IMPROVING THE JURY
Afew weeks ago the editor of Inside Chico State called to inquire if I would write an essay explaining some comments I had made that were quoted in the New York Times. There had been a series of mishaps in New York jury trials that led the reporter to ask if it might be better to have judges decide cases without juries at all. I replied, paraphrasing Winston Churchill’s response to a similar question about the efficacy of democracies, that democracy is the worst possible form of government—except for all the others. I said the same about juries.
When I was a young lad in law school 55 years ago, it was fashionable to make fun of juries. Indeed, that may still be true: “compounding the ignorance,” “a group of 12 people not smart enough to get out of jury duty,” and other less polite characterizations. When I went to graduate school over a decade later, my first major research project dealt with jurors in capital cases, and I had occasion to read the classic work by Hans Zeisel and Henry Kalven, The American Jury. It was a masterful empirical study that simply asked judges around the country to look at their last jury trial and reveal what the jury verdict was, what they would have decided without a jury, and their explanation for any difference.
The answers provided great vindication for the jury, since overwhelmingly the judge and jury agreed. Moreover, the judges explained the differences by saying the juries’ decisions were better because judges are too often constrained by legal rules that did not allow consideration of individual cases and simple fairness, but juries could bring their sense of justice into the deliberations.
While the jury embodies core democratic values, in practice it is flawed in many ways. I will note just one the warts.
Juries are at their best when they represent a broad cross-section of the community, what the courts call “diffused impartiality,” where the biases of the members are balanced against each other. But if the jury is overwhelmingly white, or older folks, or pro-death penalty, or otherwise dominated by any disproportional percentage of any group, the biases will not be balanced.
To deal with only that problem, we should strive to expand the group who serves. Yet in federal court in North Dakota, only those who voted in the last presidential election may serve; in many jurisdictions only those who are registered to vote are called for jury duty, yet such individuals are disproportionally likely to be older, non-minority, higher income, etc. After that hurdle is overcome, those left in the members of the underincluded group often do not serve because of the economic cost, or they lack transportation or day care, or because of the historic misuse of the peremptory challenge by prosecutors who are reluctant to have minority defendants judged by minority jurors.
California juror pay is a pathetic $15 per day, starting on the second day. With that payment and luck, they could cover transportation, parking, and lunch. We could increase that pay, expand the source lists to utility payers, driver’s licenses (California does use those), and other lists; reduce exemptions for special groups like doctors and lawyers (California does that), enforce jury summonses, provide day care, do more education about the importance of jury duty, and much else.
That problem of a fair cross section is only one wart in the best justice system, one in which we should take pride, but about which we must not be satisfied..
—Ed Bronson, professor emeritus, Political Science, and jury selection expert