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Monday, May 23, 2011

Serving on a Jury

Juries are wonderfully effective in shaping a nation’s judgment and increasing its natural lights. That, in my view, is [the jury system’s] greatest advantage. It should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law, lessons which the advocate’s efforts, the judge’s advice, and also the very passions of the litigants bring within his mental grasp. I think that the main reason for the practical intelligence and the political good sense of the Americans is their long experience with juries in civil cases.
In The Jury and Democracy (Oxford University Press, 2010), John Gastil, E. Pierre Deess, Philip J. Weiser and Cindy Simmons confirm Tocqueville's observations. Drawing on in-depth interviews, systematic surveys of jurors, and public records, they show that jury service can affect how citizens view themselves and their government, and can sometimes increase voter turnout. It also sparks changes in media use, political action, and community involvement.

Last week, I served on a jury at the Clara Shortridge Foltz Criminal Justice Center in downtown Los Angeles. It was indeed an educational experience. During the orientation, a judge told prospective jurors about her visit to post-apartheid South Africa, where she taught local officials about the American jury system. The South Africans, she said, were surprised that the United States does not have different classes of jurors, that a random group of citizens might deal with a simple theft or a complex case of securities fraud. In the latter kind of case, she added, attorneys bear the burden of making the facts and law accessible to the non-experts serving on the jury.

After a relatively short wait in the assembly room, I was part of a group that went upstairs for what turned out to be a drug case. During voir dire, both sides prefaced their questions by making important points. The prosecutor warned us that shows such as CSI are not realistic, and that we should not expect a vast array of high-tech evidence. The public defender reminded us of the presumption of innocence (though she incorrectly attributed the idea to the Constitution). The attorneys struck potential jurors, and in most cases the reasons seemed obvious (e.g., an expressed preference for one side or the other).

The opening statements were short lectures about the facts and the law. The prosecutor said that "reasonable doubt" does not mean "all possible doubt." The public defender stressed that the prosecution would have to prove several elements of the case, and that failure to prove any element would require acquittal. Then the court took testimony, mostly from police officers. An undercover cop testified that he had bought a small amount of crack cocaine from the defendant, and another said that he had watched the deal from across the street. Others testified about the physical evidence.

At day's end, the judge reminded us not to do our own research into any aspect of the case. When it comes to deliberation about public issues, more information is usually better, but during trials, there are good reasons to abstain from independent fact-gathering. For one thing, research can turn up false or misleading information. For another, it can create prejudice. Our job was to render a verdict: the judge was to choose the sentence. Knowledge of the penalty might have colored our decision.

The next morning brought closing arguments and the judge's instructions. As if to emphasize the educational aspect of the trial, the judge began, "I will now instruct you..."

Gastil et al emphasize the crucial role of deliberation, showing how citizens derive great benefit from reasoning together on the merits of a case. They usually walk away knowing that their fellow jurors have taken the job very seriously. We certainly did. Although our case was relatively simple, we strove to be very careful and thorough. We looked at each element of each count, floating ideas, raising possible problems with the evidence, pondering the meaning of the judge's instructions. Everybody was on an equal footing, even though we came from extremely diverse backgrounds. (It really was a jury from central casting: one of the members had been a regular on a long-running situation comedy.)

In the end, we decided that that defendant was guilty on both counts. There was no sense of triumph, no feeling of "we got him!" He was apparently homeless, and had no friends or family in court. When he stood up to hear the verdict, we could see the tag on the suit that the county had bought for him. He cried when he heard the verdict of guilty. We all felt very sorry for him, since his rough life would now get even worse. But we had no reasonable doubt about his guilt.

At the end, the judge thanked us for our service, and spoke about the importance of the jury in the United States. He noted that it was a form of direct democracy. That comment related to the closing chapter of The Jury and Democracy, which compares the jury system with initiative elections and explains why juries provide for much better deliberation.

The authors discuss various reforms of the process, including the idea of letting jurors pose questions during the trial. We could not, even though our deliberations suggested that my fellow jurors would have asked very relevant and perceptive questions.