Plea Bargaining

Many posts have discussed the American legal system.

Jacob Sullum at Reason:

Criminal defendants make similar calculations every day, which explains why about 95 percent of felony convictions in the United States are based on guilty pleas. In federal courts, the percentage is even higher: about 98 percent in fiscal year 2025, according to the U.S. Sentencing Commission.

It is not hard to understand why criminal defendants almost never opt for trials. "At the federal level," the National Association of Criminal Defense Lawyers reports, "trial sentences are roughly three times higher than plea sentences for the same crime on average and sometimes as much as eight or ten times higher." The threat of a "trial penalty," which may include additional charges as well as longer sentences, has transformed a constitutional right into a legal fiction. While TV shows and movies still depict trials as the standard way criminal cases are handled, such showdowns have become vanishingly rare in the real world.

As the Supreme Court acknowledged in 2012, "criminal justice today is for the most part a system of pleas, not a system of trials." You might think the Court would have something to say about that situation. But for more than half a century, it was unfazed by the replacement of trials with plea bargains, which it described as "highly desirable" and "an essential component of the administration of justice." That attitude gave prosecutors free rein to coerce guilty pleas by threatening defendants with severe consequences if they insisted on making the government prove its case.

Federal Grand Juries

A number of posts have discussed juries.

John Gramlich at Pew:

Federal grand juries indict tens of thousands of people per year in the United States. Several times in the past year, however, they have made headlines for not indicting people the Trump administration has tried to prosecute, including six Democratic members of Congress and the Democratic attorney general of New York.

Here are answers to some common questions about federal grand juries, based on information from the Congressional Research Service, the Administrative Office of the U.S. Courts, the Bureau of Justice Statistics and other sources.

• What exactly is a grand jury?
• How do federal grand juries work?
• Who can serve on a federal grand jury?
• How many Americans serve on federal grand juries each year?
• How many people do federal grand juries indict each year?
• How often do federal grand juries decline to indict someone?

Tocqueville on Juries

From  Democracy in America [eds. J. P. Mayer and Max Lerner, trans., George Lawrence, Harper & Row, 1966, pp. 249-53]

To regard the jury simply as a judicial institution would be taking a very narrow view of the matter, for great though its influence on the outcome of lawsuits is, its influence on the fate of society itself is much greater still. The jury is therefore above all a political institution, and it is from that point of view that it must always be judged. ..

The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.

Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.

Juries teach men equity in practice. Each man, when judging his neighbor, thinks that he may be judged himself. That is especially true of juries in civil suits; hardly anyone is afraid that he will have to face a criminal trial, but anybody may have a lawsuit.

Juries teach each individual not to shirk responsibility for his own acts, and without that manly characteristic no political virtue is possible.

Juries invest each citizen with a sort of magisterial office; they make all men feel that they have duties toward society and that they take a share in its government. By making men pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.

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.

I do not know whether a jury is useful to the litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.

Civil Juries

Alexis de Tocqueville, Democracy in America (Lawrence/Mayer ed., p. 274):

Juries, especially civil juries, instill some of the habits of the judicial mind into every citizen, and just those habits are the very best way of preparing people to be free.

It spreads respect for the courts' decisions and for the idea of rights throughout all classes. With those two elements gone, love of independence is merely a destructive passion. 

Juries teach men equity in practice. Each man, when judging his neighbor, thinks that he may be judged himself. That is especially true of juries in civil suits; hardly anyone is afraid that he will have to face a criminal trial, but anybody may have a lawsuit.

Juries teach each individual not to shirk responsibility for his own acts, and without that manly characteristic no political virtue is possible.

Encouraging Trend on Jury Duty

Previous posts (including a first-hand account of my own experience) have discussed jury duty.

Russell Contreras at Axios:

Driving the news: Jury consultant Jason Bloom tells Axios that, historically, as many as one in four U.S. adults who are called for jury duty seek to be excused, citing hardships. But now, that number has shrunk to around only 5%-10%, he says.

Why it matters: There's a clear upside to enhanced civic engagement, but former prosecutors warn that it's as essential as ever to make sure that potential jurors are fair and don't come into cases with agendas.

The big picture: The projected jump in participation follows the killing of George Floyd; the trial, conviction and 22.5-year sentence of former police officer Derek Chauvin; and record voter turnout in 2020.

• During Chauvin jury selections earlier this year, a surprising number of Hennepin County residents in Minnesota were OK with serving, and a few were been flat out excited, as Nick Halter, the author of Axios Twin Cities, reports.
• One prospective juror said she voted in the November election because she wanted to become eligible for jury duty and called the process "fascinating." Another potential juror even said he was willing to delay his wedding to serve on the jury.

Courts are also facing case backlogs as they reopen following pandemic shutdowns.

What they're saying: “There are many ways to impact our communities," District of Columbia Attorney General and National Association of Attorneys General president Karl Racine tells Axios. "A critical piece of civic engagement is serving on a jury and I hope this means more people will answer that call to service."

Race and Online Deliberation

Ken Broda-Bahm at JD Supra;

As the coronavirus pandemic drags on and intensifies, courts around the country are moving toward reopening in fits and starts, with distancing, temperature checks, masks, and hand sanitizer. Some courts are also exploring distanced alternatives, including in some cases trial by Zoom, or by other web-conferencing tools that allow jurors to stay home. Including jury deliberations is “the final yard” in this transition, with some courts using the technology only for jury selection, while others are exploring deliberations as part of demonstrations or actual online trials.
...

If courts continue to move in this direction, what differences can we expect in deliberations? Will the medium of communication — in person or online — lead to differences in who participates? Discussions of online jury representativeness have focused on access to technology and to internet connections, and how they can be addressed (for example, by providing technology access in private rooms of courthouses or libraries). But what if the medium itself also causes differences in access? A large scale research project comparing in-person to online deliberations (Showers, Tindall, & Davies, 2015) was conducted five years ago, but now has new relevance. A team of Stanford researchers looked for demographic differences in comparing quality of participation across the deliberation styles, and while they found no significant differences based on gender, age or education, they did see a difference based on race. Online deliberation led to reduced black participation and increased white participation.

Showers, E., Tindall, N., & Davies, T. (2015, August). Equality of participation online versus face to face: condensed analysis of the community forum deliberative methods demonstration. In International Conference on Electronic Participation (pp. 53-67). Springer, Cham.

Jury Duty and Good Citizenship

John Gramlich writes at Pew:

In an April Pew Research Center survey, two-thirds of U.S. adults (67%) said serving on a jury “is part of what it means to be a good citizen.” Just 31% took the opposite view and said jury duty service “does not have much to do with being a good citizen.”

Majorities in most demographic groups connect jury duty service with good citizenship, but younger people, racial and ethnic minorities and those without a college education are less likely to do so.

For example, only half of those ages 18 to 29 say jury service is part of being a good citizen, compared with seven-in-ten or more in older age groups. Blacks and Hispanics are less likely than whites to see jury duty as a part of good citizenship, as are those with a high school diploma or less when compared with people with at least some college education.

When it comes to the number of Americans who actually serve on a jury in a given year, recent statistics are hard to find. But the National Center for State Courts, an independent research organization focused on the state judiciary, has estimated that only about 15% of U.S. adults receive a jury summons each year, and fewer than 5% of those who are summoned end up on a jury. The center’s 2007 estimates are based on a survey of 1,546 counties, representing about 70% of the U.S. population at the time.

Justices on Jury Duty

A number of posts have discussed jury duty.  Even high officials are not exempt.  The Washington Post reports:

One potential juror who was considered for a civil trial in Montgomery County on Wednesday morning could have brought a lot to the jury room. He’s the chief justice of the United States.

John G. Roberts Jr. showed up for jury duty in Rockville like other civic-minded citizens and was being considered for a civil trial in a case involving a car crash. He answered two questions in open court about relatives — noting that his sister in Indiana is a nurse, and his brother-in-law was with Indiana State Police — but none about his own line of work, which would be listed on a questionnaire. He then talked with attorneys and the judge privately at the bench.

Roberts was not selected, and left court without comment.

Justices are often called for jury duty — Justice Elena Kagan has been to the courthouse in the District at least twice — but rarely chosen. Roberts, who lives in Chevy Chase, was being considered for a two-day trial.

The Jury Right

At The Weekly Standard, David M. Wagner writes:

[Eighty-one] years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civilcases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.

In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said.

Perhaps, though, we shouldn’t drive too thick a wedge between jury service and voting. A jury votes, after all. Yale’s Akhil Amar, a major advocate of juries, even suggests that the Framers likened juries to a Parliament in miniature, with the jury analogized to the House of Commons, making the most important decisions, and the judge to the House of Lords, exercising a moderating but rarely reversing power. 

To whom did this “jury right” belong? The criminal suspect? The civil plaintiff and defendant? All of these—but also to the citizen who would take a turn as a juror. This was an important element of self-government. Citizens were to have a role not only in making laws (by voting for their representatives), but in enforcing and interpreting them too.

Noncitizens and Juries: A Bill Veto

Patrick McGreevy reports at The Los Angeles Times that Governor Jerry Brown (D-CA) has vetoed a bill allowing legal aliens to serve on juries.

“Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship,” Brown wrote in his veto message. “This bill would permit lawful permanent residents who are not citizens to serve on a jury. I don’t think that’s right.”

...
Assemblyman Bob Wieckowski (D-Fremont), said he was disappointed that the governor vetoed the jury bill. "Lawful permanent immigrants are part of the fabric of our communities, and they benefit from the protections of our laws, so it is fair and just that they be asked to share in the obligation to do jury duty, just as they serve in our courts, schools, police departments and armed forces," Wieckowski said. "I don’t see anything wrong with imposing this civic obligation on immigrants who can spend the rest of their lives in the United States.”
...
The bill, AB 1401, by the Assembly Judiciary Committee, divided the Legislature, with Republicans including Sen. Joel Anderson of Alpine arguing that serving as a juror is a special calling that warrants the special standing that citizenship provides. Other countries have different standards for guilt, innocence and due process, he noted.

“Allowing non-citizens to serve on juries threatens the integrity of our judicial system,” Anderson said. “In this country, we believe in due process and you’re innocent until proven guilty. Having non-citizens on a jury will deny people from getting a fair trial.”

Jury Duty, Deliberation, and Citizenship

At The Atlantic, Andrew Guthrie Ferguson writes about the value of jury duty:

A jury summons is an invitation to participation. Jurors are asked to involve themselves in some of the most personal, sensational, and terrifying events in a community. It is real life, usually real tragedy, played out in court. Jurors confront disturbing facts, bloody images, or heart-wrenching testimony. A jury may have to decide whether a man lives or dies, or whether a multimillion-dollar company goes bankrupt. A jury will have to pass judgment in a way that will have real-world effects on both parties before the court. This active role was not accidental. Participation in jury service teaches the skills required for democratic self-government. Being a juror lets you develop the habits and skills of citizenship.

What are these "democracy" skills? Think about what is required for a politically active nation. As a juror, you are asked to "vote" based on contested facts. You must debate issues framed by contesting parties. This involves listening to others and tolerating dissenting views (as well as expressing your own opinions). Jurors necessarily expand their social interaction with different types of people, broadening perspectives, contacts, and sources of information. To apply the law jurors must understand the law, the rights of the parties, and the legal rules guiding the decision. Each of these participatory skills--deliberation, debate, tolerance, cooperation, civility, legal decision making--is what we need for a democracy to work. The participatory aspect of jury duty shapes our constitutional character. Those habits and skills, our civic education, helps define who we are as Americans.

Or, as another example, take the value of deliberation. In the very first sentence of The Federalist Papers, a collection of essays and arguments in favor of the U.S. Constitution, Alexander Hamilton invited Americans to this different way of deciding, "You are called upon to deliberate on a new Constitution," he wrote (emphasis added). It was a call that perfectly fits the thinking of a democracy. Deliberation involves collective decision making--a willingness to think together using reason and informed discussion to come to a final decision.

Why is deliberation important? Because the process of deliberating--of sitting down and hashing out a problem with others--creates better thinkers and better decisions. As thinkers you become invested, informed, and connected. Such dynamic thinking forces you to consider different ideas and reason your way to a final decision. Through the process of deliberation, jurors are made aware of different viewpoints, sometimes even new worlds, as they are asked to judge life choices, industries, and realities that they may never have encountered before. Through jury instructions, jurors necessarily inform themselves about the legal system and the legal rules at play. Throughout the trial process, jurors develop the social mores necessary for success in other group activities. After all, if you can work with twelve people to agree on a verdict, you might be able to work together in a democracy.

Jury Duty

Previous posts (including a first-hand account of my own experience) have discussed jury duty.  Andrew Guthrie Ferguson has a new book on the subject, from NYU Press:

It’s easy to forget how important the jury really is to America. The right to be a juror is one of the fundamental rights guaranteed to all eligible citizens. The right to trial by jury helped spark the American Revolution, was quickly adopted at the Constitutional Convention, and is the only right that appears in both the Constitution and the Bill of Rights. But for most of us, a jury summons is an unwelcome inconvenience. Who has time for jury duty? We have things to do.

In Why Jury Duty Matters, Andrew Guthrie Ferguson reminds us that whether we like it or not, we are all constitutional actors. Jury duty provides an opportunity to reflect on that constitutional responsibility. Combining American history, constitutional law, and personal experience, the book engages citizens in the deeper meaning of jury service. Interweaving constitutional principles into the actual jury experience, this book is a handbook for those Americans who want to enrich the jury experience. It seeks to reconnect ordinary citizens to the constitutional character of a nation by focusing on the important, and largely ignored, democratic lessons of the jury. 

Jury duty is a shared American tradition. It connects people across class and race, creates habits of focus and purpose, and teaches values of participation, equality, and deliberation. We know that juries are important for courts, but we don’t know that jury service is important for democracy. This book inspires us to re-examine the jury experience and act on the constitutional principles that guide our country before, during, and after jury service.

At the NYU Press blog, Pete Hahn reflects on his own experience.  He was previously reluctant to serve.

This year, I was called again, and things were different.  First of all, the commissioner of jurors and the welcoming judge both made speeches that acknowledged that everyone in the room just wanted to get out of it … but also explained why it was so important.  What stuck with me was not the concept of “civic duty,” but the idea of jury service as public service.  This country really does not ask much of its citizens:  you do not have to vote, you do not have to worship, you do not have to serve in the military… all that is really asked of us is that we obey the law, pay our taxes, and, when summoned, appear for jury duty.  Not much to ask for all of the freedoms we enjoy.
...
Regardless of what that verdict is, when you, the Jury, file back into the courtroom to read the verdict to the defendant, judge, and attorneys, it is impossible not to feel the weight of the situation, impossible not to wonder whether you “got it right.”   What you realize at that moment is that this is how the system is supposed to work.  The judge doesn’t get to decide.  The D.A. doesn’t decide.  The jury decides whether the prosecution proved their case.  The defendant is presumed innocent until and unless the prosecution meets that burden of proof.  And twelve ordinary citizens got to make that decision.  And the awesome responsibility of being part of that decision, watching justice in action, being part of a system that works – I realize that serving on a jury is a privilege, not a duty.  If people only knew about this part of the process, we would have a line of citizens trying to get chosen, instead of trying to get excused.  I’m just sorry that I have to wait six more years for my next summons.

The Candidates and the Constitution

In The Constitution on the Campaign Trail, Andrew Busch finds a limited resurgence in constitutional rhetoric in recent campaigns, reflecting concern with judicial issues, rights, and federalism. Since the book's publication, the tea party movement has further increased the prominence of such rhetoric. And last night, the GOP presidential candidates discussed constitutional issues in a televised forum. Joy Lin writes at Fox News:

Six presidential candidates participated in Mike Huckabee's presidential forum in New York City Saturday, fielding questions from three Republican attorneys general - Pam Bondi of Florida, Ken Cuccinelli of Virginia, and Scott Pruitt of Oklahoma.

Newt Gingrich, who in a Des Moines Register Poll out Saturday has taken the lead in Iowa at 25 percent support, defended his proposal for determining which illegal immigrants should be able to stay in the United States. Bondi expressed concerns that neighborhood boards would undermine the rule of law, especially when neighbors and friends would be determining their fate.

"That is what we do in a jury trial," said Gingrich. "That's the whole point. That's why the founding fathers who distrusted judges insisted on juries. Because ultimately, in a free society, the citizens have to bear responsibility for their own culture and their own society. And ultimately, they are -- I believe they are -- more trustworthy. If you ask me would I trust a jury or a Washington bureaucrat, I would rather have my fate decided by a jury of my peers than have my fate decided by a Washington bureaucrat."

Liberals, Academics, and Jury Selection

During jury selection, attorneys for each side try to strike jurors who would be unsympathetic. Inside Higher Ed reports:

Whether professors lean left or are so liberal that they are biased is much debated in higher education and in American society. But in what may be a new twist, the Nevada Supreme Court last week upheld the exclusion of a faculty member from a jury. His disqualifying trait? Being a professor.

The ruling came in an appeal of a drug sale conviction in a case in which a professor was rejected for jury service. The professor was one of the peremptory challenges by the prosecution. While no reason needs to be given for peremptory challenges, in this case, the defense argued that minority citizens were being excluded with peremptory challenges. (The professor is identified in the court documents as a Middle Eastern computer science professor.)

The prosecutor then defended the exclusion by saying that it had nothing to do with the potential juror's ethnicity, but rather with his being a professor. "Professors are notoriously liberal," the prosecutor said, according to the Supreme Court ruling, adding that "I just don’t like them on my juries, period."

The Nevada Supreme Court's decision doesn't explore the issue of whether professors can be presumed to be liberal. Rather, it faults the defense for failing to challenge the exclusion sufficiently at the time it was made, or for presenting new evidence that the argument was pretextual or otherwise illegitimate.

Gregory Brown, president of the Nevada Faculty Alliance (the statewide affiliate of the American Association of University Professors), said he was sorry to hear a prosecutor make blanket assumptions about faculty members. He said that, despite the stereotypes about faculty members, most of them teach in career-oriented fields (business, health professions and so forth) and that they have a range of political views. It's wrong to presume them liberal "just like we wouldn't make snap assumptions about prosecutors," he said.

The data show that college professors are more liberal than the population as a whole. Campaign contribution data show that they favor Democrats. But as one source for the article notes, this tendency does not apply equally to every field:

Neil Gross, an associate professor of sociology at the University of British Columbia who has worked on numerous studies of faculty politics, said that while he is not an expert on the legal issues, he found the case surprising. "The social science data show that computer science professors are among the least liberal of all academics," he said. "This raises the question of why the defense did not object to the challenge as pretextual right from the start."

The Bible and the Burden of Proof

In The Wall Street Journal, Alan Dershowitz uses the Anthony case as an occasion to explain the origins of the "reasonable doubt" standard in criminal cases:

Even if it is "likely" or "probable" that a defendant committed the murder, he must be acquitted, because neither likely nor probable satisfies the daunting standard of proof beyond a reasonable doubt. Accordingly, a legally proper result—acquittal in such a case—may not be the same as a morally just result. In such a case, justice has not been done to the victim, but the law has prevailed.

For thousands of years, Western society has insisted that it is better for 10 guilty defendants to go free than for one innocent defendant to be wrongly convicted. This daunting standard finds its roots in the biblical story of Abraham's argument with God about the sinners of Sodom.

Abraham admonishes God for planning to sweep away the innocent along with the guilty and asks Him whether it would be right to condemn the sinners of Sodom if there were 10 or more righteous people among them. God agrees and reassures Abraham that he would spare the city if there were 10 righteous. From this compelling account, the legal standard has emerged.

In a 1997 article in the University of Pennsylvania Law Review, Alexander Volokh took a wry view of the subject:

Abraham's celebrated haggle from the book of Genesis, allegedly written by Moses but also attributed to God, 25 provisionally sets a value of n = (P - 10) / 10, where P is the population of Sodom. 26 However, as it turns out, no innocents were killed in the destruction of Sodom; there were only four righteous people in the city, and they were all saved, though they lost their real estate. 27 Earlier, 28 God had killed the entire population of the earth for its wickedness 29 except for Noah and his family, 30 in a mass capital punishment which, though carried out without benefit of jury or other due process protections, apparently also produced no false positives or false negatives. It is also said that one day, there will be a massive post-capital punishment, which will also produce no false positives or false negatives. 31 These anecdotes, however, may only be meant to explain criminal procedure for God Himself, Who can do whatever He likes.

Commandments for man can be found in the book of Exodus, by the same Author(s), where God rejects the tradeoff between convicting the guilty and convicting the innocent, and simply commands, "the innocent and righteous slay thou not." 32 One can take this to imply an infinite value of n, at least in capital cases. The twelfth-century Judeo-Spanish legal theorist Moses Maimonides, however, interpreted the commandment of Exodus as implying a value of n = 1000 for execution. 33 He refers to it as the "290th Negative Commandment" and argues that executing an accused criminal on anything less than absolute certainty would lead to a slippery slope of decreasing burdens of proof, until we would be convicting merely "according to the judge's caprice. Hence the Exalted One has shut this door" 34 against the use of presumptive evidence, for "it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent man to death once in a way." 35

25. Capitalization of "god" refers to a Hebrew god named "Yahweh."

26. "I will not destroy it for ten's sake," Genesis 18:32, implies, "Better P - 10 guilty men escape than 10 righteous men be killed," or, dividing both quantities by 10, "Better (P - 10) / 10 guilty men escape than 1 righteous man be killed."

27. "And when the morning arose, then the angels hastened Lot, saying, Arise, take thy wife, and thy two daughters, which are here; lest thou be consumed in the iniquity of the city." Genesis 19:15. Note, however, that while Lot lost his real estate, he did acquire condiments. "His wife looked back from behind him, and she became a pillar of salt." Genesis 19:26.

28. Genesis 6-7.

29. "And God saw that the wickedness of man was great in the earth, and that every imagination of the thoughts of his heart was only evil continually." Genesis 6:5. "And God looked upon the earth, and, behold, it was corrupt; for all flesh had corrupted his way upon the earth." Genesis 6:12.

30. "But Noah found grace in the eyes of the Lord." Genesis 6:8. "But with thee will I establish my covenant; and thou shalt come into the ark, thou, and thy sons, and thy wife, and thy sons' wives with thee." Genesis6:18.

31. "If anyone is destined for captivity, to captivity he goes." Revelation 13:10 (New American Standard). "And whosoever was not found written in the book of life was cast into the lake of fire." Revelation 20:15.

32. "Keep thee far from a false matter; and the innocent and righteous slay thou not: for I will not justify the wicked." Exodus 23:7.

33. Students of statutory and Constitutional interpretation will recognize the Maimonidean leap. The number 1000, no doubt, emanates from a penumbra of Exodus 23:7.

34. 2 Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).

35. Id. This statement is, of course, consistent with an infinite value of n.

Reasonable Doubt and Presumption of Innocence

After the verdict in the Anthony case, many commentators have criticized the jury. Consider, however, the rules that a jury must follow. In the state of Florida, the standard final instructions to a jury include the following:

The defendant has entered a plea of not guilty. This means you must presume or believe the defendant is innocent. The presumption stays with the defendant as to each material allegation in the [information] [indictment] through each stage of the trial unless it has been overcome by the evidence to the exclusion of and beyond a reasonable doubt.

To overcome the defendant's presumption of innocence the State has the burden of proving the crime with which the defendant is charged was committed and the defendant is the person who committed the crime.

The defendant is not required to present evidence or prove anything.

Whenever the words “reasonable doubt” are used you must consider the following:

A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if, after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find the defendant not guilty because the doubt is reasonable.

A defendant may request the following instructions:

The constitution requires the State to prove its accusations against the defendant. It is not necessary for the defendant to disprove anything. Nor is the defendant required to prove [his] [her] innocence. It is up to the State to prove the defendant's guilt by evidence.

The defendant exercised a fundamental right by choosing not to be a witness in this case. You must not view this as an admission of guilt or be influenced in any way by [his] [her] decision. No juror should ever be concerned that the defendant did or did not take the witness stand to give testimony in the case

As for this case, you may see and hear portions of the instructions:

Serving on a Jury

In Democracy in America, Tocqueville wrote:

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.

A Trial and an Oath

Yesterday, a federal jury found former Illinois governor Rod Blagojevich guilty of a single corruption count and deadlocked on the other 23. Earlier, the Chicago Sun-Times reported:

The courthouse is abuzz with questions after this morning's hearing. The jury's note indicates the panel is close to returning a verdict -- but how close? It's likely the jury is split and tempers are frayed -- but how split? How frayed?

Their request for a copy of the juror oath, especially, paints an interesting picture of what's going on behind those jury room doors.

That request -- coupled with their other question, about how to write a split vote on a verdict form -- could indicate that the group has reached an all-new level of infighting, that one camp is trying to show another camp that they aren't upholding their promise to "well and truly try" to reach a verdict.

The question may be, how long will they drag out that fight?

And so we wait. In the meantime, here's the text of that oath given to jurors in criminal cases -- the text given to the jury earlier:

"Do each of you solemnly swear (or affirm) that you will well and truly try, and true deliverance make, in the case now on trial and render a true verdict according to the law and the evidence, so help you God?"

The Chicago Daily Herald explained the significance of the request by citing a murder case:

More than two decades ago, DuPage County State's Attorney Joe Birkett found himself playing a similar guessing game when faced with the same jury request in a murder trial of an 11-year-old girl.... Members continued deliberating into a third day when they asked the judge to provide them with a typed copy of their oath.

"As it turns out, one of the jurors said she heard a voice or saw a vision in her sleep that told her she could not sit in judgment of her fellow man," said Birkett, who still gets a Christmas card each year from Taneka's mother. "The other jurors were very frustrated, and, after getting a copy of the oath, reminded her she swore to God to do her best to sign a verdict."

Birkett said the jury returned to the courtroom within a half-hour with a signed verdict form - guilty. Jordan later received an 80-year prison term.

Birkett said in his case, as with Blagojevich, such requests by jurors to review their oath usually signals there are holdouts on the jury.

President Obama on Jury Duty?

As we explain in the chapter on the judiciary, trial by jury is an important principle of the nation's legal system. Jury duty is also a key obligation of citizenship. A reminder comes from The Chicago Sun-Times:

To serve or not to serve? Is that the question?

• Translation: TV titan Oprah Winfrey may have honored her Cook County Circuit Court Jury summons, but it's a good bet President Obama won't.

• To wit: Sneed has learned Obama's name has popped up on a list for jury duty at the southwest suburban courthouse in Bridgeview on Monday, but it's a safe bet POTUS won't show up 'cuz he has . . .

. . . better things to do.

. . . the nation to worry about.

. . . the economy to fix.

. . . health-care bill to rework.

"The president won't be expected to show up, but I'm sure he has already received his summons and responded," a top court source said. "The jury summons contains his Kenwood address and is for a jury trial on Monday."

The president has a legitimate excuse, but in most cases, citizens must show up when they get the summons. The rich and powerful are not exempt. In 2004, Oprah Winfrey served on a jury in a murder trial. (The verdict: guilty.) Other celebrities from politics and the arts have also served.

Jury service leaves most participants feeling proud and better informed. Tocqueville explained that the deliberative process enhances civic virtue:

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.

I do not know whether a jury is useful to the litigants, but I am sure it is very good for those who have to decide the case. I regard it as one of the most effective means of popular education at society’s disposal.