The jury is still out: the role of jury science in the modern American courtroom.

AuthorBarber, Jeremy W.
  1. INTRODUCTION 1226 II. THREE HISTORICAL RATIONALES FOR JURY TRIALS 1227 A. The Sixth Amendment Impartial Jury Mandate 1227 B. A Jury of One's Peers 1228 C. Juries as a Bulwark of Democracy 1229 III. JURY SCIENCE 1230 A. The Origin and Evolution of Jury Science 1232 B. What is Jury Science? 1234 1. Ranking Scales 1235 2. Community Attitudinal Surveys 1235 3. Juror Investigations 1236 4. In-Court Assessment of Juror Non-Verbal Communication. 1236 5. Group Dynamics Analysis 1237 6. Focus Groups 1237 7. Mock Trial 1237 8. Shadow Juries 1238 C. Negative and Positive Aspects of Jury Science 1239 1. Concerns Raised by Jury Science 1239 2. Benefits of Jury Science 1243 D. Managing a Jury System That Relies on Jury Science 1245 1. Equal Access to Data 1245 2. State Funding for Indigent Defendants 1245 3. Prohibit the Use of Jury Science 1246 4. Judge-Conducted Voir Dire or Abolition of Peremptory Challenges 1246 5. Attack Structural Biases in Jury Selection 1247 6. Disclosure of Use of Jury Science 1247 7. Maintain the Status Quo 1247 IV. JURY SCIENCE AND THE FAIRNESS OF THE JURY SYSTEM 1248 A. An Analytic Framework 1248 B. Reconciling Jury Science with the Rationales for Jury Trials 1249 1. The Sixth Amendment's Impartial Jury Mandate 1249 2. A Jury of One's Peers 1249 C. Resolving the Impartiality/Peer Tension 1250 D. Juries as a Bulwark of Democracy 1250 V. CONCLUSION 1251 "Never forget, almost every case has been won or lost when the jury is sworn."(1)

  2. INTRODUCTION

    In the aftermath of the Rodney King and Reginald Denny trials and in the lengthening shadow of astronomical jury product liability awards, the American jury has come under increasing examination and assault. Despite all of this attention on the jury as an institution, there is little debate about jury science, a phenomenon that has ballooned over the past twenty years and threatens to undermine the basic values of our jury system. Many questions surround this science which, today, shapes many major trials. Where did it come from? What are its implications for the fundamental assumptions and models of American jury trials? And why has the science escaped public scrutiny?

    This Note will first explore three distinct historical justifications for jury trials. Two of these rationales(2) appear to be irreconcilable.(3) This Note will analyze the tension between the ideals of an impartial jury and a jury of one's peers and discuss the effect of jury science on these values. The Note then will trace the evolution of jury science;(4) examine what this science accomplishes and where it is used; analyze the arguments for and against the use of jury science; and make limited recommendations about how best to manage a jury system which increasingly makes use of and relies on this science. Further, the Note will explore the impact jury science has had upon both our rationales for juries and our perception of juries.(5) Finally, this Note will suggest an analytic framework for the use of jury science.

  3. THREE HISTORICAL RATIONALES FOR JURY TRIALS

    1. The Sixth Amendment Impartial Jury Mandate

      The first model for a jury trial is found in the Sixth Amendment, which calls for an impartial jury in a criminal trial.(6) The Sixth Amendment guarantee of an "impartial jury"(7) was intended to ensure the impartiality of the individual juror as well as the process by which the jurors are selected. The Due Process Clause has been construed to require an impartial tribunal, but not an impartial jury.(8) The Supreme Court has defined an impartial juror as one who is able to base a verdict on the evidence developed at trial and not on any preconceived notion or bias about the defendant's innocence or guilt.(9)

      Prosecutors have relied on the impartial juror mandate of the Sixth Amendment to justify selecting jurors who come from backgrounds different from that of the defendant, in order to ensure that the jury is not overly sympathetic with the defendant.(10) Despite the Sixth Amendment's edict, the adversarial climate of our legal system encourages neither defense nor prosecution attorneys to truly seek an impartial jury.(11) Instead, our system assumes that the adversarial struggle itself will foster a climate that produces impartial juries. The hope is that both the defense and prosecution will aggressively seek partial jurors and that this process will balance out, leading to the eventual empaneling of an impartial jury.

    2. A Jury of One's Peers

      The second conception of jury trials comes from the historical notion of a jury composed of one's peers. The First Continental Congress in 1774 asserted that the colonists had the right to be "tried by their peers."(12) However, the definition of "peers," like the definition of "impartial," has caused the Supreme Court some difficulty. Although the term is not directly included in either the Sixth or the Seventh Amendment right to a jury trial, it is clearly part of the historical understanding of the notion of a jury trial.(13)

      At the time of the Magna Carta, "peer" probably meant "equal."(14) A baron's peer was a baron, a knight's peer was a knight, and a Jew's peer another Jew.(15) In American trials, the definition of "peer" has expanded to encompass members of the defendant's community. The Supreme Court has defined "peers" to mean "neighbors, fellows, associates, [and] persons having the same legal status in society as that which he holds."(16) However, the definition of community is malleable; for example, a defendant who was raised in poverty in a broken home may be entitled to a jury composed of others from the same background. The Supreme Court has rejected this notion,(17) but the expansive reading is not an implausible construction of "peer" or "community."

      The concept of "a jury of peers" developed to assure empathy for the accused.(18) However, the concept is often relied upon by defense attorneys to assure that the defendant be tried not by an impartial jury, but rather by one partial to the defendant.(19) We must determine if our jury system anticipates and relies on this maneuvering, or if it is ignorant and thus may be undermined by such practices.

      At first glance, there appears to be a contradiction between the requirement that a jury be impartial and that it be composed of one's peers. The dilemma is whether a jury of a defendant's peers can be impartial, in the sense of being free of sympathy for the defendant. However, the goals of impartiality and representativeness can be viewed as compatible. A peer need not be one whose plight and station in life is a mirror reflection of the defendant's, but rather one who is similarly enough placed, in socioeconomic and geographic terms, to be able to see the defendant's act in context. An impartial juror might be capable of judging a case on the evidence presented, rather than on a special understanding of the defendant's behavior.

    3. Juries as a Bulwark of Democracy

      The final justification for juries is that they play a significant role in America's democratic and pluralistic tradition. Alexis DeTocqueville illuminated the empowering effect of jury participation upon the citizens of a democracy:

      He who punishes infractions of the law is therefore the real master of society. Now, the institution of the jury raises the people itself, or at least a class of citizens, to the bench of judicial authority. The institution of the jury consequently invests the people, or that class of citizens, with the direction of society.(20)

      The society is given the opportunity to apply its values and participate in the administration of justice through jury service.

      Moreover, jury service delivers an even larger democratic good. Sharing in the administration of justice as a juror gives the public confidence in the administration of justice.(21) Juror participation in the administration of justice also "enlarges the human matrix of diffusion of responsibility through which people more easily make the difficult decisions that somehow must be made."(22) For example, the public met the jury's decision that John Hinckley was not guilty by reason of insanity for his attempted assassination of President Reagan with relative calm. The public may perceive otherwise controversial decisions as fair because they know their peers have considered the problem carefully.

      The infusion of laymen into the criminal justice system legitimizes the administration of justice and bolsters democracy. It counters the professional desensitization that is inevitable in those who confront the criminal justice system daily.(23) Through juror nullification, a jury has the power to mitigate some of the harshness of the numb, professional administration of justice and to provide some clemency and mercy. This role of the jury strengthens the administration of the law by ensuring that the community can always breathe its own values and insight into the dispensation of justice.

      Finally, jury service fortifies America's populist tradition. Unlike many more elitist governmental bodies, the venire is drawn from the community at large.(24) Jury decision making, more than any other form of government in our representative democracy, is "literally the vox populi--the voice of the people."(25)

  4. JURY SCIENCE

    If it is true that every case "has been won or lost when the jury is sworn," then the introduction of a scientific method of selecting juries should send a tremor through the legal world.(26) However, the American legal community appears unimpressed by the introduction of jury science.(27) One must assume that this wan reaction arises either from a perception that the science does not really work and that juries cannot be rigged, or from a reluctance to admit that it does work and then face the consequences for jury trials. Either way, any new technology that potentially allows attorneys and parties to tamper with the construction of juries and the outcome of trials merits serious scrutiny.

    Attorneys who have begun to...

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