Jury Ethics

Juror Conduct and Jury Dynamics

John Kleinig, James P. Levine, Jeffrey B. Abramson, B. Michael Dann, Shari Seidman Diamond, Norman J. Finkel, Paula Hannaford-Agor, Valerie P. Hans, Julie E. Howe, Nancy J. King

• Publisher: Routledge
• Year: 2015
• Print ISBN:
  9781594511493
• eBook ISBN:
  9781317257127
• Topic: Law
• Subtopic: Criminal Procedure
• Index: Law

Trial by jury is one of the most important aspects of the U.S. legal system. A reflective look at how juries actually function brings out a number of ethical questions surrounding juror conduct and jury dynamics: Do citizens have a duty to serve as jurors? Might they seek exemptions? Is it acceptable for jurors to engage in after-hours research? Might a juror legitimately seek to "nullify" the outcome to express disapproval of the law? Under what conditions might jurors make a valid choice to hold out against or capitulate to their fellow jurors? Is it acceptable to form alliances? After trial, are there problems with entering into publishing contracts? Unfortunately, questions such as these have received scant attention from scholars. This book revives attention to these and other issues of jury ethics by collecting new and insightful essays along with responses from leading scholars in the field of jury studies. Is it acceptable for jurors to engage in after-hours research? Might a juror legitimately seek to "nullify" the outcome to express disapproval of the law? After trial, are there problems with entering into publishing contracts? Unfortunately, questions such as these have received scant attention from scholars. This book revives attention to these and other issues of jury ethics by collecting new and insightful essays along with responses from leading scholars in the field of jury studies. Contributors: Jeffrey Abramson, B. Michael Dann, Shari Seidman Diamond, Norman J. Finkel, Paula Hannaford-Agor, Valerie P. Hans, Julie E. Howe, Nancy J. King, John Kleinig, James P. Levine, Candace McCoy, G. Thomas Munsterman, Maureen O'Connor, Steven Penrod, Alan W. Scheflin, Neil Vidmar

1

Introduction: Ethical Foundations of the American Criminal Jury

John Kleinig and James P. Levine

The jury invests each citizen with a kind of magistracy; it makes them all feel the duties which they are bound to discharge towards society and the part which they take in its government. By obliging men to turn their attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.¹

Jury trials have ancient roots; evidence of their existence is found in Egyptian, Greek, and Roman writings. But for the jury system as we now know it, the most instructive starting point is probably the Norman Conquest of England in 1066, which imported into English law a system of grand and petit juries initially developed in eighth-century France by Charlemagne. It was not until the thirteenth century, however, that determination of guilt became the jury’s primary role. In 1215 the Magna Carta provided for trials by peers, and, with the Fourth Lateran Council’s condemnation of trial by ordeal later that same year, trial by jury became a major tool for resolving the issue of criminal guilt.² Nevertheless, early jury trials relied heavily on the oath of jurors familiar with the defendant, and the practice of calling witnesses was not well established until a few centuries later. As the English Bill of Rights (1689) made clear, jury trials were sometimes circumvented and frequently corrupted, thus constituting an uncertain safeguard against overweening authority. Therefore, although the traditions of English law were formally observed in its American colonies, they provided inadequate protection against judicial and administrative tyranny. In these circumstances, it is not surprising that the writers of the Declaration of Independence (1776) accused George III of, inter alia, “depriving us in many cases of the benefits of Trial by Jury.”

In 1791, with the ratification of the Bill of Rights appended to the U.S. Constitution (1787), it was guaranteed that “in all criminal prosecutions, the accused shall enjoy the right to a … trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”³ Originally formulated for federal criminal trials, in 1968 this constitutional right was formally extended to all state criminal trials (though by then many state constitutions had already established such a right).⁴

The final wording of the Sixth Amendment was not decided without vigorous debate, and it incorporates elements that have remained in tension ever since. The requirement of an impartial jury is problematically linked with the requirement that the jury be drawn from the district in which the crime was committed. One can easily imagine how the latter requirement might jeopardize achievement of the former, because of local partiality with respect to either the victim or alleged perpetrator—a problem that has been subsequently aggravated by the media feeding frenzies that frequently accompany serious crimes. That of course was not intended. Early advocates of vicinage argued for the importance of a jury’s reflecting the competence of local knowledge, its shared understanding of the law, and the protection it provided against prosecutorial tyranny.⁵ But the balance has often been hard to maintain, and in high-profile cases, such as those that followed the bombing of the Oklahoma City federal building, the impartiality requirement has sometimes sustained an argument for transferring a trial to a distant venue. This latter option, however, has usually been pursued only when it has been determined prior to voir dire that the local atmosphere has been so tainted by publicity that selecting a jury capable of judging fairly would be impossible.⁶

The impartiality requirement is not itself controversial. Controversy has centered on what it requires so far as jury selection and decision making are concerned. And here the implicit presumption of competent local knowledge has been a sticking point. There is, of course, a possibility that the alleged perpetrator may not be from the place in which the crime is committed, thereby weakening the contextualizing presumption of vicinage. But a more serious concern is that local jurors will have been exposed to tainting opinions about the crime. Should an impartial juror therefore know nothing about the case? Even though it may not be easy to disentangle fact from opinion, should we presume that all local knowledge is tainted? Or should we assume that all jurors who have been exposed to opinions that tend to prejudge the case will be so uncritical as to be persuaded by them, or, even if they have formed some opinion as a result, that those opinions will not be open to revision on acquaintance with court testimony? If minimal exposure to opinion about the case is required, is there not a heightened probability that those selected won’t care too much about what is going on about them in contrast to those who take an active and intelligent interest in what goes on in their community? Although the presumption behind the requirement of relative ignorance is that what needs to be known about a case will be presented at trial, the danger will be that those who qualify will not be socially prepared to rise to the challenge that is put to them.⁷

More abstract than the problems posed by the local knowledge requirement is the suggestion that impartiality requires indifference on the part of the juror. Indifference is not necessarily synonymous with impartiality. Indifference has to do with caring, impartiality with preference. Someone who is indifferent may also be impartial in that he does not care which way a verdict goes. But uncaring indifference may also compromise impartial judgment by undermining its conditions. Jury determinations are not mechanical operations on a complex array of data, but judgments that embody not only intellectual but also certain moral virtues—integrity and a passionate concern for truth. Were this not so, the pretension that the law is an instrument of justice would be hollow.

I. FOUNDATIONS

Why have a jury trial? Is its advocacy anything more than the ideological residue of anti-colonial feeling, a symbolic rejection of monarchical concentrations of power? Are not judges better trained and able to make the determinations that jurors are sometimes asked to make? These are serious questions. Many liberal democratic theorists have argued against the value of jury trials.⁸ Most liberal democratic countries make significantly less—or no—use of jury trials, and even in the United States defendants may, except in capital cases, choose to waive their right to one.⁹ More challenging, over ninety percent of criminal cases in the United States are now resolved through some form of plea bargaining, and about half of the remainder are decided by means of a bench trial.¹⁰ It is unlikely that any argument for jury trials will be decisive and exclusive.

Nevertheless, even though the jury predates liberal democratic institutions, its contemporary expressions can be anchored in liberal democratic and republican theory, in the foundational rationale for the “American experiment.” The Declaration of Independence affirmed that the “unalienable Rights” to life, liberty, and the pursuit of happiness with which all humans have been endowed are secured through the operation of governmental authority that derives its “just powers from the consent of the governed.” In doing so, it reflected the social contract tradition that underscores most liberal democratic thinking.

In John Locke’s Second Treatise of Civil Government (1689), long considered the classic of social contract theory and a major resource for American political ideology, a state of nature—social life unregulated by civil government—is said to suffer from three crucial institutional deficiencies: legislative, judicial, and (to put into effect the determinations of the first two) executive.¹¹ In the unlikely event that people in a state of nature would be able to agree on the formal content of the law of nature (social morality), they would still disagree about how to interpret and apply it. It is a manifest fact of human experience (Locke writes) that those who need recourse to law are likely to exhibit bias in interpreting its provisions and, in cases in which their own interests are not involved, their commitment to its application is likely to be half-hearted. And so “a known and indifferent Judge, with Authority to determine all differences according to established Law” needs to be instituted.¹²

In Lockeian social contract theory, the purpose of government is limited to the protection of limited fundamental rights. Although that now generally strikes us as too limited an understanding of the functions of government, it nevertheless indicates, in a general way, that the appropriate role of government and its institutions is to secure certain kinds of justice (protection of rights; corrective justice; perhaps distributive justice). Governmental processes, including those of the courts, should seek to maximize the likelihood that appropriate justice is done. The rule of law, understood in part as the exclusion of arbitrariness from social life, plays a key role in securing that justice.

At first blush, this does not appear to offer much space for a jury, and may even be taken to exclude it. Unlike a jury, the “known and indifferent Judge”—presumably skilled in matters of law and in asking the right questions of fact,¹³ and without a stake in the outcome—possesses the requisite knowledge and impartiality that judicial judgment requires. Ensuring equal protection of the laws is a central judicial function. Not only is the law a complex social tool but the understanding of fact patterns is also a sophisticated task.¹⁴ Not only an open court but consistency of judgment appear to be demanded.

However, pressing the idea a bit harder, juries might be considered as good an expression of Lockeian ideals, if not better, than judges ruling on their own. Underlying Lockeian social contract theory is the idea that each person has a right to determine the conditions under which his or her life is to be lived, subject, of course, to others being enabled to make similar determinations with respect to their own lives. Civil society is a strategic (and morally sensitive) attempt to implement that foundational understanding. One might argue that this consensual strategy anticipates each person’s input into an understanding of the various conditions necessary for an orderly social life—the formation, application, and enforcement of social rules. Taken literally, such an expectation would be too strenuous and difficult to manage. And so, instead of a fully participatory political and legal order, we settle for a representative one in which we choose those who will act on our behalf. Because the resulting system is imperfect, however, we institute further measures to minimize or counteract its imperfections. Jury trials can be construed as one of those measures. Instead of having a single detached judge determining how a particular law is to be interpreted and applied in a particular place and set of circumstances, we use a form of decision making that places important determinations back into the hands of the people who are the ultimate agents of the conditions of their social life. The point of having a plurality of jurors is that through their deliberative engagement with each other they will come to a decision that better expresses the will of those whose system it ultimately is. Such a plurality is more likely to judge correctly the facts of the case at hand than would have been the case had the decision been left entirely in the hands of judges.¹⁵ Even if the decisions are no better than those of judges, it may be, as Tocqueville observed, good for the vitality of a liberal democratic community if its members play such a role: civic education as well as republican virtue are fostered through jury participation.

II. COMPOSITION

The theory behind the jury trial has significant implications for issues of jury eligibility and jury selection. Should some people be excluded from jury service altogether? The history of exclusionary policies is mixed and instructive.¹⁶ In the United States, early juries consisted exclusively of white male owners of property. African Americans began to be added to juries in some states from about 1860 and women from 1898,¹⁷ although as recently as the 1960s African Americans were routinely excluded from Southern jury pools by administrative fiat. Even then discrimination was often perpetuated through the use of blue-ribbon juries and jury lists that excluded daily wage earners or were disproportionately skewed to favor white males. Until recently, eligibility lists were also restricted in other ways—for example, they did not include those who were not registered voters, thus disproportionately omitting the young, Hispanics, Native Americans, and those of low socioeconomic status.¹⁸ Some people are still ineligible for jury service: those who are under a certain age, illiterate, mentally or physically incapacitated; those who fail to meet residency or citizenship requirements; and those deemed to lack good moral character by virtue of their felony status.¹⁹ The legitimacy of some of these exclusions and how they are to be interpreted is a matter of ongoing debate.

Even if the issue of eligibility is resolved, the underlying rationale of a jury trial can be subverted in other ways. The longstanding practice known as peremptory challenge, whereby potential jurors can be excluded for no articulated reason, has often been used to exclude jurors who are judged unfriendly to a particular outcome. The justifying claim is that those with interests at stake ought to have some say in determining those who make the judgment, and that leaving such decisions in the hands of a single, fallible judge does not sufficiently secure those interests. More likely, however, is their use to “stack the deck” with a jury that is partial to the prosecution or the defense. Although use of the peremptory challenge has b...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Prologue: Toward a Jurisprudence of Jury Ethics
• Acknowledgments
• 1 Introduction: Ethical Foundations of the American Criminal Jury
• 2 Ethical Reciprocity: The Obligations of Citizens and Courts to Promote Participation in Jury Service
• 3 Jurors’ Duties, Obligations, and Rights: The Ethical/Moral Roots of Discretion
• 4 The Constitutional and Ethical Implications of “Must-Find-the-Defendant-Guilty” Jury Instructions
• 5 Mercy and Morals: The Ethics of Nullification
• 6 Jury Deliberation: Fair and Foul
• 7 Ethics for the Ex-Juror: Guiding Former Jurors after the Trial
• 8 Jury Research Ethics and the Integrity of Jury Deliberations
• Index
• About the Contributors