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Philosophy and Law Index The following appeared in Volume 96, Number 2 (Spring 1997) of the APA Newsletters.
FROM THE GUEST EDITOR
LEGAL ETHICS AND THE AMERICAN JURY SYSTEM
Jeffrey Abramson
Department of Politics
Brandeis University
Introduction
Few university courses on philosophy of law or political philosophy make a study of the jury. Indeed, it is far more common to find the jury studied in experimental or social psychology courses, where mock juries replace real ones. One reason for the philosophical neglect of juries is that jurors are rarely (never in criminal cases) required to articulate publicly the grounds or reasons for their decisions. The absence of any jury equivalent to written judicial opinions makes it difficult to study jury deliberations as embodiments of rational argument.
Yet, surely the jury embodies and lives out some political theory, some understanding or vision of popular or democratic justice.1 As an expression of democratic ideals, the jury is forever controversial. (Why should we believe that ordinary persons are capable of justice?) Our system is also, increasingly, a minority trial procedure even among democratic nations. (England has all but abolished the civil jury over the last two decades.) Moreover, juries practice democracy in peculiar ways: we lack institutional mechanisms to hold jurors accountable for their verdicts. This lack of accountability is especially dramatic when jurors decide to acquit a criminal defendant, since appellate courts are powerless to reverse even those not guilty verdicts rooted in mistaken understanding of the law or even outright disregard of the law ( a practice known as "jury nullification"). Another peculiarity is the unanimous verdict required in criminal felony trials (except in Oregon and Louisiana, with California currently debating whether to abandon the unanimity requirement). History is silent as to why unanimity attached to criminal jury trials while other democratic institutions made due with majority or supermajority decision rules.
Recent trials too famous to be recounted have brought to the fore many of the philosophical perplexities about the jury system. A review of recent literature2 shows ongoing debate about the following key issues.
1. What do we mean by trial before an "impartial jury"? Interestingly, the Sixth Amendment to the U.S. Constitution nowhere speaks of a right to a trial by one's peers but it does guarantee trial by an impartial jury. Common law defined an impartial juror as genuinely capable of bracketing his [women being disqualified] own interests and preconceptions and of deciding the case solely upon evidence produced in open court. As the great common-law jurist Lord Coke put it, "he that is of a jury, must be liber homo, that is, not only a freeman and not bond, but also one that hath such freedome of mind as he stands indifferent as he stands unsworne." This is a demanding notion of impartiality, requiring jurors to be independent not only from the dictates of others but also from their own opinions and biases. It requires jurors to achieve "a mental attitude of appropriate indifference," according to a 1936 federal case.
However, when Congress legislated the 1968 requirement that jurors be selected from a fair cross-section of the community,3 the new law implicitly rejected the common-law view of impartial jurors. The modern view is that no one juror is capable of putting preconceptions aside; all of us inevitably bring to jury service the diverse perspectives and interests of our race, religion, gender, and ethnic background.4 Deliberations become impartial, therefore, when group differences are embraced, rather than eliminated-invited in, fully represented. To eliminate potential jurors on the grounds that they will bring the biases of their group into the jury room is, we are sometimes told, to misunderstand the democratic task of the jury, which is nothing else but to represent accurately the diversity of views held in a heterogeneous society such as the United States.5
2. But how far we shall push this connection between "representative juries" and "impartial juries?" Should we, for example, frankly embrace some notion of proportional representation and insist on racial and other sorts of quotas on the jury?6 After all, what good does it do an Hispanic defendant (for example) if we start with a jury list that fairly represents Hispanics but end up, at trial, with a jury that includes no Hispanics, thanks to the luck of the draw, no-shows, excuses for hardship, and challenges for cause?
On the other hand, what would we be saying about justice in the United States if we reserved jury seats on the basis of race, or national origin? Jury quotas arguably are admissions that justice can never aspire to be color-blind, ethnic-neutral in a society as diverse as ours. There are also all the practical difficulties involved in deciding which groups deserve representation in which cases and how to distribute twelve seats among the contestors for inclusion. But surely the largest question is why we should have any faith in jury justice at all if jurors are there only to "represent" the pre-existing preferences of their own kind?
3. How do we explain, let alone justify, the distinctive requirement in criminal trials that jurors render a unanimous verdict? The efficiency costs in terms of hung juries and retrials are potentially high, though how high is a matter of debate. In the 1960s, in their classic study, The American Jury, Harry Kalven, Jr. and Hans Zeisel estimated that only about 5% of all jury trials ended in a hung jury.7 No comparable study exists today, but the California District Attorneys Association estimates that jurors fail to reach unanimity in as many as 12 percent of California trials.
Even when jurors do reach a unanimous verdict, their agreement may reflect an undeclared compromise made so as to avoid deadlock. For instance, in a murder trial where one faction of the jury believes the defendant guilty of first-degree murder and another but smaller faction believes the defendant guilty only of manslaughter, the majority faction may very well offer to compromise on second-degree murder so as to avoid a hung jury.
Problems such as these have led some scholars to propose abolishing unanimous verdicts in favor of simple majority rule on juries.8 Employing social choice theory, Edward and Warren Schwartz conclude that simple majority decisionmaking makes the jury most directly representative of the median voter on the panel, by taking away power from the odd person out, the extreme point of view, the outlier.
4. The age-old practice of peremptory challenges represents another live area of jury debate.9 In addition to challenges for cause, lawyers in the United States have traditionally been given a set number of challenges they could exercise without explanation to eliminate even persons whom the judge certified as impartial. The rationales for peremptory challenges include arguments that parties should have a say in the composition of the jury to try their case; that all power to select a jury should not reside in a fallible judge; that peremptory challenges eliminate extreme partisans for one side or the other, thereby making unanimous verdicts more possible; and that lawyerly intuitions have their role in the quest for unbiased juries. In 1986, the U.S. Supreme Court modified the peremptory challenge system by prohibiting lawyers from striking jurors solely on account of their race.10 In 1994, the Court imposed a similar ban on gender-based peremptories.11 But this modified peremptory challenge system leaves a number of puzzles. Why are race- or sex-based peremptories unconstitutional while strikes based on a person's occupation, age, or handicapped status remain perfectly lawful? Moreover, why do we permit peremptories to be exercised on the basis of mere whim or prejudice, say a defense lawyers's hunch that thin people who do not smile much will favor the prosecution?
Even the ban on race and sex-based peremptories has proven difficult to enforce. One legacy of the Simpson trials no doubt is to convince even more practicing attorneys that, of course, race is a powerful clue to a juror's starting preconceptions in many cases. Lawyers therefore become more practiced than ever in explaining away a seeming racial pattern in their peremptory strikes by pointing out the perfectly neutral motives they have for wishing to eliminate a particular set of persons. In one recent case that went all the way to the Supreme Court, the prosecution used peremptories to eliminate two black men from the jury pool. When the judge asked the prosecutor whether he was impermissibly striking the two men on account of their race, the prosecutor denied any racial motive and said he was suspicious of one man's facial hair and the other's shoulder-length hair. The Supreme Court found this an adequate, race-neutral explanation, even while acknowledging that the prosecutor's suspicions may have been wholly arbitrary.12
5. Everyone agrees, with varying degrees of reluctance, that jurors have the raw power of nullification, meaning that jurors have the power to disregard the judge's instructions on the law and to enter a verdict of not guilty when they conclude justice is better served by such a conscientious refusal to apply the law. (Note that jurors do not have the power to nullify in order to convict a defendant. To the extent such nullification can be detected, appellate courts may overturn convictions against the law.)
The debate over jury nullification-part of larger debates about the philosophy of civil disobedience and discretionary decisionmaking-is whether jurors have the legal right (as well as raw power) to nullify. The majority view in the U.S. today is that jurors do not have the right to nullify, that they should be instructed to the contrary that they are bound by their oaths to apply the law, whether they agree with it or not.13 But many scholars point out the long and glorious tradition of nullifying jurors: those in London who acquitted William Penn of disturbing the peace by preaching Quaker doctrine on the streets; those in Boston who refused to enforce the Fugitive Slave Law against abolitionists who aided the escape of runaway slaves. Defenders of nullification argue that blind enforcement of the law is not the juror's highest obligation in all circumstances, that "verdicts according to conscience" need not threaten the rule of law with anarchy.
These remarks may suffice to show why study of the jury raises basic questions about the meaning and possibility of justice in a heterogeneous society and about the very ideal of "democratic justice". Scholarly attention by philosophers to the jury is long overdue.
In this newsletter, Michael Saks (University of Iowa Law School) pursues some of the above themes by debunking the commonly-held perception that jurors vote more on the basis of their demographics than on the evidence. He reviews the empirical literature suggesting that the evidence is far more determinative of jury verdicts than many arm-chair analysts assume. On the subject of peremptory challenges, Jeffrey Abramson argues that they undermine representativeness on juries while contributing only sporadically to increasing the impartiality of juries. He suggests abolishing the peremptory challenges but compensating for their loss by expanding opportunities during voir dire to probe potential jurors for actual biases.
Notes
1. Abramson, Jeffrey, We, the Jury: The Jury System and the Ideal of Democracy (New York: Basic Books, 1994).
2. Abramson, op. cit.; Adler, Stephen J., The Jury: Trial and Error in the American Courtroom (New York: Times Books, 1994); Constable, Marianne, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (1994); Kassin, Saul M. and Wrightsman, Lawrence S., The American Jury on Trial: Psychological Perspectives (New York: Hemispheres Publishing, 1988); Van Dyke, Jon, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels (Cambridge, Mass.: Ballinger Publishing, 1977); Hon. B. Michael Dann, "'Learning Lessons' and 'Speaking Rights': Creating Educated and Democratic Juries", Indiana Law Journal 68 (1993), 1229.
3. The Jury Selection and Service Act 28 U.S.C., secs. 1861-69.
4. Sheri Lynn Johnson, "Unconscious Racism and the Criminal Law", Cornell Law Review 73 (1988), 1016; Johnson, "Black Innocence and the White Jury", Michigan Law Review 83 (1985), 1611-1708.
5. Taylor v. Louisiana, 419 U.S. 522 (1975); People v. Wheeler, 583 P.2d. 748 (1978); Commonwealth v. Soares, 377 Mass. 461 (1979), cert. denied, Massachusetts v. Soares, 444 U.S. 881 (1979).
6. Albert W. Alschuler, "Racial Quotas and the Jury", Duke Law Journal 44 (1995), 704; Deborah A. Ramirez, "The Mixed Jury and the Ancient Custom of Trial by Jury De Medietate Linguae: A History and A Proposal for Change", Boston University Law Review 74 (1994), 777.
7. Kalven, Harry Jr. and Zeisel, Hans, The American Jury (Chicago: University of Chicago Press, 1970).
8. Edward P. and Warren F. Schwartz, "Decisionmaking by Juries Under Unanimity and Supermajority Voting Rules", Georgetown Law Journal 80 (1992), 775-807; "Simple Majority Rule for Criminal Jury Trials: The Verdict is Now In", (unpublished draft, January 22, 1996, on file with author).
9. Charles Ogletree, "Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges", American Criminal Law Review 31 (1994), 1099.
10. Batson v. Kentucky, 476 U.S. 79 (1986).
11. J.E.B. v. Alabama ex rel. T. B., 114 S.Ct. 1419 (1994).
12. Purkett v. Elem, 115 S.Ct. 1719 (1995).
13. California Jury Instructions, Criminal (CALJIC) (St. Paul, Minn.: West Publishing, 1989), no. 1.00; Manual of Modern Criminal Jury Instructions for the Ninth Circuit, nos. 1.01 and 3.01 (1992).