July 7th, 2009 09:26 EST
Jewels of Justice
Although the United States declared independence from Great Britain in 1776, it retained the English institution of trial by jury as a centerpiece of its justice system. Americans` deep distrust of centralized government power led to overwhelming approval of federal and state constitutions ensuring that a litigant`s peers would be the preferred deciders of guilt or innocence in criminal cases and of liability or nonliability in civil trials.
In the centuries that followed, the U.S. public maintained its solid consensus about the value of trial by jury. However, during that same time, jury trials were still being conducted with adherence to many 18th-century assumptions and practices. Specifically, judges and lawyers coveted control of the trial - speaking often in jargon and requiring other participants to follow legal procedures without explanation. As masters over the presentation of cases, judges ordered citizen-jurors to remain silent and totally passive until the very end when it came time to render their verdict.
These practices are changing. Beginning in the 1990s, authors in the popular and legal media have made sustained attacks against jury trials, especially in civil cases. Frequent litigants, often commercial enterprises, repeatedly pointed to a few large, seemingly irrational, jury damage awards as evidence that the civil jury system had spun out of control. Many lawyers and clients in both criminal and civil cases complained that the social features of citizens picked for jury service did not mirror the characteristics of the general population - namely, not enough representation of ethnic minorities and different economic classes.
To address these criticisms (whether based in fact or perception), the American Bar Association (ABA) and the National Center for State Courts (NCSC) launched an intense effort to persuade judges and lawyers to improve jury trial practices with the aim of increasing public trust and confidence in the system. After commissioning a balanced group of trial practitioners and jury experts from across the country, the ABA promulgated Principles for Juries and Jury Trials ( http://www.abanet.org/jury/pdf/final commentary_july_1205.pdf ), with accompanying authoritative commentary. These principles are now the "gold standards" by which to measure U.S. jury trial practices. Thanks to NCSC`s Center for Jury Studies and a growing number of trial judges and lawyers across America, the principles are being utilized at bench and bar education conferences for policymaking guidance and practical training.
Here are a few samples of the principles:
Principle 2 states, "Citizens have the right to participate in jury service and their service should be facilitated." Toward that end, the principle cautions that citizen eligibility for jury service should not be limited or denied on the basis of race, gender, age, national origin, disability, or sexual orientation. It suggests that the time required for jury service "be the shortest time period consistent with the needs of justice." Moreover, citizens who serve should be paid a reasonable fee to help meet their routine expenses such as travel, meals, and child care.
Principle 7 provides that courts should protect juror privacy. For example, it suggests that, following jury selection, the court should keep a juror`s personal information confidential unless good cause to do otherwise is shown. The principle encourages courts, during jury selection, to question prospective jurors outside the presence of other jurors with respect to their prior exposure to matters that are potentially prejudicial or if the case contains issues that are personally sensitive.
Principle 10 advises courts to use open, fair, and flexible procedures to select a representative pool of prospective jurors. Responding to criticism that too many juries do not mirror the demographic qualities of the court`s community in terms of race, gender, and income level, this principle forcefully states that there should be no automatic exemption from jury duty based upon a citizen`s occupation. Physicians, lawyers, police officers, politicians, and members of other occupations should not be presumed immune from jury service. Moreover, the principle says courts should summon citizens to jury service using multiple source lists, such as driver`s license records, voter registration lists, and income tax rolls, in order to include the broadest portion of the community served by a court system. Underlying this principle is the view that when courts seek inclusiveness in their summoning process, they promote public confidence that litigants will likely be tried by a jury
of their peers.
To respond to criticism that juries are not competent to understand the facts and applicable law in many modern cases, such as those involving complex financial transactions or specialized medical procedures, several principles direct judges to be more than mere umpires and attorneys to be more than pure combatants.
For example, Principle 13 advocates that courts and parties "vigorously promote juror understanding of facts and the law" throughout the trial. Specifically, this principle recommends that jurors be allowed to take notes, have trial notebooks containing court instructions and common exhibits, submit written questions to witnesses in civil cases, and discuss the evidence among themselves during lengthy trials of civil disputes.
Even before the presentation of evidence in cases, Principle 6 says, courts should provide early orientation programs to citizens summoned for jury duty regarding the essential aspects of a jury trial, using a combination of written, oral, and audiovisual materials. Moreover, this principle urges courts to give not only comprehensive legal instructions at the end of each jury trial, but also pretrial instructions about basic concepts and procedures. Important also, to counter the widely held criticism that judges, lawyers, and expert witnesses too often use unintelligible jargon, the principles advise courts to instruct the jury "in plain and understandable language."
In response to the custom of courts to avoid giving concrete assistance to deliberating juries struggling to render a verdict, Principle 16 recommends that courts, in consultation with the trial lawyers, carefully offer assistance to juries "when an apparent impasse is reported." This principle challenges the age-old habit of courts to suddenly become passive and silence-prone when a deliberating jury communicates its trouble reaching agreement. Principle 16 suggests that, during jury deliberations, when, perhaps, a jury`s need for clarity is highest, judges and lawyers be generous, not stingy, with their talents.
In the United States, where jury trials are a national treasure, these jewels of justice are being continuously polished.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.
(This is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://www.america.gov)
Two organizations are promoting principles aimed at making juries more representative of their communities and changing the way trials are conducted to give jurors a better understanding of complex issues. Gregory E. Mize, a former trial judge in Washington, D.C., is now a judicial fellow at the National Center for State Courts. He welcomes your feedback at GMize@ncsc.org ( mailto:GMize@ncsc.org ). This article appears in the July 2009 issue of eJournal USA, Anatomy of a Jury Trial.
By Gregory E. Mize