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 trial 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. Finally, I thank my mother, Hanne Klein, who graciously endures 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 jury 1 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/CJS/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 Trials ] (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 jury 7 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 and 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” 450 LOUISIANA LAW REVIEW [Vol. 76 greatest utility when they are most similar. 16 These nations can serve as useful illustrations of the possible outcomes of American jury reforms. 17 Within the British-derived court systems, one nation of very similar vintage to the United States is Malta, a member of the European Union and Commonwealth of Nations. 18 Malta is a small...