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
 
FREE EXCERPT
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”

To continue reading

FREE SIGN UP