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.
"The jury system has come to stand for all we mean by English
Justice. The scrutiny of twelve honest jurors provides defendent and
plaintiff alike a safeguard from arbitrary perversion of the
law."
-- Sir Winston Churchill (1956)
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:
"I consider trial by jury as the only anchor ever yet imagined by
man, by which government can be held to the principles of the
constitution."
--Thomas Jefferson (1788)
- 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."
"It is essential that the right of trial by jury be scrupulously
safeguarded as a bulwark of civil liberty. Out duty to preserve the
Seventh Amendment is a matter of high constitutional
importance."
-- Justice Hugo Black (1939)
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
