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Trial by jury is probably the worst way to administer justice, except all the others

The presentation video plays on two screens

The Presentation Room, where jurors are instructed on their responsibilities in the Cambridge courthouse. The video plays on two screens. Photographs by Gary Wayne Gilbert

By Dennis Hale

The Cambridge District Court on Thorndike Street in East Cambridge is a corrugated 24-story box of a building with a jail, visible from the street, occupying its top floors. Taking up a city block, the courthouse looms over the neighborhood's triple-deckers and townhouses, offering one more reason to dislike the municipal architecture of the 1970s. But this fortress is where justice is undertaken in Middlesex County—and where several thousand citizens present themselves for jury duty every year.

These days, all who have business before the court enter through a single public entrance and join lines at metal detectors (except for the attorneys, who get to skip the security routine). Once past inspection, the people who will judge and the people who will be judged ride the same elevators to their different fates: Defendants and litigants go to the courtrooms on the upper floors. Prospective jurors go to a waiting room on the fifth floor, where they sit on folding chairs under fluorescent lights. From there they are ushered into another room to listen to the Presentation, which sets out their duties and the noble role that jury service has played in the life of the Republic.

In less harried times, jurors received this instruction directly from judges. Here, for example, is Supreme Court Justice Joseph Story, then of the Federal Circuit in Portland, Maine, addressing a grand jury in 1820:

You are to inquire with diligence, and to make true and faithful presentments, unaffected by any motives, but those which should influence conscientious and rational minds. You are to inquire without fear, favor, affection, or hope of reward, on the one side; and without the prejudices arising from hatred, envy, or malice, on the other. I am sure, that I need hardly press upon your attention the solemnity, dignity, and importance of your office.

These days, however, the Presentation is usually delivered by a television set. In Massachusetts, jurors watch a 15-minute video featuring Chief Justice Margaret Marshall.

The courthouse, viewed from Centanni Way

The courthouse, viewed from Centanni Way

On the winter day when I visited the courthouse, about 120 citizens were scheduled for jury duty in Courtroom 7B. (The building holds 21 courtrooms.) The first trial on the docket was a civil case in which a fertility clinic was charged with breach of contract for helping a client conceive a second child, allegedly without her husband's consent. The father, now divorced, was seeking $3 million in damages. The trial was to begin on the following day and was expected to last for two weeks. Under Massachusetts's "one day, one trial" law, jurors rejected for this case would be sent back to the waiting room to be available for another. At the end of the day, unless they had been picked for a trial, their obligation for the next three years would be deemed met.

An unexpected delay in the proceedings had kept the jurors trapped in the waiting room for two hours, and when they filed into Courtroom 7B it was clear they weren't happy. Taking seats on the visitors' benches or left to crowd against the back wall, they did not smile or chat but stared into the middle distance like travelers stranded in an airline terminal during a blizzard. I wondered which of them I would want on my jury if I were in trouble with the law. How about that big scowling guy leaning against the wall? Or the young woman sitting on the edge of her seat, tapping her feet and frowning?

Unfortunately for jurors, the process of jury selection is slow. But among lawyers, politicians, and legal scholars, there are other, more serious complaints leveled against the jury system: that ordinary people are often incapable of understanding society's increasingly complex, technology-bound cases; that juror bias is inevitable and that attorneys have learned to manipulate jury selection, not to combat bias but to exploit it; that when juries do render sensible judgments, their performance is no better than that of a single judge acting alone. Harry Kalven, Jr., and Hans Zeisel, in their pioneering study of jury decision-making, The American Jury (1966), found that judges and jurors agreed about 80 percent of the time in personal injury cases. If that figure is generally accurate, critics ask, what is the point of having civil juries at all? Why not skip all the time-consuming folderol and go straight to a judge?

GOING STRAIGHT to the judge is what most countries do, even in criminal cases. The United States is now the only country in the world where trial by jury is still an important part of the legal order. Great Britain has all but abolished jury trials in civil cases over the past 40 years, and it reserves the criminal jury for offenses that carry long prison terms. Canada's Charter of Rights and Freedoms guarantees citizens the right to a jury in criminal trials, but the Canadian Parliament has restricted that right to crimes that carry prison terms of five years or more; juries for civil litigation are rare. Elsewhere in the English-speaking world, either jury trials are no longer available or their use has been severely restricted by statute. Outside the English-speaking world, juries have never been important. In most countries, trials are conducted by judge magistrates, who, acting alone, achieve conviction rates that approach perfection: 99.9 percent in Japan, for example, and 95 percent in France. (The record is probably held by the Soviet Union, where magistrates convicted 99.95 percent of those who came before them on charges.)

Which leaves the United States as the undisputed champion of the jury trial, even though only about 3 percent of all criminal convictions and 2 percent of civil judgments are returned by juries (the rest are decided by judges or through plea bargains). Still, we impanel a lot of juries—about 32,000 for criminal cases and 14,000 for civil cases—and summon a lot of jurors: some 5 million citizens each year (although in some cities only 10 percent of those called actually show up). Juries render verdicts in cases ranging from criminal offenses carrying the death penalty to garden-variety contract and property disputes to highly technical civil litigation. And because trial by jury is a constitutional right, the possibility of a jury trial figures in the strategy of everyone who goes to court, influencing even cases in which juries are never called, by spurring many litigants toward settlement. In a sense, the jury is a bit like the shotgun behind the door; if everyone knows it's there, it might not have to be used.

The case for amateur judging has not been helped by such high-profile events as the trials of O.J. Simpson in 1995 and 1997 and the McDonald's "hot coffee" litigation in 1994. Simpson was acquitted of the murders of Nicole Brown Simpson and Ronald Goldman by a criminal jury in 1995, but two years later a civil jury found him liable for Goldman's death and for battery on Nicole. The jury in the McDonald's case awarded $2.7 million to a plaintiff who scalded herself with a cup of very hot coffee. In these and other cases, juries returned verdicts that were widely (though not universally) regarded as flawed, even absurd. Many Americans (though not most black Americans) believe that Simpson was guilty of murder, and that the jury in his criminal trial had been unduly swayed by the memory of police misconduct in other cases involving black defendants. The McDonald's jury seemed to have articulated an absurdly generous definition of "corporate negligence," apparently absolving the plaintiff of any responsibility for her own welfare. Doubts about jury verdicts have consequences: After the Simpson trial, and for the first time ever, a (bare) majority of Americans supported the proposition that trial by jury should be abolished.

It would take a lot more than a shift in public opinion or even a legislative majority to get rid of jury trial in this country. Civil and criminal juries are protected by the federal Constitution, which may be why U.S. juries have not gone the way of Canada's and Britain's. Contention over the system is likely to continue, however, as more trials are conducted in the full glare of television, where every blemish is revealed for all to see.

Jury waiting room

Jury waiting room

IT MIGHT BE a mistake to read much into the lusterless appearance of the Cambridge District Courthouse. Democracy ain't fancy, and most Americans would probably choose a plain county courthouse in the United States over a French palais, where magistrates can convict people without any help from mere citizens. But it is hard not to receive a subliminal message from the drab surroundings and the impersonal video instruction: the message that jury duty isn't important enough to justify expenditures on amenities, or the personal attention of court officers.

The courtroom itself, while clean and well kept, continues the utilitarian theme of the building's exterior. It is a circular room with a translucent ceiling through which fluorescent bulbs deliver just enough light to read by. Sixteen padded, blue vinyl chairs—the only color aside from the national and state flags pushed against the back wall—are lined up behind a railing on one side; opposite them, across the room, eight identical chairs are set aside for guests of the court. Eight rows of wooden benches fill up the center rear, for members of the general public who wish to observe, or, now, for jurors waiting to be examined. The court's business takes place on the other side of a wooden railing—the "bar," literally—which runs nearly the full width of the room, separating the officers of the court from the general public. The clerk of the court sits behind a slightly raised desk furnished with a computer, and behind him, raised still higher, is the wide wooden bench for the judge—on this day, the Honorable Julian T. Houston. A witness box is to the judge's right, and to his left are a table and chairs for the judge's law clerk and the court reporter. Two uniformed court officers stand nearby.

Except for the flags, there are no adornments: no state seal, no photographs of the governor or of eminent jurists, no classical columns, no murals depicting great moments in the history of jurisprudence—nothing to suggest either the majesty of the law or the special qualities of the Republic in whose name the law will be executed. The room seems a little like a high school auditorium.

Once all 120 jurors were present, there was a fair amount of paper shuffling and whispered conferencing among the attorneys, and consultations between the clerk and the uniformed officers. Then the clerk commanded, "All rise for His Honor, Judge Julian Houston," and up we all went.

Judge Houston emerged from his quarters on the other side of the back wall, stepping up to the bench and standing at attention while the courtroom came to order. (Judge Houston and his chief clerk, Arthur Sutherland, constituted two-thirds of the black population of Courtroom 7B—the final third being a juror sitting in the crowd on the other side of the bar.) Houston managed the trick of being formal yet friendly. Nothing in his demeanor suggested that he was eager to punish, yet he clearly possessed authority and intended to exercise it. When he did so—as later in the proceedings, when he excused some citizens from jury duty while refusing to excuse others—he spoke crisply, without apology and without rancor.

The judge's first order of business, after telling us to take our seats, was to greet the jurors and administer an oath, requiring them to swear to give "true answers to all questions put to me by the court, so help me God." This was the first note of gravity (and the first mention of God), and it seemed to have an effect on at least some of the jurors. The slouchers sat up straight, the fidgeters stopped fidgeting, and people who had been staring into the middle distance, as if in a trance, now fixed their gaze on the judge.

Judge Houston briefly—but very slowly, almost as if speaking to children—summarized the nature of the case, and the parties were introduced by name and city of residence: plaintiffs, defendants, attorneys, and a long list of expert witnesses. Then the judge began the lengthy process of voir dire, an old French legal term meaning, roughly, "to speak truly"—a process meant to discover who among the jurors summoned will speak the truth once sworn, weeding out those who might be biased or otherwise incapable of rendering a verdict "according to the evidence."

In the early years of this country, bias was a relatively simple matter: A juror was considered biased only if he had a personal connection to one of the parties, or stood to profit in some way from the outcome of the trial. Today, however, the concept has expanded to include, more generally, opinions and attitudes, with advanced thinkers in and out of law schools arguing that objective judgment is a myth. Jurors, some now insist, merely channel the social perspectives of their class, race, or ethnic group. Voir dire has thus become in many courtrooms a winnowing process of the most ruthless kind.

Attorneys used to make selections based on intuition and the kind of folklore lawyers pass around in their spare time. Nowadays, they often prepare questionnaires for jurors to fill out in the waiting room, or even before they come to court—a task in which they are sometimes aided by jury consulting firms. The questionnaire in the O.J. Simpson case was 75 pages long and contained more than 300 questions.

Courtroom 7B

Courtroom 7B

The 15 questions in Courtroom 7B were mostly predictable: Do you or any family members have a financial interest in the outcome? Have you already formed an opinion? Some probed the jurors' connections to and experiences with health care: Are you a doctor, or do you have a doctor in your family? Have you ever used the services of a fertility clinic, and if so, were you satisfied? Have you ever brought a lawsuit against a doctor or health care facility? One question touched on a political controversy: Are you a member of a tort reform organization? (A juror who agreed with the reformers that many civil cases are either frivolous or extortionary would be an undesirable choice for the plaintiff in a case like this.) Another probed larger issues: Do you have a religious or ethical objection to in vitro fertilization? The very last question concerned what was probably on everyone's mind all along: Since the case might take up to two weeks, do you have a conflict that would make you "unable to sit"?

After each question, those answering yes held up yellow cards showing their juror number. The court officers read the numbers out loud, and they were recorded by the clerk and the court reporter, who repeated everything into a microphone that wrapped around her face like an oxygen mask. When all the questions had been asked and the answers recorded, the jurors were called in random sequence. If a juror had not answered yes to any of the questions, he or she was simply asked to take one of the 16 numbered blue seats reserved for the jury in this trial. Those who had answered yes to at least one question—and about two-thirds had, nearly half answering yes to the scheduling question—were examined more closely by the judge in a corner of the courtroom, one by one, with the attorneys present. If the judge was satisfied that a person's answer really did amount to a disqualification, the juror was excused "for cause" and escorted to the waiting room to face the possibility of an afternoon voir dire for a different trial. (Most of those excused were visibly relieved, and one even thanked God for her deliverance.) If the judge felt that a disqualification was not required, the person was told to take one of the numbered seats—a distinction that clearly came as an unpleasant shock to several.

The first eight people called were excused by Judge Houston, an indication that the process would take a long time. Since I was close enough to the corner to hear snatches of conversation, I was able to guess at the reasons for many of the dismissals: child care problems; elderly parents at home; medical conditions that made it difficult to sit for hours at a stretch; relatives in the health care business; language limitations. The only two elderly jurors were excused because of poor health. Excuses that did not work: loosely defined work difficulties; a final exam at Harvard; an important new medical internship; indispensability to an employer.

When a juror had a personal or family connection to the health care industry, the judge pressed the issue: Do you feel that you can be impartial in this case? This was the escape route for bad citizens: All who answered yes were told to take a seat; all who answered no were excused. If I can read smirks correctly, some jurors understood this very well.

As soon as 16 jurors were seated, the lawyers got their say, retiring to the corner with the judge and their notes. Now they could exercise their "peremptory" challenges, demanding that a juror be removed without having to name a cause. Jurors deemed acceptable by the judge might prove unacceptable to the attorneys, and indeed, the attorneys on both sides were considerably choosier, which meant that voir dire took four hours to complete. Each of the first 16 jurors seated was eventually replaced, and some of the seats were filled briefly by several different candidates. By the time the process was completed, in midafternoon, only 25 of the 120 original candidates remained in the courtroom. Twelve jurors and four alternates had been selected, leaving only nine jurors who were never called. The nine dutifully trooped back to the waiting room, though it was obvious that their day of obligation was rapidly coming to an end.

MANY OF THE controversies surrounding the jury system focus on the process of voir dire, and especially on the use of peremptory challenges. Are peremptories being used for intolerable ends? Do courts allow too many? (Each side in Judge Houston's case had 15, a matter controlled partly by statute and partly by the judge.) Peremptories have been used in the past to keep blacks and other minorities off juries, and some critics charge that they are still being used for this illicit purpose. In Great Britain, the Criminal Justice Act of 1988 abolished peremptories after a long history of complaints about all-white juries in criminal trials with black defendants. The late U.S. Supreme Court Justice Thurgood Marshall supported their abolition in this country, arguing in a concurring opinion in Batson v. Kentucky (1986) that "the inherent potential of peremptory challenges to . . . [permit] the exclusion of jurors on racial grounds should . . . lead the Court to ban them entirely from the criminal justice system." The Batson decision held that the intentional use of peremptories to exclude blacks was unconstitutional—but the distinction between intentional and frequent is sometimes hard to prove in court.

Many lawyers agree with the logic of Batson but are nevertheless reluctant to abandon peremptories, and since legislatures and courts are filled with lawyers, peremptories are probably here to stay. They give attorneys some control (or perhaps only the illusion of control) over the unpredictability of juries, and, with the right questions, increase the odds of avoiding the least desirable jurors and seating the friendlier ones. If your client has been charged with drunk driving, it helps to know and might matter that a juror's cousin was once injured by a drunk driver. Lawyers are also on the lookout for jurors who appear to be inflexible, bad-tempered, or arrogant. Such people are immune to evidence and argument, and voir dire is an opportunity to separate the "conscientious and rational," to borrow Judge Story's phrase, from those who, in his day, were known as "pudding-heads."

My guide to Courtroom 7B, an attorney with trial experience, pointed out several jurors who he predicted, correctly, would be challenged, including the medical intern whose important new job failed to get her excused by the judge—and whose body language and expression indicated that she was put out about serving. No one wants a juror who spends the entire trial trying to work out who is to blame for the great inconvenience of having to perform a civic duty.

SINCE THE LATE 18th century, if not earlier, legal observers have consistently identified two serious dangers of jury trials, and wherever juries have been abolished or curtailed, these have been the decisive points. Both dangers appear first during the voir dire, which is why so much attention is paid to jury selection.

First, the jury system is only as fair as the jurors themselves. Whether arising from cultural prejudices or mass gullibility, juries have been known to send innocent people to prison, let guilty ones go free, and resolve civil disputes inequitably. This is an old, old story. The same Englishmen who praised the jury in the 1700s as the "palladium of our liberties" knew full well what had happened to Roman Catholics and Puritans who went before Anglican juries a hundred years earlier.

Second, ordinary citizens, even when intelligent and fair, do not always understand the most complex cases. Civil cases in particular often present thousands of pages of evidence or involve ingenious interpretations of contracts. Jurors may be required to understand lengthy statutes and weigh technical issues about which even the specialists disagree. How can average citizens navigate "standard practice" among brain surgeons, or reason their way through the labyrinth of the antitrust laws?

Why, then, did our forebears think it was a good idea to leave so many weighty matters to citizens picked at random—"twelve good men and true"?

Historians dispute the origins of the system but generally agree that the earliest, medieval jurors were probably chosen because they were, in effect, expert witnesses. In village England, your neighbors would know best whether you were the sort of man who might get a maiden with child and then lie about it, or the sort of woman who might hex a rival's cow. Gathering the locals to pass judgment on the facts of a case, under the supervision of a judge from the local gentry, was preferable to such ancient methods as trial by dunking (if you were innocent, you sank and drowned). And if the king wanted to hang you, the assistance, or at least the acquiescence, of your fellow villagers was a convenience. The jury proved a useful way of involving—and implicating—all men in delivering the king's justice.

As the centuries passed, though, the jury became such a familiar part of the legal system that it came to be regarded as a right. What began as a support to the king became a constraint on his authority. If men were to be judged by their peers, then the king could not touch the lives, liberty, or property of his subjects arbitrarily. This protection gained a wider significance in the 1600s when the Stuart monarchs sought to use the seditious libel statutes to punish their enemies. The law of seditious libel made criticizing the government a crime, and truth was no defense against the charge. ("For it is very necessary for all governments that the people should have a good opinion of it," explained Chief Justice Holt in 1704.) Obstinate jurors were often the primary means of defense against misuse of the royal prerogative. Similar abuses in the colonies, and the refusal of juries to acquiesce in them, taught Americans the same lesson. As the British legal scholar Lord Devlin said in 1956, "Trial by jury . . . is the lamp that shows that freedom lives."

But why was such an institution necessary in a republic—where there are no kings to trouble the lives or liberties of citizens? The answer is that our ancestors were suspicious of everyone—and the jury was simply one of the "checks and balances" by which they hoped to render the exercise of authority as safe as possible. The temptation to abuse power was a human one, after all, not limited to monarchs. Subsequent experience has proved them right.

In America the jury system also acquired a justification that it could not have had under the Stuarts: Where ordinary citizens have effective control of the government, there must be opportunities to learn the political arts essential to governing wisely. The jury was an institution where such learning could take place. This is what Alexis de Tocqueville meant when he said that the jury is a "school that is free, and always open." By passing judgment that involves penalty—fines, imprisonment, even death—jurors gain an appreciation of the sometimes terrible responsibilities of ruling. The jury system contributed, Tocqueville believed, to the spread of a deeper understanding of the art of governing.

Tocqueville conceded that civil trials were not very good for litigants, because jurors were often asked to judge business practices far removed from the farms or small towns where most of them lived. But the discipline of the law, with its language, its formalities, its guidance by reason, was exactly what a boisterous democracy required. The judge would be the teacher, setting the tone for the jury, initiating its members into the solemn rituals of judgment, and rewarding them in the end with his respect. What was important was not so much what the jurors brought to the courtroom as the lessons they took away with them. Multiplied by thousands of jurors in thousands of trials, the democracy would be ennobled.

Jury deliberation room

Jury deliberation room

MUCH OF WHAT is wrong with the jury system was clearly on display in Courtroom 7B. Boredom and resentment are not a very promising foundation for the defense of our liberties. As the voir dire proceeded and one juror after another sought to wriggle off the hook of duty, it was hard not to connect their reluctance with other signs of civic indifference—low voter turnout, the reluctance to pay taxes.

The jury was finally impaneled at about 3:30. Of the 16 seated, 10 were women. Only two of the 16 appeared to be over 50, and 15 were white—the lone black juror among the original 120 was chosen early in the process, and he was not challenged by either side. There were no Asians on the final panel. In fact, there had been very few non-whites of any kind among the 120, which is curious. Massachusetts compiles its master jury list by taking names randomly from the census records submitted by the state's 351 cities and towns—a practice thought to be more inclusive than the older practice of relying on voter registration lists. Since the lists supplied by municipalities are supposed to include the names of every resident over the age of 17, the demographics of this group—so different from Cambridge and from Middlesex County as a whole—were puzzling. Either many who should have been called were missed, or many who were called failed to respond.

Though it was a lengthy ordeal, the completion of voir dire had worked a change in the room's atmosphere. The rejects and escapees were gone, and the courtroom no longer looked like an overcrowded terminal. The room had become quiet, as though something important were about to happen. At the judge's direction, the jurors filed out a side door for a conference with the court officer, who would explain some of the rules and procedures to be followed during the trial: starting times, duration of the lunch break, a warning not to discuss the case with anyone, including fellow jurors. During this recess, Judge Houston retired to his chambers, and the rest of us—attorneys, clerks, officers, and bystanders—waited. And waited.

When Judge Houston finally reappeared behind the bench, he remained standing, signaling to an officer to open the door for the jurors. "All rise for the jury," the judge called out, loudly and dramatically, and we all leapt to attention. Slowly, awkwardly, the jurors entered in single file, found their numbered seats, and, still standing, turned to face Judge Houston. He administered a second oath, in which the jurors swore that they would "render a true verdict according to the evidence in this case, so help me God." The judge cautioned them not to speak to anyone about the trial, to be fair and impartial, and to reach a verdict based on the facts presented in court and no other considerations. He spoke to them (not slowly now, but in a normal cadence) about the important contribution they were making and of his hope that they would "come away from this experience with a greater appreciation for the jury system and its importance to our way of life." Jury service, he concluded, is "in the finest traditions of American citizenship."

As Judge Houston spoke, the jurors gave him their undivided attention—in marked contrast to the larger group earlier in the day, possibly in marked contrast even to their earlier selves. For a brief period, but unmistakably, these strangers had become a team. However accidentally, even reluctantly, they were embarking on a kind of adventure together, and the judge would be their guide. The case was under way at last.

Dennis Hale is an associate professor of political science at BC. In Courtroom 7B, the jury ruled against the clinic; the father was awarded $108,000, far less than the $3 million he sought.


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