Juror delinquency in criminal trials in America, 1796-1996.

• Author: King, Nancy J.

This article examines two aspects of the jury system that have attracted far less attention from scholars than from the popular press: avoidance of jury duty by some citizens, and misconduct while serving by others. Contemporary reports of juror shortages and jury dodging portray a system in crisis.(1) Coverage of recent high-profile cases suggests that misconduct by jurors who do serve is common. In the trial of Damian Williams and Henry Watson for the beating of Reginald Denny, a juror was kicked off for failing to deliberate;(2) Exxon, Charles Keating, and the man accused of murdering Michael Jordan's father all complained of juror misconduct;(3) and, of course, several jurors in the trial of O.J. Simpson were replaced after allegations that they had lied, concealed intentions to profit from the case, or otherwise misbehaved.(4) In the past year, newspaper reports have described less well-known cases in which jurors refused to answer personal questions, stole jewels introduced as evidence, had sex with courthouse deputies, visited the crime scene, bit another juror's arm to examine tooth marks, read forbidden newspaper articles, got drunk, made racist comments, used drugs, and discussed the case before the end of the trial.(5)

The research reported here is an effort to place these defects in the jury system into perspective, to learn how widespread these problems are, whether they are new (or, if not, how they differ from similar problems in earlier years), and what courts have done and should do now about them. The article incorporates a historical overview of jury dodging and misconduct since 1796(6) and the results of an original survey completed in December, 1995, by 562 trial judges across the country. The survey is the first to collect empirical information about jury avoidance and misconduct nationwide.

The story of jury delinquency that unfolds holds useful insights for those who struggle to improve a jury system that today faces criticism from all sides. First, the rules that govern juror enlistment and oversight have been influenced over the decades by changing conceptions of the jury's function. Jurors have assumed many roles -- group representatives to a lawmaking body, democracy's students, symbols of fairness, accurate fact finders. Future attempts to regulate the behavior of those who are called for jury service must respond to the continuing shifts in sentiment regarding the jury's proper function. Second, both the avoidance of jury duty and the existence of juror misconduct are old problems that in earlier times seem to have caused even more trouble for courts than they do today. According to a majority of the judges in most of the cities surveyed, few cases today are plagued by misconduct and most people answer the call to jury duty. Over the years efforts to prevent culpable behavior rather than punish it have proved their value, a useful lesson for those hoping to improve further juror compliance in jurisdictions where jury avoidance or juror misconduct affect a significant portion of trials.

The first half of this article is devoted to a study of the avoidance of jury service and the law's response. After introducing theoretical and practical constraints on the administration of compulsory jury service in section I.A, I review in section I.B the experience of courts in recruiting jurors for the past two centuries. Section I.C describes the situation today using the responses of trial judges surveyed. The discussion of jury avoidance concludes in section I.D with a brief analysis of several proposed reforms. The second half of the article addresses misconduct by jurors once they have appeared for jury duty. Following an exposition of historical trends concerning misconduct in section II.A, section II.B reports the responses of judges surveyed about jury misconduct in their courts over the past three years. Section II.C concludes with some observations about the future regulation of juror misconduct.

1. Perfecting Jury Compliance in America: A Constant Struggle

   1. Why (Not) Force Jurors To Serve?

      Competing views of the role of the criminal jury have influenced the enforcement of compulsory jury service in America. Some consider the jury an educational institution that teaches jurors and trial observers lessons about democratic self-governance. For them, citizens who avoid service deprive themselves of important knowledge and undermine the political order.(7) For those who believe that jury service is a civic duty that every American owes to his community and his country, exemptions from service and other manifestations of lax enforcement appear pernicious.(8) For others, the jury is a special kind of law-making body, one that must fairly represent racial, ethnic, religious, gender, and other demographic groups in the community which it serves so that it may arrive at acceptable standards of reasonableness and accountability. Vigorous enforcement efforts would appeal to those holding this view of the jury especially if those efforts would help to alleviate the underrepresentation of minority groups on juries.(9) Finally, others may con sider these various roles unimportant compared to the mission of the criminal jury to determine, accurately, the facts of a case. This idea of jurors as fact finders, not lawmakers, has prompted adherents to look favorably upon measures that promise to increase compliance rates of prospective jurors with the most education and less favorably upon measures that would increase the compliance rates of those with less education. The concern for accuracy also may prompt some judges to routinely excuse reluctant veniremembers who grudgingly appear on the theory that an unwilling decisionmaker may choose an early exit over reasoned deliberation, may take out his resentments on one of the litigants, or may simply lack that sense of responsibility that accurate judgment requires.(10)

      In addition to recruitment philosophy, political and financial concerns have influenced judicial responses to jury avoiders. Courts that may prefer to accept whoever shows up have sometimes been forced into action when sinking juror yields drive the cost of procuring each juror to troubling levels or delay court business. On the other hand, courts that may prefer to coerce each and every eligible person into service have encountered their own set of barriers. One problem courts have yet to surmount is futility. Even if judges could drag every resisting citizen into a venire, peremptory challenges have left judges powerless to prevent litigants from excluding unwilling jurors during voir dire. Judges also lack the means to deter or prevent veniremembers from misrepresenting their beliefs on voir dire in order to escape service. Moreover, even if judges agree that simply getting reluctant jurors to come to the courthouse is worth the effort, the cost of processing contempt citations has steadily increased as dockets have mushroomed. The following brief exposition of the history of jury duty avoidance illustrates how concerns like these have influenced compulsory jury service during the past two centuries.

   2. Compelling Service on Juries: The Past 200 Years

      1. Filling the Box -- 1796-1870

         Early in the nineteenth century, jury avoidance was a continual nuisance for courts. Many of the reasons for avoiding jury service before the Civil War seem quaint or surprising to us now, made obsolete by the evolution of social and economic conditions and by specific improvements in the conditions of jury service. For example, finding a place to sleep while serving one's term as a juror typically poses no problem today -- one simply sleeps at home and travels daily to the courthouse. But in the early nineteenth century, when travel to the county seat often entailed a significant journey by horse, wagon, or even on foot, jury service meant finding and paying for lodgings for weeks while on duty. Other disincentives facing prospective jurors before the Civil War continue to deter prospective jurors today, such as the inconvenience of being kept from one's daily affairs and one's family for the duration of service.

         Just as some of the disincentives to serve in the early nineteenth century have disappeared today, so too has a popular method of coping with juror delinquency during the first half of the nineteenth century -- the use of bystanders or salesmen. The other response to jury dodging employed by courts of the period -- the fine -- survives, but may have been imposed more regularly in earlier years. Judges who served developing communities during the first half of the nineteenth century focused on the simple, yet at times extraordinarily difficult, task of securing enough jurors to complete the court's docket. They had yet to face the complexity of balancing this task with concerns about widespread corruption, racially discriminatory selection procedures, or overburdened criminal justice agencies.

         Working conditions for jurors were miserable in many places, even by standards of the time. Courtrooms were often crude, particularly in less populated communities." If there was a separate room available for deliberation,(12) it was sometimes sparsely furnished or lacking heat or ventilation, yet jurors were locked in together, even overnight, until they reached a verdict. Some judges deprived jurors of food during deliberations; for their jurors, holding out meant staying hungry.(13) By mid-century, however, most courts had abandoned the "ancient barbarity" of starving jurors into agreement.(14)

         During the court's term, overnight accommodations for jurors in the evenings when they were not actively hearing cases were often crowded or difficult to obtain, at least in rural areas.(15) When several judges and attorneys, eighteen or so grand jurors, two dozen petit jurors, as well as parties and witnesses descended upon a county seat, accommodations at the local taverns filled up fast. Some jurors...