The courage of our convictions.

AuthorClark, Sherman J.
PositionSocial norms underlying and social utility of criminal jury trials
  1. INTRODUCTION

    This article argues that criminal trial juries perform an important but inadequately appreciated social function. I suggest that jury trials serve as a means through which we as a community take responsibility for -- own up to -- inherently problematic judgments regarding the blameworthiness or culpability of our fellow citizens. This is distinct from saying that jury trials are a method of making judgments about culpability. They are that; but they are also a means through which we confront our own agency in those judgments. The jury is an institution through which we as individuals take a turn acknowledging and coming to terms with the difficult things we as a community find it necessary to do.

    I suggest that the jury's responsibility-taking role is important primarily because of what it may be understood to say about who we are as a community. My aim, therefore, is to examine one of the ways in which the criminal trial jury may function as an expression of community identity. I argue that the way in which we go about performing certain difficult societal tasks says something about what we stand for, what kind of people we are, and what sort of community we want to be. I suggest that the passing of judgment on our fellow citizens is just such a task. How we do it may be as important to us as what we do. In particular, we may want to face this difficult and defining task in a way that allows us to describe ourselves as a forthright and courageous community -- community willing to confront and acknowledge responsibility for its judgments.

    Conceptually, the argument operates at several levels of generality. Most broadly, I suggest that meaning does matter. I argue that the social meanings and expressive content of legal rules and practices ought to be understood as primary goods. Alongside consequentialist arguments keyed to concerns such as efficiency and deterrence -- and alongside normative arguments rooted in principles such as fairness, justice, and rights -- lawyers need to find ways of arguing about meaning. Because arguments about social meaning and expressive content are inevitably contextual and contingent, the subject lends itself less to abstract theorizing than to concrete illustration. Accordingly, although one of my claims is that lawyers ought to be more willing to argue about social meaning as a primary good in a wide range of contexts, the bulk of this article is addressed more specifically to the criminal trial jury. I hope to demonstrate that expressive content can be argued about coherently, and that the criminal trial jury is an institution well suited to this form of argument.

    More specifically still, I focus on just one of the myriad of potentially meaningful aspects of the criminal jury trial and on just one of the many potential meanings which might be ascribed to that aspect. The critical variable for purposes of this argument is the extent to which the procedures governing the criminal jury trial tend to engender in jurors a sense of personal responsibility for the fate of the accused. The meaning I attempt to ascribe to that variable is courage, or rather a particular quality of forthrightness and integrity for which courage is as good a label as any. I suggest that we might admire those individuals and communities who are willing to stand behind what they do. We might want to count ourselves among those who confront, rather than evade responsibility for, the difficult things which we as a society find it necessary to do. In particular, we might consider it cowardly and base to construct a system through which we could hold others responsible for their actions -- for that is what we do though the criminal justice system -- without any of us ever having to take responsibility for those assignments of responsibility.

    The structure of the argument is as follows: Part II describes and defends my approach. I argue that the meaning of a criminal trial jury may be as important as its consequences. I also defend the claim that the social meaning of legal institutions, such as the jury, is worth arguing about.(1)

    Part III briefly describes the jury's responsibility-taking role and attempts to flesh out my claim regarding its potential expressive significance. I defer until Parts IV and V a discussion of precisely how that role is manifested and how it is or might be enforced. Instead, Part III addresses the more fundamental, and more difficult, question of why it might be seen as important to express, through the device of jury responsibility, the form of courage I describe.

    Part IV argues that recognizing the jury's responsibility-taking function has explanatory power. Several otherwise puzzling facets of the procedural and evidentiary structure governing the criminal trial jury can be partially explained or illuminated by ascribing this function to the jury. Specifically, I point to four aspects of jury trial practice and procedure: the uncertain status of jury nullification, persistent concerns that certain forms of evidence will "usurp the role of the jury," the doctrine of Caldwell v. Mississippi,(2) and the invocation of "conscience" in prosecutorial argument. Each of these contentious areas makes more sense if viewed through the lens of jury responsibility, rather than solely through the lens of jury decisionmaking.

    In Part V, I ground my argument in concrete recommendations. In sum, jury decisionmaking in criminal cases ought to be structured in such a way as to ensure that each juror understands, acknowledges, and confronts his or her agency in that jury's decision. Several concrete measures appear capable of achieving this end without unduly compromising the jury's ability to perform its more generally recognized decisionmaking function. First, if juries are to be the place where we take turns confronting and accepting individual responsibility for what we have collectively decided to do, we ought actually to take turns -- all of us. We ought not be able to put that obligation on the shoulders of some identifiable subset of the community. Second, consistent with overwhelming current practice, unanimous verdicts ought to be required in criminal cases. Third, contrary to current practice, juries ought to be informed as to what punishment will be imposed in the event of a conviction.

    My fourth and final recommendation is more tentative. Jurors should be instructed in such a way as to encourage them to feel a sense of agency in bringing about the consequences of their decisions. While this recommendation may appear on its face uncontroversial, its implications are serious, and its application uncertain. It amounts to a suggestion that juries should be made aware, albeit indirectly, of their power to nullify, but without being encouraged to use that power. I use the term "power" rather than "right" because I do not advocate nullification. On the contrary, I argue that jurors have a duty to bring in a conviction when the evidence so warrants; and a refusal to do so represents a breach of that duty. Nullification, on my view, is not a right that jurors ought to exercise, but rather a risk that we ought to bear.

  2. WHY ARGUE ABOUT THE MEANING OF THE JURY?

    1. The Meaning of the Criminal Trial Jury

      The jury has been described and justified from a wide range of perspectives. So why muddy the theoretical waters with yet another justification? In particular, why seek to articulate an additional role rooted in difficult-to-articulate and highly subjective notions of courage or cowardice? Four reasons:

      First, and most obvious, juries perform a range of roles which need not be mutually exclusive. Debate over the evidentiary and procedural rules and practices governing jury trials ought to be informed by the fullest possible understanding of the societal role played by those trials. Analysis of the jury should not, for the sake of simplicity or theoretical elegance, ignore significant functions merely because they may be difficult to quantify. Imagine, for example, a family lawyer studying potential reform in child custody law. He or she would recognize that families provide children with food, shelter, and education -- three good justifications for the family as an institution. However, only the most narrow of Gradgrind's intellectual descendants would ignore things like love, companionship, and personal identity formation, merely because they are hard to define with precision.

      Second, recognizing the jury's responsibility-taking function does not require setting aside more traditional explanations for the jury. Nothing in this article is intended to deny that the jury's central and primary function, both doctrinally and in fact, is and ought to be the fair and accurate resolution of disputed questions of fact. It would be a mistake, however, to allow the regulation of the jury trial, let alone its continued existence in various contexts, to turn entirely on its efficacy as a factfinding device.

      Among the many other functions assigned or attributed to the jury are those keyed to political, rather than strictly judicial, concerns. At least since De Tocqueville pointed out the way in which the jury in nineteenth-century America served as both a locus for popular participation and a device for civic education,(3) scholars have debated the propriety and efficacy of the jury as a civic or educational institution. These political or civic roles may be loosely referred to as the communitarian function of the jury. For example, it has been suggested that juries may help secure public acceptability of otherwise controversial outcomes,(4) or provide a needed sense of public catharsis.(5) By one account, the criminal trial jury in particular is described as performing three sorts of communitarian roles: "1) a vehicle for direct community participation in the criminal justice system; 2) a means by which the community is educated regarding the criminal justice system; and 3) a...

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