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.

What Makes a Good Citizen?

John Gramlich at Pew:

In a Pew Research Center survey in early 2018, around three-quarters of Americans (74%) said voting in elections was very important to what it means to be a good citizen, and around seven-in-ten said the same about paying taxes (71%) and always following the law (69%). But Democrats and Republicans – as well as younger and older adults – didn’t see eye to eye on all the traits and behaviors associated with good citizenship.

In addition to voting, paying taxes and following the law, a majority of Americans said several other traits were very important to good citizenship, including serving on a jury if called (61%); respecting the opinions of others who disagree (61%); and participating in the U.S. census every decade (60%). (The survey was conducted before the Commerce Department announced it would add a question about citizenship to the 2020 census – a decision blocked by the Supreme Court last week.)

Smaller shares said it was very important to good citizenship for Americans to volunteer to help others (52%), know the Pledge of Allegiance (50%), follow what happens in government and politics (49%) and protest when government actions are believed to be wrong (45%).

And although there will be plenty of them out on July Fourth, displaying the American flag ranked at the bottom of the list: A little over a third of U.S. adults (36%) viewed this as very important to good citizenship, though an additional 26% said it was somewhat important.

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.”

Civic Duties

At The Atlantic, Andrew Guthrie Ferguson writes:

Every spring, commencement speeches echo across college campuses, calling upon students to engage the world. Speakers will invariably haul out terms like "civic engagement" and "global citizenship." Lost in the inspiring rhetoric are the less glamorous, yet arguably more vital, daily forms of civic participation. Such soaring words often obscure the fact that our basic civic duties, voting, jury service, electoral office - the three core constitutional requirements of citizenship - are being ignored in favor of grand plans to "follow your passion" and "change the world."
...

Civic responsibility is the rub of citizenship. As President Obama candidly acknowledged in his commencement address to Ohio State University this month, borrowing themes from John F. Kennedy's famous inaugural, "As citizens, we understand that it's not about what America can do for us. It's about what can be done by us, together, through the hard and frustrating but absolutely necessary work of self-government." It is not about changing the world in a boundless future, but engaging constitutional responsibilities in the grounded present.

The political responsibilities of voting, jury service, and participating in elective office are the basics of our constitutional order. If we are inspired by anything at graduations, we should be inspired to participate in these fundamental, if ordinary, constitutional duties.

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.

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 Simple Story of Civic Duty

The main point of our book is that there is more to public life than self-interest. Many people shirk civic duty, of course, but many others accept it even when it would be in their interest to do otherwise. The Orange County Register offers an example:

Walking to his car during his tour of duty as a juror, financial consultant Rick Keller pondered his predicament.

It was January 2009. The nation was in the worst financial mess since the Great Depression. Keller's clients, some of the wealthiest people in Orange County, had lost millions in a matter of weeks. And in 10 days he was scheduled to hold his annual luncheon with 250 of those very same clients.

But facing a crowd of angry investors wasn't what was bothering Keller, head of the then-named Keller Group, which had more than a billion dollars on the line.

It was the prospect of not seeing his investors face to face. The judge had just instructed the jury the civil trial would last another two weeks.

Keller, tall, lanky, with the runner's body he had in high school nearly four decades earlier, considered his conflict. Should he ask to be excused – something he could probably pull off – or should he fulfill what he considered a civic obligation?

....

Keller stuck with the trial, never asking to be excused from his civic duty. He wound up being foreman, in fact. Sure, there was much debate among his colleagues. But everyone's moved on. The next meeting is just around the corner.

Jury Duty

Serving on juries is an important duty of citizenship. But in Los Angeles County, it is increasingly difficult to find jurors. The Los Angeles Times reports:

In this time of double-digit unemployment and shrinking benefits for those who do have jobs, courts are finding it more difficult to seat juries for trials running more than a day or two. And in extreme cases, reluctance has escalated into rebellion, experts say ... Money woes inflicted by the recession have spurred more hardship claims, especially by those called for long cases, say jury consultants and courtroom administrators. More than a quarter of all qualified jurors were released on hardship grounds last year, according to court statistics. And judges say they have seen more people request such dismissals in the last year.

...

"The economic situation has really put attorneys and judges in an awkward position of having to say to someone who is the sole wage earner in a family or someone who is self-employed and doesn't get paid when they don't work that they have to serve, and we have more and more of those," said Jaine E. Fraser, a psychologist and jury consultant who sat in for the asbestos jury selection before the parties settled.

People on the margins of society tend to be more sympathetic with victims bringing suit, and excluding them on hardship grounds can disadvantage plaintiffs, Fraser said. But it's also risky, she noted, to force people into jury service that will cut deeply into their paychecks.

In Michigan, law student Phillip Ellison faced the dilemma of doing jury duty and forfeiting a semester's tuition (the law school would not excuse his absence) or shirking duty and facing contempt of court charges. He managed to defer the duty to winter break but meanwhile found an oddity in the law. High school students could postpone their service until the end of school year but postsecondary students could not. The Kalamazoo Gazette reports:

So Ellison wrote a letter to his area legislators and members of the Michigan House Judiciary Committee about his situation and proposed a solution to allow college students to defer their jury service. He also asked that colleges and universities be prohibited from retaliating or “punishing” students for serving on jury duty.

“I was called by Tonya Schuitmaker (the Republican representative from Lawton), who said, ‘Wow, great idea. We never heard of this before,’” Ellison said “I did talk to Mark Meadows’ (the Democratic representative from East Lansing) staff.

“The next thing I hear is a bill’s coming out to do absolutely what I asked them to do.”

Meadows announced last week the introduction of a bill to allow full-time college students to postpone serving as jurors while they are taking classes.