By Christian Leedy
he jury system is a product of the Bill of Rights — the Seventh Amendment guarantee of a trial by one’s peers in the form of a jury. The framers of the Constitution were clear in their intent to safeguard access to justice by ensuring review by a panel of impartial citizens.
But what this enshrined system actually gives us today is a pale reflection of its original intent. It has so far departed from what it originally intended to achieve that we have lawyers cooking up complex methods to exploit the system’s flaws and obtain jurors “favorable” to their clients, further subverting the impartiality of the system and its product.
In The Jury, author Stephen J. Adler focuses on two major problems he found to be undermining the system: “jury consultants” who help to engineer jury panels favorable to clients and their counsel, and the “peremptory challenge” system, through which lawyers can eliminate jurors at their whim. These problems, he posits, are central to the failure of the system.
But where Adler is most compelling is when he addresses the issue of finding jurors who can meaningfully consider the case before them.
The “Peer” Problem
Put yourself in the position of a small tobacco company seeking to successfully enter the low-price “generic” cigarette market and realize a profit, only to find huge cigarette companies trying to shut your company down by creating their own low-end “lines” of cigarettes and then saturating the market. You find that your remedy is through complex “anti-monopoly” laws, and you hire lawyers to file a suit to obtain relief in the courts.
But, after spending tens of thousands of dollars developing the evidence to take the case to trial, you find that your jury consists of anything but your “peers.” Among the laid-off laborers, teachers, housewives and the like, you find not a single person connected with business or anything remotely similar to what you do; in fact, everyone who received a jury summons and did fit into the category of “peer” begged off. Their reason: work-related conflicts.
Your hopes of appearing before a jury that understands and cares about the issues dwindle.
This is an example given by Adler as a real-life story of how the system is a constant failure. But it is only half the story — there are jury problems far beyond lack of understanding of the issues. Jurors who are not the “peers” of those involved or otherwise not qualified to sit in judgment can be biased or develop prejudices beyond the repair of any “jury instruction.” A jury composed of people who do not comprehend what is happening before them can only act arbitrarily at best. At worst, they could act out of resentment for the party they found the hardest to understand.
One of the key sources of this problem is that the jury system allows virtually all jurors who are educated and employed to be excused from the jury pool — in most cases, depriving the pool of those most qualified to consider the issues in court. Provisions allow certain people such as “soldiers, police officers, or public officials” to be automatically excused. Added to these, Adler points out, is “... a vast amorphous zone of possible exits under the category of ‘undue hardship or extreme inconvenience’.”
But an issue related to this — though not touched on by Adler — is that the role of juror has become a position to avoid, not envy. Jurors are almost never able to obtain adequate compensation for their time off work, they are often forced to labor under uncomfortable and unpleasant conditions — and, sometimes, they are even totally removed from their lives, their families, their homes. It is hardly mysterious that few people willingly accept the role.
“Squeezing into the friendly ‘hardship’ category is an art form practiced by many busy, well educated people who otherwise would make excellent jurors,” notes Adler. “The biggest category of excuses: work-related conflicts. It is not surprising, then, that about half of the 150 people who showed up for jury duty [in the Imelda Marcos case] on March 15, 1990, made a beeline to the jury clerk’s office to plead to be excused. About 50 got off on the spot. The prosecutors in the case, who were present in the court room, shrugged knowingly; lots of college graduates who’d be good at sorting through the complex financial evidence in the case were, as expected, already racing through the exits.”
In the Marcos case, precise records of the qualifications of those jurors excused were not kept, but “such results were documented with shocking clarity in the Watergate-related Mitchell-Stans trial in the same New York federal court in 1974. Of the 196 people who were initially called, 88 had attended some college.” The jury finally seated in that case “included only a single person who had advanced past high school.”
Solutions to Jury Problems
Although Adler recommends solutions to make life easier for jurors and to make their role more meaningful, he never comes up with a cure for the ailing system. To address the problem of obtaining jurors who are qualified to pass proper and informed judgement on those disputes that come before them, far more drastic reforms are necessary. |
Although Adler recommends solutions to make life easier for jurors and to make their role more meaningful, he never comes up with a cure for the ailing system.
To address the problem of obtaining jurors who are qualified to pass proper and informed judgment on those disputes that come before them, far more drastic reforms are necessary.
First, prospective jurors must receive compensation adequate to allow them to serve on a jury without financial peril. They should also be provided with adequate facilities for their service in court, rather than making that time uncomfortable and impractical. Restrictions should be lifted on such things as asking questions, affording them the chance to clarify anything needed and also take a more meaningful part in the proceedings.
Second, complicated impaneling and jury instruction procedures should be dropped entirely. In their place, jury questionnaires should be tailored to the people and issues involved. For example, if the case is a business dispute, the questionnaires would seek out those who are either engaged in business or familiar with it. And it would also ask up front for any connections or interests which would influence favoring one side or the other.
The use of peremptory challenges as a tool to discriminate against jurors should be abolished, and lawyers must be required instead to show good cause to eliminate a juror. And, last but not least, the use of psychiatrists or other ersatz “experts” to try to “select” favorable jurors should be outlawed. The primary responsibility for selecting qualified jurors should be placed in the hands of the trial judge.
Adler writes that “A jury system that works as badly as this book shows it does simply shouldn’t, and won’t survive. It may never be abolished, given its protected status among our national myths and in our Constitution. But it will certainly erode, a process that is already well under way. The real question is whether the jury system is worth saving in principle and, if so, whether we can improve it sufficiently to make it worth saving in practice.”
The Jury functions well as an alert to the perils of the paralyzed jury system, but Adler himself appears to subscribe to the national myth to some extent and doesn’t go far enough. The Jury’s value will rise above the level of reading pleasure if the knowledge it provides becomes the basis for rebuilding the jury system, so that it might serve the purpose for which it was established.
