The American Jury System: Is it Really Needed?

According to Alexander Hamilton the Founding Fathers esteemed the virtues of the jury trial. The less enthusiastic of them considered it, at the least, “a valuable safeguard to liberty”; while others regarded it “as the very palladium of free government.”[1] All were “satisfied of the utility of the institution, and of its friendly aspect of liberty.” The jury has been called the conscience of the community, tempering the law’s cold prescriptions with the common people’s values of right and wrong. Closely related is the contention that the jury system satisfies the demand of citizens for participation in government. This infusion of the common people’s judgment, the argument goes, leads to decisions more acceptable to the public.

An important caution distinguishes jury usage in criminal and civil cases. Most of the unrest surrounding the jury in the United States has been with regard to its use in civil cases. Hamilton, for example, held the criminal trial jury in “high estimation,” but was unable to “readily discern the inseparable connection between the existence of liberty, and the trial by jury in civil cases.”

The case for using juries in criminal trials is much stronger. Criminal trials are especially necessitous of public acceptance for several reasons. In every criminal case, the people, represented by the state, are parties. Public funds finance the prosecution of the case sometimes lasting years and often quite costly. And under the “government of laws” concept, the precepts applying to one criminal defendant apply to all similarly-behaving members of the public. When the prosecutor “proves” the defendant’s guilt to the jury, this helps the criminal justice system produce verdicts projecting behavioral norms that the public will readily accept.

Another argument for using the jury in criminal cases is that it protects the criminal defendant against government abuse. Recall Jefferson’s notion of the jury as a buffer against state oppression. Not that the law does not already provide the criminal defendant considerable procedural edges. Special rights and privileges most prominently the presumption of innocence, the privilege against self-incrimination, and the prosecutor’s unilateral obligation to reveal facts unfavorable to its case afford the criminal defendant counterweights to offset the government’s resources and other prosecutorial advantages. Even so, it is probably the constitutional right to jury trial that best ensures the criminal defendant a fair trial. Indeed, statistics show that juries are significantly more likely than judges (acting without a jury) to acquit, particularly when the defendant is accused of a felony.

Proponents also claim juries to be better fact finders than judges. Explicating this view, renowned jurist Thomas McIntyre Cooley said: “The law has established this tribunal because it is believed that, from its numbers, the mode of their selection and the fact that jurors come from all classes of society, they are better calculated to judge the motives,” and “weigh the possibilities than a single man, however wise he may be.”  But like so many other assumptions suffusing trial procedure, the claim of superior jury fact finding will remain untested, awaiting two prerequisites to a dispositive evaluation first, a consensus as to what constitutes effective fact finding; second, using the standards so developed, credible studies comparing the performances of judges and juries.

In response to an extensive judicial survey conducted by the Association of Trial Lawyers of America, one judge wrote:

 “I think that twelve people can decide factual issues as well as any good judge, Oft times, they arrive at a more just result, un-plagued by undue consideration of legal niceties we must consider.”[2]

 One of the “niceties,” however, is the applicable law. When rendering verdicts, juries have a special power to ignore the law, sometimes called “jury nullification” or, more disapprovingly, “jury lawlessness.” If in the opinion of the jury the application of the law to the case at hand would be unjust, the jury can simply ignore the law. And because the commonly used general verdict imposes no obligation on the jury to explain its decision, the jury can do what a judge similarly disposed cannot.

Importance of Jury System and Criticism

Relations between the law and social science were not always so inhospitable. The Supreme Court’s psychological and sociological analysis that attended the Brown desegregation case seemed, at the time, the precursor of a new era of social science jurisprudence.

Imposed limitations hinder jury understanding of the law as well as of the facts. It was previously noted how the wording of the judge’s instructions is often incomprehensible to many jurors. Timing and form strictures further aggravate the jurors’ problems with instructions. Courts withhold instructions from the jurors until after all the evidence is heard. Then they usually must apply the instructions, no matter how lengthy and complex, without benefit of written copies.

A final criticism of the jury system is directed to the selection process: Many of the best potential jurors never serve. Liberal exemption rules account for some of this. Numerous white-collar professionals and other well-educated individuals are exempted if they claim that their jury service would create a work hardship. Their absence does more than detract from the quality of juries. Professionals often mold community opinion, the very element the law seeks in jury deliberations.

Attorney challenges potential jurors who have knowledge relevant to the particular case at trial on grounds that their knowledge biases them. And if the challenge for cause is successfully resisted, the attorney can simply use one of his allotted peremptory challenges. Simply put, attorneys often select jurors for incompetence. In both instances work related exemptions and the loss of such individuals is peculiarly inconsonant with the often sophisticated requirements of jury functioning.

Given this state of affairs, another criticism of the jury follows: The ideal of jury representativeness jurors are supposed to represent a cross-section of the community is honored only in the breach. It is more myth than reality. Therefore, the average jury is arguably not only less competent than the average judge, but also less competent than a random sample of twelve citizens from the community.

Juries substantially prolong trial delay. Courts found nonjury trials to be very short. Over 80 percent were completed in one day, and over 93 percent in two days.[3]  Hans Zeisel, coauthor of the seminal work on jury research, The American Jury, estimates that bench trials (judge sitting without a jury) would be 40 percent faster than jury trials.  The posturing and polemics attorneys employ solely for the benefit of prospective jurors during jury selection consumes much if not most of the time of the jury trial. Use of lay juries in civil cases outside of the United States is extremely rare; nowhere are they used as extensively.

Much of the blame for the length and expense of adversarial trials can be assigned to attorney abuse of the discovery process. Few limits exist as to the number of discovery requests a party can make, as long as the requests are at least tenuously related to the action.

Tell why the jury is fundamental to the American scheme of justice.

The first jury system evolved since Athens by which individuals could seek resolution of their cases from their peers. Henry’s battle with the barons led to one of history’s most ironic twists. His courts’ use of the jury weakened the barons’ courts. In 1215 they retaliated by forcing Henry’s son, John, to accept the reforms of the Magna Carta[4].

Gradually, the jury underwent changes. As lawyers increasingly brought their own eyewitnesses to confirm their clients’ claims, juror-witnesses became subordinated to party-witnesses. The jury slowly transformed into its modern role of hearing witnesses,  rather than acting as witnesses; from fact-reporting to fact finding.

In the American colonies, juries often stood up to the hostile, British controlled judges. In one of the early instances of jury nullification, the jury acquitted Zenger. Thus arose the jury’s widespread reputation in America as a bulwark against oppressive government.

Still another fundamental change in the American jury occurred in the nineteenth century. Until then, juries generally had the right to decide issues of law as well as questions of fact. The Federalists, representing merchants, industrialists and creditors, sought a more predictable trial system, and one more sympathetic to their interests. Judicial control over the legal issues met this need. Nevertheless, following the Bushel case it was still generally conceded that jurors could determine law as well as facts in England and her American colonies. This juries did with regularity.

Two forces impelled the spread of the lay jury beyond England and America. An expanding British Empire exported it to Asia and Africa, while the French Revolution triggered the growth of the lay jury to most of the other nations of continental Europe. Jury use in most of these countries, however, was limited to trials of major crimes. Eventually, the lay jury failed in all but the United States and British Commonwealth countries.” Even England has virtually eliminated it in civil cases[5].

Moving to rationality, the adversary process is questionable in several respects. Consider the attorney’s paradoxical role. Only the attorney informs the decision maker as to the evidentiary facts, yet the attorney will present only as much of the truth as benefits his case, hiding or distorting the rest. The opposing counsel may fill in some of the gaps, but just as likely may be engaged in his own dissembling[6].

Rationality is also lacking in the unsuitability of the adversary process to certain types of disputes, the limitations on the types of court remedies and the dysfunctional nature of much of the process. Lawyer-infused hostility, for example, often magnifies underlying problems. Several premises of the jury system are counterintuitive; some are irreconcilable. Jurors with no legal experience or training are asked to apply abstruse legal rules to often complex facts. No other factfinding process uses adversariality as its exclusive investigatory vehicle, nor total neophytes as the factfinders. Then there is the schizophrenia of the exclusionary rules. They are based on distrust of the jury’s ability to properly consider the excluded evidence, even though the same jurors are presumed capable of understanding and applying complex legal rules the first time they hear them.

Improving the jury system

In fact finding, the jury has notable shortcomings of all the possible ways to get at the falsity or truth of testimony,” observed Frank, “none could be conceived that would be more ineffective than trial by jury.”  Discarding of judicial passivity could help. In jury trials, judicial activism calling and questioning witnesses, including court-appointed experts–could counteract the predicament of a jury hamstrung by procedural limitations on truth-seeking. Of course, by so doing, the American judge risks influencing the jury, as well as calling her own impartiality into question. The issue is whether jury questioning, appellate review and other safeguards render this an acceptable risk in light of the problem[7].

Moving to rationality, the adversary process is questionable in several respects. Consider the attorney’s paradoxical role. Only the attorney informs the decision maker as to the evidentiary facts, yet the attorney will present only as much of the truth as benefits his case, hiding or distorting the rest. The opposing counsel may fill in some of the gaps, but just as likely may be engaged in his own dissembling.

Rationality is also lacking in the unsuitability of the adversary process to certain types of disputes, the limitations on the types of court remedies and the dysfunctional nature of much of the process. Lawyer-infused hostility, for example, often magnifies underlying problems. Several premises of the jury system are counterintuitive; some are irreconcilable. Jurors with no legal experience or training are asked to apply abstruse legal rules to often complex facts. No other factfinding process uses adversariality as its exclusive investigatory vehicle, nor total neophytes as the factfinders. Then there is the schizophrenia of the exclusionary rules. They are based on distrust of the jury’s ability to properly consider the excluded evidence, even though the same jurors are presumed capable of understanding and applying complex legal rules the first time they hear them.

Compounding intrinsic factfinding limitations are numerous strictures imposed by traditional court procedure. Some of the strictures are imposed directly on juries, such as the widespread prohibition of juror note-taking and question-asking. Others impact jurors more indirectly but with as much consequence. Jurors can hardly be blamed for their factfinding incompetence. The trial process is more culpable: Attorneys offer evidence in no apparent logical order; exhibits are introduced without reference to their relevance; evidentiary items are left in abeyance, with nexuses furnished days later, if at all; witnesses rarely have the opportunity to offer straightforward narratives before disrupting objections by opposing counsel (after some objections, the jury must leave the courtroom while the evidential issue is argued before the judge). Absent the ability to ask clarifying questions, this procedural morass presents sizable cognitive impediments to jury factfinding[8].

Tools for jurors

Morgan thought the exclusionary rules presume a jury composed of “a group of low-grade morons.” The exclusionary rules, writes Frank, can “limit, absurdly, the courtroom quest for the truth. The result, often, is a gravely false picture of the actual fact.”

John Maguire, one of the foremost scholars of American evidence law, cautions us against the false assumption that all evidence in a trial which is relevant and probative will be admitted for consideration. The real truth is that courts and legislatures, most particularly in these United States, have over the years made up many rules for excluding from trials a great deal of relevant evidence. Operating these rules has kept judges and lawyers and law professors so fully occupied that they have not yet satisfactorily explored the important questions of evidential cogency. They have been too busy deciding what should be kept out to make, much less teach, systematic appraisal of what they let in[9].

Exclusionary rules blindfold jurors to relevant evidence. But the blindfolding is often based on erroneous assumptions about how such information would influence juror behavior. For example, jurors may not be told that a civil defendant carries liability insurance out of concern that the presumed deep pockets of the insurance company will lead jurors to inflate damage awards.

Distortions produced by the combination of blindfolding the jury and erroneous assumptions can also arise in criminal cases. Illustrative is the situation in state capital punishment cases where the jury is not informed of available alternative sentences if the capital defendant (the convicted murderer) is not sentenced to death, specifically life imprisonment without chance of parole. Exclusion of this information assumes the jury will be uninfluenced by the issue of whether and when the defendant will be released if not executed. In fact, ample evidence exists that jurors do consider the safety of the community in this circumstance.[10]

Criticism of the jury trial does not denote criticism of jurors and juries. For example, psychology professors Saul Kassin and Lawrence Wrightsman staunchly defend juries. But in the concluding remarks of their fine book, The American Jury On Trial, they concede that the jury trial process is problematic.

In retrospect, both the jury and the adversary system were intended as tools to diffuse the power of government. The jury was the vehicle for decentralizing power and imbuing the decision making process with community values. The adversary system also diffuses courtroom power, transferring control of the scope and conduct of the trial inquiry to the parties and their advocates. Yet one cannot help but be struck by the dysfunctionalism resulting from the melding of the jury and adversary systems. Due process, which is the standard by which the fairness of our trials are gauged, presumes a jury capable of understanding the facts and applying the law. At the same time, the adversary system enables the attorney to exploit the weaknesses in jurors which would generally be unavailing against the judge, who is usually better educated, more sophisticated and less susceptible to attorney suasion[11].

Cross-examiners commonly introduce improper matters to the attention of the factfinder through innuendo. For example, attorneys circumvent the rules by inserting their personal opinions in their questions. One of the more insidious tools in the cross-examiner’s arsenal is the presumptuous cross-examination question. This question implies a serious charge against the witness for which the attorney has little or no proof.

A recent mock jury study found that merely posing these questions severely diminished the expert’s credibility, even when the witness denied the allegation and his attorney’s objection to the charge was sustained. This study clearly indicates that the presumptuous cross-examination question is a dirty trick which can sway jurors’ evaluations of a witness’ credibility.

No other part of the adversarial trial spotlights the attorney’s persuasive skills more than the closing argument, or “summation”. In summation, attorneys must base their arguments only on matters already in evidence or fairly inferable from facts in evidence. Not unexpectedly, attorneys view their summation prerogatives broadly. Traditionally, attorneys have a certain rhetorical license in “summing up.” Just as certainly, they repeatedly abuse it. A long-time mischievous practice of attorneys is to insert inadmissible comments during closing arguments. Injecting irrelevant and inflammatory matter, arguing based on facts not in the record, asserting personal opinions or beliefs, and vilifying opposing counsel or witnesses are the common tools. The following appellate court opinion is illustrative[12].

A distinct type of attorney deception is disruptive advocacy. Sometimes referred to as “dumb shows,” this category consists of indecorous behavior intended to distract or mislead the jury. Experts disagree on whether we are experiencing a “litigation explosion.” However characterized, court backlog will continue mounting due to the combination of population increase, the exponential rise of drug cases, the creation of more justiciable rights, and insufficient allocation of resources to the courts. Overlaying all this is the historic American propensity to litigate some of the most common disputes rather than conciliate, compromise or seek nonjudicial dispute resolution alternatives. Concomitantly, trial court adjudication will be available to a dwindling portion of civil disputants. The growing time and cost necessary for litigation will ensure that. Few but the wealthy and powerful will have access to the courts.

Curtailing the responsibility of juror

Understanding the law is often the most difficult task for the juror; legal instructions can be extraordinarily complex and/or long. Nonetheless, this task constitutes a critical interface between community standards as represented by the jury and the accumulated law, with all its nuances, subtleties and idiomatic jargon. The very legitimacy of the jury system is inextricably tied to a successful devolution of the law’s administration from the bench to the jury. Albeit taking a relatively small part of the jury’s time of service, the significance of this process cannot be underemphasized. All the received wisdom of the ages contained in the law is to no avail if the jury cannot understand the judge’s instructions.

As more and more verdicts were reversed on appeal due to faulty instructions, the solution to the problem was the adoption of standardized “pattern” instructions. In 1938, a committee of California judges and lawyers published the Book of Approved Jury Instructions. By 1980, thirty-nine states had adopted some such version of pattern instructions. Impelled by the desire to avoid appellate reversal, pattern instructions nonetheless sacrificed clarity, simplicity and, most importantly, comprehensibility[13].

Some possible future directions of the jury system

In some instances, hopefully rare, the jury simply finds its duties inconvenient. Given the shoddy quality of much jury decision making, many conclude that verdicts survive appeal only because the commonly used general verdict enables the jury to shroud its decision making process. Judge Curtis Bok said, “If we required a reasoned argument in support of the jury’s decision, the jury system would blow up in a week, and hence wisely we do not require it.” We commonly perceive the jury as a popular symbol of democracy. In another sense, however, it is the antithesis of democracy: The jury is not accountable to anyone; its members are anonymous. After delivering the verdict, jurors disappear, leaving no one to blame. Conversely, the judge, being subject in most states to re-election, must be prepared with rational and legitimate explanations for her decisions.

The general verdict intensely frustrates jury critics. They cannot document their criticisms of the system with accurate statistical data because jury deliberations are inviolably secret. Conclusive empirical proof of another claimed jury system deficiency also eludes critics.

Jury competence can be improved in two basic ways: (1) help the jurors, and (2) use better jurors. Regardless of the sophistication level of the particular juror, jury functions–factfinding, deliberation, understanding and application of the law–can be facilitated by various cognitive aids and changes in procedure. A discrete but compatible path to enhanced jury competence is to upgrade the quality of the jury’s composition. Illustrations of both categories follow.

Better juror orientation could enhance jury competence. Current programs–which are now haphazard, varying from state to state, county to county and court to court–could be enlarged to more substantive training sessions. Courts may choose from a wide range of training and education programs to elevate juror sophistication.

Judges can enhance jury competence by eliminating all unnecessary restrictions on jury factfinding and decision making. Permitting certain cognitive aids could improve both functions. Subject to judicial supervision, jurors can expressly be empowered to  take notes,  ask questions,  obtain a daily transcript or videotape of the testimony, and copies of all other evidence,  obtain a written copy or audiotape of understandable instructions once in deliberation and  hear the judge’s instructions before (as well as after) the evidence is presented.

Another constraint which, on balance, is insupportable is the prohibition of juror questions. Juror questioning is rarely permitted. Questioning allows jurors to clarify confusing evidence and fill in gaps in the evidence. Further, the active participation of the jurors should improve their overall performance. This process can also help the attorneys. Questions reveal areas of juror confusion or ignorance which the attorneys may want to remedy.

The issue is not whether jurors should be allowed to ask questions. They should. Rather, the issue is how best to implement this factfinding tool with the proper precautions. At the outset of the trial, jurors should be advised of their right to ask questions. If at the end of a witness’ testimony a juror has a question, the juror can submit to the judge a note containing the question. This avoids the problem of an improper question reaching the ears of the other jurors. If neither counsel nor judge object to the question, it can be put to the witness. If an objection is registered, the judge may revise or reject the question. In some instances, the judge may forestall the question if it is likely to be answered by subsequent evidence; if not, the juror may reiterate the question later. Judges should also moderate the juror disappointment and potential prejudice which may result from a rejected question by explaining why certain questions cannot be voiced. 24 In sum, the absence of insurmountable objections and the lost opportunity for improved jury factfinding compel adoption of what should be an intuitively obvious practice.

Furthermore, this was the reform most desired by the jurors in the Los Angeles survey.Testimony in lengthy trials can easily exceed the ineluctable limits of human recall. This is particularly evident in some of the civil megatrials. For example, the paperwork at the pretrial stage of In re U.S. Financial Securities Litigation 25 reached 150,000 pages in depositions and over five million documents, roughly equal to the height of a three story building. Access to a transcript or videotape of the testimony plus copies of all other evidence of record would permit jurors to review the evidence without relying on human memory, which is notoriously fallible and varies from juror to juror.” 26 Barring use of videotaped testimony denies two possible benefits: It precludes potentially significant enhancement of jury factfinding, and it eliminates the opportunity to substantially foreshorten the trial. Videotapes could complement or replace transcripts by allowing jurors to also review witness behavior and other nonverbal evidence. Besides being more realistic, videotape is infinitely more interesting for jurors than dry transcripts.Videotaping also allows a prerecorded trial. Ohio judge James McCrystal, who presided over the first prerecorded videotaped trial, and James Young, Director of the Ohio Legal Center Institute, identified twenty-one additional advantages to this use of videotape.

Powers of Judges and Jury

Many violations of the criminal law are, in fact, more indicative of illness or other disabilities lack of employment, schooling, or job skills) than of purposeful, dangerous criminality. The availability of treatment, counseling, education and similar options is therefore of greater value to the individual and the larger society in which he or she lives than the symbolic act of his or her conviction[14].

Broadly conceived, criminal ADR also includes the widespread negotiated settlements of criminal cases, commonly known as the plea bargain. The negotiated plea has become a fixture of the criminal justice system. It is a classic illustration of party control of the case: The prosecution and defendant negotiate a deal in which the defendant pleads guilty in return for certain concessions, typically the reduction of charges and/or the promise of a more lenient sentence. In 1970, the U. S. Supreme Court articulated the “mutuality of advantage” rationale for the plea bargain.

The civil counterpart of the plea bargain is the negotiated settlement. American judges today facilitate settlements as never before. Changes in procedural rules empower and induce judges to pursue settlements so aggressively as to revise the traditional passivity of the trial judge. Judges have always used the pretrial conference to eliminate undisputed issues and correspondingly reduce the scope of discovery and evidence to be introduced in trial. Prompted by reinforced procedural rules, judges now integrate a wide array of ADR mechanisms into their pretrial case management. Under their expanded powers, judges make referrals both to court-administered programs and privately funded programs administered by non-court personnel.

In court administered programs, magistrates, judicial colleagues, practicing lawyers or others with no regular connection to the court may nonetheless function as court appointed agents of settlement. Indeed, “the development and application of innovative case management has become a source of prestige and distinction among judges.” 44 Although settlements are negotiated out of court, they remain adversarial because they are conducted “in the shadow of the law,” 45 that is, affected by the probable outcome if the case went to trial. Several new books and many new courses, however, suggest a growing preference for non adversarial negotiation.

Juries exacerbate the problem of attorney domination of trials. Attorneys would not be as consequential without the widespread use of juries. The peculiar combination of inherent lay juror limitations and imposed restrictions on jury functioning render the jury the unwitting accomplice to attorney manipulation. A distinct set of proposed remedies would mitigate the affects of jury inadequacies, adversarial excess and mismatched attorney skills. These measures would empower juries when they are used, and substitute bench trials or ADR in other cases. Irrespective of attorney influence, the use of juries should be reevaluated in a variety of cases. Certainly when lay juries cannot comprehend the facts or law of complex cases, and jury empowerment measures are either not implemented or unavailing, logic and justice militate in favor of replacing juries with more capable decision makers.

Some cases should be removed not only from juries, but from litigation altogether. The American courtroom is badly overextended as a panacea for multifarious social, economic and political problems. Many disputes now brought to trial are clearly ill-suited to adversarial resolution[15]. The best trial reform is simply to refer the disposition of certain classes of conflicts from the jurisdiction of the courts to alternative fora.

Problems of trial justice do not end neatly within the parameters of the adversary system. We cannot look at the trial in a vacuum, blissfully ignorant of cognate problems which do not fit purely within a discussion of trial methodology. Issues peripheral to trial procedure can be weighty, and must be addressed in any larger scheme to overhaul the trial system. Therefore, remedies to such trial-related problems are offered as well[16].

Size of the jury

Unpredictability of jury trial outcomes inestimably impairs the ability of business to furnish needed goods and services at affordable prices. Voluminous pretrial discovery requests and drawn-out litigation deter managers from productive work. The threat of potential liability leads substantial numbers of U.S. manufacturers to withdraw products from the market, discontinue product research and lay off workers. For those opting to stay and compete, available liability insurance dwindles. Predictability, on the other hand, facilitates settlement by decreasing the disparity between the expectations of the parties as to their respective probabilities of prevailing at trial and the likely size of the award and the actual outcome. A more stable economic environment liberates business to take the risks essential to a growth economy.

Several factors specifically contribute to erratic and capricious jury awards. First, a different jury hears every case, lessening the possibility of consistent awards applied to similar cases. Second, the courts use randomly selected laypersons, rather than professionals or a career judiciary. Third, the decision of twelve people is more unpredictable than that of one. Fourth, the general verdict shields juries from accountability or any obligation to explain the rationale of their awards. Last and most importantly, judges do not provide meaningful standards for damages. In fact, the instructions tell jurors that no guidelines exist. Jurors receive only an instruction that the tort plaintiff is entitled to “fair, just and reasonable compensation” for his pain, suffering and disability now and into the future. An obvious guideline would be what each party would have settled for. But jurors are never informed of the parties’ pretrial settlement offers. The result, says Connecticut Superior Court Judge Robert Satter, is that juries “are forced to act blindly, without the most obvious guidelines.”

The lack of damage award guidelines for juries has fostered extremely high awards. In England, juries were abolished in personal injury cases partly because it was felt the damages awarded were unreasonably large. In the United States, juries putatively award higher amounts if the defendant is perceived as having “deep pockets,” that is, wealthy–typically corporations and governments.

U.S. jury damages awards grew markedly in recent decades, far exceeding those prevalent in their foreign counterparts. The most current data comes from one of the Rand studies in 1987. Without guidelines, other factors influence American juries. For instance, although the existence and amount of a plaintiffs insurance coverage is inadmissible, jurors recognize that insurance companies–perceived as both demon and deep-pocket by many jurors usually pay damage awards, and act accordingly. Moreover, plaintiffs’ attorneys and the expert witnesses they increasingly retain have become far more proficient in eliciting large damage awards from juries[17].

A current trend indicates further unpredictability. Recently, smaller juries (less than twelve, typically eight or six) were instituted to realize administrative savings. Such benefits, however, may have dissipated. Smaller juries are now widely thought to increase the likelihood of bias and other sources of irrationality, resulting in more unpredictable and varying verdicts. 54 Evidence exists too that a smaller size impairs the jury’s collective memory. Another disadvantage of the move to smaller juries is that it reduces their representativeness. The irony here is that the movement to smaller juries coincides with recent developments statutes requiring more broadly based jury panels and increasing judicial control over voir dire–designed to increase jury representativeness.

Conclusion

Research also indicates that the vast majority of jurors cannot suspend their decision until the end of the trial . Hence a concern was that preinstruction would further predispose the jurors to prejudge. But a recent study found to the contrary: Preinstructed jurors were more likely to defer judgment.

The best way to accomplish preinstruction without prejudice to either party is by requiring attorneys to submit proposed instructions to the court at the outset of the trial. So informed, the judge can apprise the jury of the basic uncontested legal doctrines involved. Despite the favorable empirical findings of behavioral science, courts have yet to adopt this sensible reform.

As if the delayed receipt of instructions and their lack of written form were insufficiently problematic, juries commonly have considerable difficulty understanding the language of the instructions. They can be highly jargonistic and complex. Yet all the received wisdom of the ages contained in the law is fruitless without jury comprehension of the judge’s instructions. For litigants who can afford them, new communications technologies provide almost limitless advantages. Two recent trends demonstrate the competitive edge communications technology offers. Attorneys increasingly use computergenerated animation to illustrate eyewitness testimony or the testimony of forensic experts attempting to recreate a crime scene. Jurors are immeasurably influenced by such animations. But the high cost of their production–$10,000 and up–supplies another opportunity for exploitation of the great disparity of resources so common between opposing litigants.

Attorneys employ other cutting-edge technologies during trials to advance the interests of their wealthier clients. One such technology is a laser disc retrieval system. Consider the adversarial advantages of being able to project information stored on compact discs–videotaped depositions, photos, documents and other exhibits–onto large screen TV monitors in the courtroom at the touch of a finger. Witnesses may even be confronted with images of themselves giving earlier, contradictory testimony. (This occurred in the King II trial.) The cost of this system, however, can be yet more expensive than computer animations, creating one more instance where superior resources can and do bias trial outcomes.

Works Cited

Baldwin, John and McConville, Michael. Jury Trials. Oxford: Clarendon Press, 1979.

Bates Stephen. The American Jury System. Chicago, IL: McCormick Tribune Foundation, 2000.

Bloomstein J. Morris Verdict: The Jury System. Athens State University, Decatur High School, Gadsden State , Northeast Ala , Sheffield

Brill, Steven, et al. Trial by Jury. New York: The American Lawyer/Touchstone/Simon & Schuster, 1990.

Daniels, Stephen and Joanne Martin. Civil Juries and the Politics of Reform. Evanston, Ill: Northwestern University Press, 1995.

DiPerna Paula Juries on Trial; Faces of American Justice, New York: Dembner Books, 1984.

Feigenson Neal Legal Blame: How Jurors think and Talk About Accidents. American Psychological Association (APA), May 2001

Guinther, Jon. The Jury in America. New York: Facts on File, 1988

Gobert, James J. The Jury on Trial: A Political, Philosophical, and Psychological Examination of the Jury. 1993.

Hans, Valerie P. and Vidmar, Neil. Judging the Jury. Bew York: Plenum Pess, 1986

Jonakait N. Randolph The American Jury Sytem. Yale University Press, December 2006

Lehman, Godfrey D. We the Jury: The Impact of Jurors on Our Basic Freedoms: Great Jury Trials of History. Amherst, N.Y.: Prometheus Books, 1997

Levine, James. Juries and Politics. Pacific Groves, Cal: Brooks/Cole, 1992

Litan, Robert E. (Ed.). Verdict: Assessing the Civil Jury System. Washington, D.C.: Brookings Institution, 1993.

Marder Nancy Marder, The Jury Process Foundation Press, 2005

Moore E. Lloyd The Jury Tool of Kings, Palladium of Liberty 1988.

Simon, Rita James. The Jury & the Defense of Insanity. Somerset, N.J.: Transaction Publishers, 1999.

[1] The Federalist, No. 83, Alexander Hamilton ( Washington, D.C.: National Home Library Foundation, 1937), pp. 542-43.

[2] American Jury System ( Washington, D.C.: Roscoe Pound Foundation, 1977), p. 97, quoting Judge Albert Stiftel of Delaware.

[3]  U. S. Department of Justice, Sourcebook of Criminal Justice Statistics ( Washington, D.C.: Author, 1988), 539, tbls. 5, 12.

[4] Sir Frederick Pollock and Frederic Maitland, The History of English Law, Vol. 2 ( Cambridge: Cambridge University Press, 1895), p. 173; Charles Rembar , Law of the Land ( New York: Simon and Shuster, 1980), p. 168

[5] Moore E. Lloyd The Jury Tool of Kings, Palladium of Liberty 1988.

[6] Marder Nancy Marder, The Jury Process Foundation Press, 2005

[7] Litan, Robert E. (Ed.). Verdict: Assessing the Civil Jury System. Washington, D.C.: Brookings Institution, 1993.

[8] Lehman, Godfrey D. We the Jury: The Impact of Jurors on Our Basic Freedoms: Great Jury Trials of History. Amherst, N.Y.: Prometheus Books, 1997

[9] Levine, James. Juries and Politics. Pacific Groves, Cal: Brooks/Cole, 1992

[10] S. Diamond, J. Casper and L. Ostergren, “Blindfolding the Jury,” Law and Contemporary Problems, 52( 4) (Autumn 1989), p. 247 at 255

[11] Jonakait N. Randolph The American Jury Sytem. Yale University Press, December 2006

[12] Hans, Valerie P. and Vidmar, Neil. Judging the Jury. Bew York: Plenum Pess, 1986

[13] Bates Stephen. The American Jury System. Chicago, IL: McCormick Tribune Foundation, 2000.

[14] Bloomstein J. Morris Verdict: The Jury System. Athens State University, Decatur High School, Gadsden State , Northeast Ala , Sheffield

[15] DiPerna Paula Juries on Trial; Faces of American Justice, New York: Dembner Books, 1984.

[16] DiPerna Paula Juries on Trial; Faces of American Justice, New York: Dembner Books, 1984.

[17] Feigenson Neal Legal Blame: How Jurors think and Talk About Accidents. American Psychological Association (APA), May 2001