Jurors and Juries

• Author: Nancy S. Marder
• Pages: 134-149

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

The jury plays several important roles in the American legal system. Parties often

turn to juries to resolve the hard cases, for which there are no clear answers, and

the jury is supposed to apply its common‐sense judgment to reach a verdict.

Ideally, the criminal jury serves as a bulwark, standing between the criminal

defendant and the powerful state. The civil jury performs a similar function. It

provides a safeguard to individuals even when they confront a powerful party,

such as a corporation, in the courtroom. In addition, the experience of jury duty

educates citizens not only about the legal system, but also about their responsibil-

ities in a democracy.

Although the jury has always been part of the American legal system, it is not

impervious to change. There are at least three significant trends that can be dis-

cerned over time. The first trend is an expansion of who can serve as a juror. Jurors

once consisted solely of white men of property, whereas today all qualified citizens

can serve regardless of race or gender (Alschuler and Deiss, 1994: 868). The second

trend is a revision as to what the role of juror entails. Jurors were once regarded as

passive vessels into which information could simply be “poured” during trial. Today

we understand that jurors need to be “active” learners, who have the proper tools to

understand the trial and to perform their job effectively (Dann 1993: 1229). Some of

the tools that help transform jurors from passive to active participants include tak-

ing notes, submitting written questions to witnesses, and understanding the jury

instructions (Marder 2010: 729).

The third trend is a decline in the number of jury trials in the United States

(Galanter 2004: 466). This trend is troubling, but needs to be placed in a global

Jurors and Juries

Nancy S. Marder

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Jurors and Juries 135

context. At the same time as the United States is experiencing a decline in the

number of jury trials, there is a burgeoning of jury systems worldwide

(Symposium 2011). The growth of the jury in democracies and newly emerging

democracies suggests that Alexis de Tocqueville’s observation still resonates

today. In 1835, he described the jury as “the most effective way of establishing

the people’s rule and the most efficient way of teaching them how to rule”

(Tocqueville 1969: 276).

Expanding Who Can Serve as a Juror

Not that long ago jury service in the United States was limited to white men of prop-

erty. Some states had statutes that identified men as the only eligible jurors; others

explicitly prohibited African‐American men from serving. These official barriers to

jury duty were based on gender and race. Although these official barriers no longer

exist, they form an important backdrop for understanding the challenges to making

today’s jury as inclusive as possible. Even when these official barriers were removed,

informal barriers took their place.

The aspiration for today’s jury is a jury drawn from a broad swath of the

community – a jury that “looks like America.” Yet, certain practices, such as

peremptory challenges, death penalty exclusions, and jury size, continue to keep

women and African‐American men from serving on juries in proportion to their

numbers in the community. Although jurors are drawn more broadly from the

community today than they once were, it has not been a smooth path.

Official barriers based on gender and race

The composition of the American jury has changed significantly in the past few

decades. For example, it was not that long ago that women were officially excluded

from jury duty in certain courts (McCammon 2012: 40–49). State courts varied as

to when they allowed women to serve as jurors. Women in the Western Territories

had the right to serve as jurors in the late nineteenth century, but the right was

short‐lived (ibid.: 38). Some states, such as Delaware, Indiana, Iowa, Kentucky,

and Ohio, allowed women to serve as jurors as soon as they secured the right to

vote with the passage of the Nineteenth Amendment to the US Constitution in

1920 (ibid.: 38, 41). However, in other states, the courts decided that women’s right

to serve as jurors required a state statute that explicitly gave them that right. Until

the passage of the Civil Rights Act of 1957, women could not serve as jurors in

federal court unless the federal court was in a state that permitted women to serve

in that state’s courts.

Even after the 1957 Act established an independent basis for women to serve as

jurors in federal court, and most states officially permitted women to serve, some

states, such as Florida and Louisiana, required “affirmative registration.”