We, the jury: the IADC-backed National Jury Trial Innovations Project.

• Author: Horowitz, Mark R.
• Position: International Assn. of Defense Counsel

Most Americans have limited knowledge of the jury system in the United States. When they see a mention of the jury or jury trials, more likely than not the impression is not a favorable one. They read about one group of jurors finding O.J. Simpson not guilty of murder and another jury finding him guilty of the same crime--never mind the differences between criminal and civil proceedings and varying evidentiary rules of admissibility.

They receive a jury service summons and groan at the thought of being yanked from their daily lives to sit in a sterile environment of walls and tables, wasting time while the odds suggest they will not be selected. Should they hit the jackpot and serve on a jury, they don't view it as a win at all, but a burden of lost time and possibly lost income, while opposing lawyers seek to put on winning performances. Those who have served may feel a sense of accomplishment, but all too often it is an arduous, unfriendly system in which they have participated, with seemingly no hope of improvement in sight.

A brief look back

Because jury trials are becoming less ubiquitous, Americans have almost no background and little exposure regarding their importance to the justice system. Nor do they have an appreciation of how the jury system evolved to become a cornerstone of what is deemed the pursuit of justice in America. Because the American system of law is based largely on English common law, there are seemingly few indigenous roots to uncover.

Ironically, when the phrase "jury of our peers" surfaces in conversation or print, it has much more meaning for the past than the present. It was in medieval times that local juries in the various shires of England were assembled from villagers familiar with the defendant, the plaintiff and the alleged offense--situations anathema to the American jury system. Those "peers" also brought to the trial their own beliefs, prejudices and understanding of the lives of those on trial. Again, this is quite the opposite of the proverbial "blank mind" the American juror is supposed to bring to a trial, free of prejudice or knowledge of the case or the people involved.

It might be shocking for a present-day juror, let alone a judge or lawyer, to consider that in medieval England jurors were expected to investigate the facts, talk to the parties involved and discuss the issues at hand before the case.

The American jury developed from this model, dropping or picking up baggage along the way. Jurors slowly became judges of facts, rather than witnesses of facts. Eventually, the jury developed into a more passive panel, with no involvement in the trial proceedings. As judges, they were supposed to listen, Solomon-like, to all arguments and weigh all evidence before arriving at a just decision, with no active participation. This meant taking on a role they would never assume in "real life"--an unquestioning, unimpressionable, non-argumentative, silent individual making a decision normally requiring numerous questions, varying and changing impressions, constant arguing and disputing and...