant who cannot afford a jury consultant, but whose opponent can.

Already the American jury has been cut down quite a bit. In the federal courts and in most states, the standard civil jury is now down to six persons from the traditional twelve. There is a danger of a vicious cycle here, since the smaller the jury, the more erratic its performance is likely to be (because it is a smaller sample of the population), so that reducing the size of the jury can itself impair the rationale for trial by jury.

In addition, more and more states do not require that the jury be unanimous, and this makes for shorter and—Abramson argues—more perfunctory deliberations, since holdouts need no longer be convinced that their position is incorrect. So again, an effort to make the jury cheaper also makes it worse; a reduction in administrative costs is offset by an increase in error costs. Finally, a diminishing percentage of all trials are jury trials, as crowded dockets cause judges to resolve more and more cases at an earlier stage or push litigants into alternative methods of dispute resolution.

There are also signs that judging is becoming more of a career in the United States, as judicial hierarchies lengthen and more and more judges climb the lengthening career ladder over a period of many years. As the judiciary becomes more dependably and predictably professional (though possibly less interesting), the felt need for supplementation by lay persons will diminish. The benefits of the jury will have declined just when the costs are rising.

So perhaps some day we will outgrow the jury. Still, for now, it is very much with us, and anyone wishing to understand it could do worse than consult these two books, despite their joint and several deficiencies.


Footnotes

1 Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (Basic Books, 308 pp., $25.00); Stephen J. Adler, The Jury: Trial and Error in the American Courtroom (Times Books, 285 pp., $25.00).

About the Author

Richard A. Posner is a senior lecturer at the University of Chicago law school and a judge on the U.S. Court of Appeals for the Seventh Circuit.




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.