If you like laws and sausages, you should never watch either one being
This Comment argues that jury deliberations should be transcribed as part of the ordinary trial record and be subject to a limited judicial review. Such limited review is the proper way to mediate the conflict between two important political principles. On the one hand, there is a pragmatic need to accept some degree of imperfection in our political institutions and to permit such imperfection to pass unexamined--hence the appeal of Bismarck's wry comment.(2) On the other hand, meaningful self-government requires accountability of the government to the governed. Hence, the principle behind Bismarck's remark should be deeply troubling to any proponent of the democratic ideal, for that principle demands a degree of popular acquiescence to the conduct of government in secret, which is a step in the direction of government without the consent of the governed.(3) An important political question is how to strike the proper balance between the pragmatic refusal to demand perfection of our political institutions and the countervailing demand of accountability of those institutions to the governed.(4) With respect to jury deliberations, this means striking the proper balance between the need for jury secrecy and the public's demand to supervise the jury's activity.
To insist on the near-absolute secrecy of jury deliberations, as courts and commentators routinely do, is to ignore the need for balance, favoring pragmatic secrecy over principled openness.(5) Where government activity must be conducted in secret, so that the actors are not accountable directly to the public, those actors should be overseen by, and accountable to, other government representatives.(6) The jury, however, is essentially accountable to no one. Jurors decide whether the coercive power of the state should be invoked to deprive a party of liberty, property, or even life. Such governmental decisionmakers should be accountable to the people.(7) Jury secrecy, as currently practiced, does not properly balance the pragmatic tolerance of imperfection and the public's demand for accountability.
While jury secrecy as currently practiced is too extreme, the remedy to this is not a general right of access to jury deliberations. The secrecy of the jury is a treasured feature of our common-law heritage,(8) and a proposal to infringe in any way on that secrecy should expect strong resistance. Any claim for a general right of access to jury deliberations ignores the valid insight that some degree of jury secrecy is probably necessary to the fair and efficient administration of justice.
Failure to acknowledge the legitimacy of both of these opposing claims impairs critical reflection on the institution of the jury. To illustrate this point, the Comment analyzes the debate over CBS's recent network-television broadcast of jury deliberations.(9) The controversy nicely demonstrates the need for a critical attitude more tolerant of compromise and more amenable to the proposal advanced here: to supervise the jury's decisionmaking more closely than it traditionally has been.
Consequently, the structure of the Comment is as follows. Part I explains the background of the CBS project and the procedure followed in taping the jury deliberations for network broadcast. Part II surveys arguments for and against televising jury deliberations. On the basis of Parts I and II, Part III shows that neither the near-absolute secrecy that jury deliberations currently enjoy nor the network broadcast of jury deliberations is desirable. Part III then argues that a mediating alternative is more appropriate: Transcribing jury deliberations for judicial review satisfies the demand for public accountability underlying the efforts to televise jury deliberations, while protecting the jury from some of the more unwanted intrusions that television broadcast entails. Part IV examines the legality of recording jury deliberations for judicial review. While no constitutional impediment to such a procedure exists, there are certain statutes and rules that would bar the procedure; Part IV therefore recommends amendments to those statutes and rules. Part V then offers some proposals as to the nature and scope of judicial review of a jury-deliberation transcript.
THE CBS PROJECT: BACKGROUND AND PROCEDURE
In April 1997, the CBS television network aired a documentary consisting primarily of actual footage of criminal-jury deliberations.(10) This Part describes the historical background of the project and the procedure followed in taping jury deliberations for network broadcast.
The CBS project is simply the latest in a series of public inquiries into juries' secret deliberations. Post-verdict interviews of jurors by the media are quite common and have been the subject of significant legal commentary.(11) There have also been other forms of media intrusion into, as well as nonmedia public inspection of, jury deliberations.
Possibly the most infamous inquiry into jury deliberations was conducted not by the media but by social-science researchers. Members of the Chicago Jury Project tape-recorded jury deliberations in the Federal District Court in Wichita, Kansas.(12) The revelation of this breach of jury secrecy and the ensuing scandal(13) prompted Congress to enact an absolute ban on any recording of jury deliberations in the federal courts.(14) Despite the scandal, the intrusion produced a study of the American jury that remains preeminently authoritative.(15)
While the Chicago Jury Project may be the most striking example of inspection of jury deliberations, media inquiries into the jury's secret deliberations are more common. Typically, the media probe the jury's deliberations through post-verdict interviews, but other techniques also have been tried. Television producers have reassembled actual juries to reconstruct their deliberations before the camera.(16) And on one prior occasion, a jury deliberation has been broadcast on television. PBS filmed the deliberation of a jury in a Wisconsin criminal trial for a documentary that was aired in 1986.(17) Never before, however, has a commercial broadcast network televised the deliberations of either a criminal or a civil jury.(18)
As it turned out, CBS was able to film criminal juries only, because the project underwent significant changes between planning and execution. CBS proposed to record the deliberations of criminal juries in Arizona and of civil juries in Maine. The high courts of each state granted permission for the filming.(19) The recording of civil juries in Maine, however, ultimately fell through. Producers identified seventeen docket entries as candidates for taping but were only able to find one case in which both parties would consent to having the jury filmed. That case, an automobile-accident negligence claim, settled shortly before trial. The producers hurriedly tried to find another case to film, but were unsuccessful and gave up in the face of impending production deadlines.(20)
CBS has successfully recorded four criminal trials and deliberations in Arizona.(21) The production protocol followed in Arizona was essentially the same as that submitted to the Maine Supreme Judicial Court,(22) which incorporated the protocol by reference in the court's administrative order.(23)
The most relevant features of the procedure followed in the CBS project are that consent not only of the court, but of all parties(24) and of the individual jurors(25) was obtained,(26) and that the parties waived the filming of the deliberations as a basis for appeal.(27) Under these conditions, highlights from the four Arizona criminal trials and deliberations were aired as part of CBS's documentary.(28)
DEBATE ON THE CBS PROJECT: MAINTAINING ABSOLUTELY JURY SECRECY VERSUS TELEVISING JURY DELIBERATIONS
Debate surrounding the CBS project illustrates the problems that arise from the failure to acknowledge the need to compromise between two competing values: (1) accountability and (2) pragmatic tolerance of imperfection in our political institutions. The CBS project and other public inquiries into jury deliberations are certainly instances of sensationalism in the media. These inquiries, however, also indicate an understandable desire for a more accountable jury system.(29)
There is a similar mixture of illegitimate and legitimate motivations in the opposition to the CBS project. On the one hand, opposition arises from an illegitimate, purely reactionary, conservatism that resists change merely because it is change.(30) On the other hand, opposition also arises out of a legitimate concern for the preservation of the dignity of our judicial institutions and the neutrality of the jury.(31)
This Part of the Comment endeavors to demonstrate three points. First, detractors have attacked the CBS project merely because it involves a breach of jury secrecy. This criticism manifests a knee-jerk conservatism and is not an adequate criticism of the project.(32) Second, CBS's critics make a more persuasive point when their criticism is directed at the project's special character as a televised breach of jury secrecy. Nonetheless, this criticism is not tempered by any acknowledgment of the legitimate desire to inspect the jury's activity. This weakens the criticism significantly.(33) Third, a more valid criticism of the CBS project, one that recognizes the legitimacy of the concern for accountability that animates the project, is that this media inspection of the jury's deliberations cannot be supported by any of the traditional justifications of press access to government activity.(34)
Overall, this Part of the Comment seeks to establish that there is a legitimate need to observe more closely the jury's deliberations, and that failure to acknowledge this need leads to two problems. At the social level, failure to acknowledge the need to supervise the jury invites attempts like the...