Vol. 77, No. 5, May
2004
Year of the Jury Trial
With increased public focus on the American jury system, it is
important to eschew evaluation by anecdote, and to remember the
fundamental principles on which this basic right is founded.
by George Burnett
Incoming American Bar Association president Robert Gray
has declared his term as the Year of the Jury Trial. Several months ago
a front page story in the New York Times commented on the
marked decline in the number of civil jury trials over the last four
decades. Commenting on landmark research by University of Wisconsin law
professor Marc Galanter, the Times noted that in 1962, 11.5
percent of all civil cases in federal court were tried to a jury. By
2002, that number had dropped to 1.8 percent. In raw numbers, federal
civil jury trials dropped from a peak in 1985 of more than 12,500 to
slightly more than 4,500 tried last year. Research continues for an
explanation of this trend, which Harvard law professor Arthur Miller
calls a "cultural shift of enormous significance." Theoretical
explanations for this trend include the rise of mediation and
arbitration, the introduction of civil discovery rules that provide
litigants fuller information in advance of trial, and the increasing
complexity and expense of litigation.
At the same time, there has been an increasing focus in recent years
on the efficacy of trial by jury. News reports have been replete with
anecdotes about criminal convictions reversed as DNA evidence exonerates
the innocent. Celebrity trials focus almost as much on jurors and their
deliberations as they do on the evidence and trial itself. There is
something unsettling about jurors appearing on morning talk shows a day
or two after a verdict is decided to discuss their deliberations and
assessment of evidence. There is something disconcerting about efforts
to investigate jurors after an adverse verdict by scrutinizing voir dire
disclosures and seeking out potential juror misconduct.
These developments undermine public confidence in the jury system in
times when the civil jury trial is under careful scrutiny and when the
right to a jury trial is invoked less often.
There is a special danger in evaluating this time-honored institution
by anecdote, much less by recent anecdote. The jury is central to the
judicial branch of government and it is important to remember the
principles on which our judicial system was founded. Our founders
recognized the importance of preserving the right inherited from our
English forebears.
For example, Thomas Jefferson said:
"I consider trial by jury as the only anchor ever yet imagined by
man, by which a government can be held to the principles of its
constitution."
His Federalist opponent, John Adams, wrote in agreement, albeit with
a bit more color:
"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."
Alexis de Tocqueville noted that the American jury safeguarded the
citizenry from arbitrary government power:
"All of the privileges of a complete and free society are guaranteed
and reinforced by the fact that all citizens have a right, no matter who
their opposition, to have their rights heard before a jury of their
peers. This secures to America its unique form of democratic government
and the freedoms that abound."
Abraham Lincoln described the value of the jury with characteristic
brevity:
"Why should there not be a patient confidence in the inherent justice
of the people. Is there any better or equal hope in the world?"
The judicial branch of government is the one place where citizens may
directly address their government. There is no right to speak with
members of the executive or legislative branch and if a citizen's
communication reaches them, there is no requirement that they listen.
The judicial branch is different because there, litigants have an
absolute right to directly address judge and jury and may fairly expect
that their words will be heard and considered.
Public focus on the American jury system will heighten, not lessen,
in coming months and years. When that occurs, let us remember the basic
principles on which this institution, which has functioned well for more
than 200 years, is founded.
Wisconsin Lawyer