The Jury’s Dilemma: Playing God in the Search for Justice

Solving the Problems Lurking in America’s Courtrooms

Lives are lost and won in the courts, lost and won in the law – everyday, everywhere . . . But in the jury room, the thought cannot be avoided, since there you learn that justice doesn’t merely happen (neatly, reliably, like a crystal taking shape in a distant vacuum); justice is, rather, done, made, manufactured. Made by imperfect, wrangling, venal and virtuous human beings, using whatever means are at their disposal.

THE Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”2 In fulfilling this precious right, nearly one million Americans serve as jurors in more than 80,000 jury trials in the country every year.3 In 2004, the American Bar Association (“ABA”) decided that it was time to “begin paying closer attention to ways we can support the juror so that each empanelled group will be a true representation of the community, have the tools and processes necessary to receive evidence, deliberate constructively, and deliver a just verdict confidently.”4 As a result, the ABA President at that time, Robert Grey Jr., launched the American Jury Initiative to “strengthen the jury as a democratic institution and enhance Americans’ understanding of its role in our system of law and government.”5

As part of this initiative, President Grey formed The American Jury Project and the Commission on the American Jury. The American Jury Project, has recently completed drafting a set of nineteen principles for juries and jury trials that range from the obvious – preserving the right to jury trial – to the more charged – the trial court’s prompt undertaking of inquiries into allegations of juror misconduct.6 The preamble emphasizes dual goals: the preservation of the jury trial and the enhancement of juror participation. In effect, the driving force behind the reworking of the jury system is the need to effectuate practical changes to its functioning and management. As Supreme Court Justice Sandra Day O’Connor stated, “[o]ur nation relies on the determinations of juries of our peers in both civil and criminal trials . . . because you are the ones capable of deciding who is to be believed and what the facts are.”7

The twenty-three-member committee of the American Jury Project has been true to its mission by proposing common sense solutions to some of the jury system’s most persistent problems.8 Three of the biggest problems in serving as a juror include: jurors’ expenditure of time and money, under-representation of a broad section of society in the jury pool, and a lack of understanding of the facts and the law by empanelled jurors. The Project has addressed these issues in simple terms. For example, the “time required of persons called for jury service should be the shortest period consistent with the needs of justice” and “persons called for jury service should receive a reasonable fee.”9 To counter the critique that juries contain the proper smattering of the educated and uneducated, the employed and unemployed, men and women, thus excluding the rich, educated, and professionally employed, the American Jury Project committee has proposed that, “[c]ourts should collect and analyze information regarding the performance of the jury system on a regular basis in order to ensure the representativeness and inclusiveness of the jury source list.”10 Moreover, “[a]ll automatic excuses or exemptions from jury service should be eliminated.”11 Finally, to resist jury ignorance, the committee proposed that, jurors should be allowed to take notes during trial, and they should be provided with identical trial notebooks which may include such items as the court’s preliminary instructions, selected exhibits which have been ruled admissible, stipulations of the parties, and other relevant materials not subject to genuine dispute. …