Jury reform in America - a return to the old country.

• Author: Sullivan, Eugene R.
• Position: United Kingdom - Panel Discussion

INTRODUCTION

The time to reform the American jury system is now. The nation is ready for change. The present system is being judged inadequate by the bench, the bar, the press, and the public. In this article, we will advance six suggested reforms to the present American jury system. These reforms have all been tried and have been accepted as valuable aids to the English justice system.

This article has a somewhat unusual format. The first section of the article is a presentation of the six jury reforms by the authors. The second section is a transcript of an actual debate on these reforms between leading members of the bench and bar of America and England before an unbiased public audience who voted on the debated topics. Thus this article will either have its suggested reforms validated or have its reforms rejected by the outcome of the debate. The transcript of the debate is followed by a brief epilogue describing the impact of the debate.

The six reforms have been grouped into three general areas in order to ease the transition into the debate format as well as to summarize the three main areas of the American jury system that the reforms will strengthen. These reforms, if adopted by America, will:

1. give the jury more power by a more reasonable voting method (Reform 1);

2. give the jury more information in its search for truth in the trial process (Reforms 2, 3, and 4); and

3. create a more efficient jury system (Reforms 5 and 6).

REFORM 1: EMPOWER THE JURY BY CHANGING THE JULY VERDICT TO A TEN-TO-TWO VOTE.

The requirement of unanimous jury verdicts has been widespread in America's state and federal jury system since the eighteenth century.(1) The unanimous jury verdict may have been necessary to ensure a fair trial for a defendant in those times when a defendant had few rights. But in modern times, a defendant enjoys many trial safeguards which ensure that a fair trial is given to all defendants. Now is the time to rethink whether a unanimous verdict is necessary for America's modern trial process. The Supreme Court has ruled that the Sixth Amendment's guarantee of a jury trial does not require a unanimous jury verdict.(2)

In England, the criminal code was changed in 1967 to allow a ten-to-two verdict after the jury has deliberated at least two hours.(3) The English experiment in this area has proved successful.

Since the ten-to-two jury verdict is not outlawed by the Constitution and is not necessary to protect a defendant's right to a fair trial, why not move to it in America? The United States Senate has recently introduced a bill which would change the Federal Rules of Criminal and Civil Procedures to allow the ten-to-two jury vote in criminal trials in federal courts.(4)

Adoption of the ten-to-two (super-majority) jury vote would strengthen the power of the jury by eliminating the occurrences of hung juries as well as reducing the danger of a single juror corrupting the jury process. It is not reasonable that one or two jurors should thwart the will of a strong super-majority of the serving jurors. Note finally, ten-to-two verdicts would protect some defendants who are unprotected by unanimity rules. If the jury votes ten-to-two in the defendant's favor, this vote would count as an acquittal instead of a mistrial and thus, under the double jeopardy protection rules, would her the prosecutor from retrying the case.

REFORM 2: ALLOW THE JURY TO ASK QUESTIONS DURING THE TRIAL.

REFORM 3: ALLOW THE JURY TO DISCUSS THE EVIDENCE AMONG THEMSELVES DURING THE TRIAL.

REFORM 4: REQUIRE THE JUDGE TO SUMMARIZE THE LAW AND FACTS FOR THE JURY DURING HIS INSTRUCTIONS.

These reforms would give the jury more information so the jury can better find out the truth. A complex trial can he confusing to the jury. It is common sense to allow the jury to ask questions of witnesses as the trial progresses. Having the opportunity to clarify a disputed point of fact while the witness is still on the stand will allow the jury to function on a more informed basis. It is surprising that a jury has no opportunity to ask questions during a trial in most American state and federal courts.(5) In England, a juror can give the judge a written question for a witness. The judge, in his or her discretion and after conferring with counsel to hear arguments on the merits of asking the question, will be allowed to ask the question for the juror. By this process, the rights of both parties would be protected because both parties have the right to view the suggested question and argue the appropriateness of the question before the question is asked of the witness by the judge. England has experienced no major problems using this process.

Allowing the jury to discuss the case during the trial is a simple, easy, and obvious reform to the current widespread practice in American courts where the judge instructs jury members not to discuss the case among themselves until all the evidence is in and the jury instructions are given.(6) It makes sense to go to the English practice of allowing jury discussions of the evidence as the case progresses. The present system in America of prohibiting such discussions is widely disregarded and misunderstood. The jury should be allowed to discuss the witnesses and evidence among themselves as the trial progresses. The need and practical consequences of this are self-evident and more apparent in a long trial of several weeks.

Requiring the judge to summarize the facts and the law will make the judge's instruction to the jury more informative and meaningful. Presently in America, as a general rule, judges read a "boilerplate" version of the law (i.e., legal definition of reasonable doubt) in their jury instructions. Studies have shown that jurors normally misunderstand or have a poor understanding of the judge's instructions.(7) One reason is that judges tend to instruct American juries in abstract legal terms.

One need only visit the Central Criminal Court (Old Bailey) of London to see that the judge provides English juries an exhaustive but concise review of the facts in evidence before the judge explains the law that the jury should apply to the case. A benefit of this process is that each English jury is allowed a view of the law and facts through the experienced eye of the judge. A difficulty of this process is the danger that the judge will allow his or her bias to creep into the fact and law summary and lead to a tainted jury, a jury that is a captive tool of a biased judge.(8) This danger is slight but needs careful watching by the appellate courts in England.

Reform four would adopt this English practice and require a judge to review the facts in evidence and help the jury apply the law to the facts of the case. England has found that giving this skilled guidance helps the jury arrive at a more informed verdict. America should try this aid to the jury.

REFORM 5: SHORTEN THE IN-COURTROOM VOIR DIRE.

REFORM 6: ABOLISH PEREMPTORY CHALLENGES.

These two reforms would work together to change the force of America's jury back to what it was supposed to be--a random cross-section of the community with people eliminated only for bias. Selecting a jury in America has become a very complicated process and has even given birth to a new profession--jury consulting. The present American method of selecting a jury has put an increased time burden on the judicial system with an accompanying decrease in the public confidence of the accuracy of jury verdicts. The removal of jurors for cause and for peremptory challenges has become a game for trial attorneys--a serious game where the desired outcome, instead of the truth, is the goal.(9)

In England, as a practical matter, the voir dire in a typical case generally occurs before the jury panel enters the courtroom. England passed a law(10) which states those who are ineligible to serve on a jury (i.e., judges, clergy, and those in the administration of justice, such as policemen, probation officers, etc.). These people are ineligible because of the undue influence they may have on a jury because of their profession. According to the Jury Act of 1974, other persons are disqualified to sit because of a bias against the system of justice (i.e., anyone who has served a sentence of three months or more in a prison during the last ten years). Others can be excused by right (i.e., members of Parliament, doctors and dentists, and members of the armed forces) or for cause (i.e., special hardship, or sole custody of small children).(11) The Jury Act puts the burden on the individual called for jury duty to state (under the threat of criminal sanctions) whether he or she is ineligible or disqualified to serve. The attorneys for the defense and prosecution are given a limited opportunity to voir dire before the jury is selected to sit on a case. With no peremptory challenges and streamlined jury selection process, each defendant in an English trial quickly faces a uniform cross-section of the community as his jury.

Such a system can be adopted in America. If adopted, the attorneys would no longer take up valuable court time to whittle away at a jury panel until they have chosen a panel they feel would be most suited to arrive at a desired outcome. Under the English system of jury selection--a process of uniformly excluding bias and no peremptory challenges--the pub,sic would have an increased confidence in jury verdicts.

As a final note, these reforms are neutral and are not structured in favor of the prosecution's side or the defendant's side in a jury trial. They are pro-verdict, pro-information, pro-efficiency, projury, and, most important, pro-people. The American people enjoy one of the finest legal systems in the world. These reforms will only make the system better.

GREAT DEBATE ON JURY REFORM ENGLAND v. UNITED STATES

INTRODUCTORY REMARKS

JUDGE EUGENE R. SULLIVAN: Welcome ladies and gentlemen to the Great Debate on Jury Reform. For the televised audience, we are here...