Comparative Jury Procedures: What a Small Island Nation Teaches the United States About Jury Reform

• Author: Kenneth S. Klein
• Position: Professor of Law, California Western School of Law
• Pages: 447-480

Comparative Jury Procedures: What a Small Island

Nation Teaches the United States About Jury Reform

Kenneth S. Klein*

TABLE OF CONTENTS

Introduction.................................................................................................. 448

I. A Condensed History of Malta and a More Detailed

History of Maltese Jury Practice ................................................................. 452

A. Maltese Juries under the British .......................................................... 453

B. Juries in Post-British Malta .................................................................. 454

II. A Condensed History of American Jury Practice ....................................... 457

III. Contemporary Similarities and Differences Between Current

Maltese Jury Practice and Typical Jury Practice in the United

States ............................................................................................................ 458

IV. Malta Can Fill Gaps in the American Consideration of

Jury Reform ................................................................................................. 461

A. Jury Selection ....................................................................................... 461

B. Jury Interaction..................................................................................... 467

C. An Additional Contribution of Malta to the American

Discussion of Jury Reform: Non-Unanimous Verdicts ...................... 472

V. Defending the Approach of This Article .................................................... 477

Conclusion ................................................................................................... 480

Copyright 2015, by KENNETH S. KLEIN.

* Professor of Law, California Western School of Law. This Article could

not have been written without the help and guidance of my professional colleagues

in Malta—the Honorable Judge Michael Mallia ( Judge of the Criminal Court sitting

in Valetta, Malta, ret.), Magistrate Aaron Bugeja (former Senior Criminal

Prosecutor and now Criminal Magistrate), Dr. Ugo Mifsud Bonnici (the fifth

President of Malta), and Dr. Lorna Mifsud Cachia (Maltese t rial lawyer who wrote

her doctoral thesis on Maltese jury reform)—each of whom shared their time with

me and pointed me in the right direction to find documents integral to understanding

Maltese jury practice. This Article was funded by a research grant from California

Western School of Law, and benefitted from the suggestions generated by

workshopping this Article to the Faculty as a whole. Particular thanks goes to my

colleagues Professors Lisa Black, Greg Reilly, Jamie Cooper, and William Aceves,

each of whom was instrumental in making this work better. The thoughtfulness and

care of the editorial staff of the Louisiana Law Review measurably improved this

Article. Finall y, I thank my mother, Hanne K lein, who graciously endur es me when

as a quality check on my writing—including this Article—I force her to listen to me

read the entire text to her out loud.

448 LOUISIANA LAW REVIEW [Vol. 76

INTRODUCTION

The literature on the American jury1 too rarely considers the experience

of other countries. This Article describes how the now over 200-year debate

in the United States over the proper role and form of American jury practice

suffers from the usually unstated, but typically unquestioned, premise of

American exceptionalism,2 and suggests that American jury practice could

benefit from considering what other systems may have to offer.3

Scholars have paid much time and attention in recent years to jury

reform in the United States.4 Two prominent topics in this conversation,

both of which form the heart of this Article, have been (1) the

appropriateness of allowing jurors to ask written questions of witnesses or

otherwise become more informed decision makers,5 and (2) the proper

approach to jury selection.6 The discussion of these topics, however, has

1. There are other jury systems in the Americas. This Article uses the

terminology of “the American jury” as a reference specifically to juries in the

United States of America.

2. See generally Oscar G. Chase, American “Exceptionalism” and

Comparative Procedure, 50 AM. J. COMP. L. 277 (2002) (discussing the cultural

origins of American civil procedure).

3. See generally Valerie P. Hans, Jury Systems Around the World, 4 ANN.

REV. L. & SOC. SCI. 275, 277 (2008) (“Comparative work on world jury systems

and other lay participation systems, although still at an early stage, holds

significant promise. Such research can address longstanding questions about the

impact of lay legal participation on democracy, legal consciousness, and the

unique perspectives and contributions that lay citizens bring to legal decision

making. As a scientific matter, many of these questions are difficult to answer

when one is limited to studying an existing jury system with long-settled trial

practices and stable public and elite attitudes toward jury trial. The cross-country

comparisons allow us to take advantage of existing variation in different

countries, akin to a natural experiment . . . .” (citation omitted)).

4. See, e.g., GREGORY E. MIZE, PAULA HANNAFORD-AGOR & NICOLE L.

WATERS, THE STATE-OF-THE-STATES SURVEY OF JURY IMPROVEMENT EFFORTS: A

COMPENDIUM REPORT (2007), available at http://www.ncsc-jurystudies.org/~/media

/Microsites/Files/CJ S/SOS/SOSCompendiumFinal.ashx.

5. See, e.g., Shari Seidman Diamond et al., Juror Discussions During Civil

Trials: Studying an Arizona Innovation, 45 ARIZ. L. REV. 1 (2003) [hereinafter

Juror Discussions During Civil Tria ls] (reporting on and evaluating the Arizona

experiment with juror questions and allowing jurors to discuss the case pre-

deliberation); Larry Heuer & Steven Penrod, Increasing Juror Participation in

Trials Through Note Taking and Question Asking, 79 JUDICATURE 256 (1996)

[hereinafter Increasing Juror Participation] (advocating for allowing jurors to ask

questions); Kara Lundy, Note, Juror Questioning of Witnesses: Questioning the

United States Criminal Justice System, 85 MINN. L. REV. 2007 (2001) (advocating

against allowing juror questions in criminal trials).

6. See, e.g., Roger Allan Ford, Modeling the Effects of Peremptory

Challenges on Jury Selection and Jury Verdicts, 17 GEO. MASON L. REV. 377

(2010); Reid Hastie, Is Attorney-Conducted Voir Dire an Effective Procedure for

the Selection of Impartial Juries, 40 AM. U. L. REV. 703 (1991); Hilary Weddell,

2015] COMPARATIVE JURY PROCEDURES 449

primarily taken place on a theoretical plane. The only concrete data comes

from the limited instances where judges have allowed experimentation in

their courtrooms. This experimentation, unfortunately, has been infrequent

and narrow in scope. Regarding jury selection, for example, although

practice varies in America about whether judges, advocates, or both

question the jury7 and for how long,8 all courts allow jury questioning—

referred to as voir dire—on average for two hours.9 During trial, however,

no American courts allow jurors to directly question witnesses orally, and

only 14% of state criminal trials allow juror-written questions to

witnesses.10 Less than 1% of state courts allow jurors to discuss the

evidence before deliberations commence in criminal trials.11 Ultimately,

the United States has limited data to evaluate the effectiveness of jury

questioning, no examples of trials with active oral questioning by jurors,

and very limited data on jury deliberation during trial.

Although such information is lacking in America, other countries have

conducted these evaluations of their jury systems.12 Some of these systems

are British-based, meaning they have an adversarial system, common law

rules of evidence, and a law/fact division of responsibilities between judge

and jury.13 Within the British-derived systems, American jury reformists

should be particularly interested in systems of roughly the same vintage as

the United States. The British system itself has evolved and changed over

many centuries.14 Each British-derived system is born out of the version of

British justice as it existed at the pertinent moment. Although comparative

law cannot control for all differences between nations,15 nations are of the

Note, A Jury of Whose Peers?: Eliminating Racial Discrimination in Jury

Selection Procedures, 33 B.C. J. LAW & SOC. JUST. 453 (2013).

7. MIZE ET AL., supra note 4, at 27–28.

8. See id. at 77–78.

9. See id.

10. See id. at 32 tbl.24, 34–35.

11. See id. at 32 tbl.24.

12. See Hans, supra note 3, at 276. For a summary of jury systems in place

in Europe see John D. Jackson & Nikolay P. Kovalev, Lay Adjudication an d

Human Rights in Europe, 13 COLUM. J. EUR. L. 83, 93–100 (2007).

13. See generally Hans, supra note 3, at 278–79 (“Juries are usually

embedded within an adversarial common law system in which oral testimony by

witnesses is the predominant method of evidence presentation, a sharp contrast

with the civil law tradition of document-based litigation. The adversarial approach

favors passive decision makers, whereas the inquisitorial approach promotes the

active involvement of decision makers in the development of evidence.” (citations

omitted)); accord Jackson & Kovalev, supra note 12, at 95–96.

14. For a detailed history of the British jury system, see Douglas G. Smith,

The Historical and Constitutional Contexts of Jury Reform, 25 HOFSTRA L. REV.

377, 390–420 (1996).

15. Some of the Author’s colleagues are concerned with the contemporary

use of the word “nation,” noting that we can no longer equate “nation” with “state”