State Bar of Wisconsin

Vol. 70, No. 6, June 1997

President's Perspective

The Jury - Down But Not Out

"Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds."

- John Adams
of Massachusetts (1774)

By David A. Saichek

Enemies of civil liberties will always disparage our heritage of trial by jury. Those who would weaken the right of trial by jury are in two categories:

• Purveyors of propaganda. These people are capable of understanding the Constitution but they rail against it because it affects the predictability of their bottom line ("runaway juries") or they cannot accept that the least powerful of citizens are entitled to the same rights as the mighty ("criminals get off on technicalities").
  
  
• Poorly educated or apathetic citizens. These are people who enable the propagandists to poison the attitudes of potential jurors.

Both civil and criminal lawyers can see the damage done. We are discouraged by the ascendency of hardened attitudes and indifference to personal rights and suffering.

We must not despair. Shame on us if we fail to persevere in our defense of freedom and justice. To use a contemporary phrase, we want to encourage citizens to "buy in" to our constitutional form of government established by the founders. If it involves "marketing" techniques, so be it. Foes of the system have not hesitated to use their own marketing resources.

When democracy is your goal it is not quite so important that the juries be unfailingly reliable and efficient. Nobody seems to question free elections although they do not always result in the best possible public policies. The purpose of marketing the ideas of justice in a free nation are succinctly put by Henry Louis Gates Jr.: "As a symbol of popular and local sovereignty, citizen juries confer legitimacy upon the most invasive thing a state can do: strip a person of life, liberty or property. By interposing itself between crime and punishment, the citizen jury - when it works as it was intended to - makes the state's actions something ordinary people feel they own."¹

Both trial and appellate courts can help, suggests Gates, by backing off on the effort to turn juries into bodies of disinterested judgment. "Trying to turn a jury into a vehicle of efficient managerial justice is like converting a school bus into a racing car; it no longer serves its community purpose, and it won't break any speed records, either."²

There are quite a few ideas to be explored:

• Let jurors, even potential jurors, ask questions.
  
  
• Reduce or eliminate peremptory strikes.
  
  
• Eliminate complex instructions about the law.
  
  
• Emphasize that the jury should do what is right and just.
  
  
• Permit the jurors to write down consensus statements of their findings.
  
  
• Let the jurors know the effects of their findings, including who will win or lose.
  
  
• Accept evidence on the issue of fairness where it can be demonstrated that conviction and imprisonment are disproportionately inflicted against minorities.³
  
  
• Grant changes of venue in only the most extreme cases of prejudicial pretrial publicity.
  
  
• Give genuine answers to questions from the jury room, rather than simply repeating incomprehensible instructions.
  
  
• Let trial judges worry less about being "wrong" in their answers to jury questions.

In other words, "Put the citizen back into the citizen jury."

Nobody suggests that courts will change rapidly or with glee; but we must all be open to new ideas. Neither the people nor the system is served by refusal to reexamine long-held tenets intended to reduce bias but which may have "cleansed" the process to the point that only the most indifferent citizens survive jury selection.

Attacks on trial by jury are not likely to go away. But we can constantly remind the public what the jury system is for and what a free nation wants from it. We want to preserve the peace, punish offenders and enjoy a civil society. Serving as a juror should be a pleasant and participatory experience. It can be that way if lawyers and courts treat jurors with courtesy, friendliness, straight talk and respect.

Emphasizing the participation and legitimacy of citizen juries will go a long way toward restoring the American people's faith in our system of justice.

Endnotes

¹ Comment, The New Yorker, Feb. 24 and March 3, 1997, at 11, 12.

² Id. at 12.

³ Facts About the American Criminal Justice System, ABA, at 4, 6 (1997).

Wisconsin Lawyer