The Contemporary American Jury
by Marion Edwyn Harrison

The media currently are reporting extensively - some would say, excessively
- about jury problems in the L. Dennis Kozlowski and Martha Stewart criminal trials.

In the Kozlowski case, a 79-year old juror, graduated late in her fifties from law school, is reported to have been a holdout for acquittal, and supposedly in the presence of the jury is said to have made a thumbs-up gesture to counsel for defendants. Then, with widespread media publicity, her identity and alleged misconduct exposed, she received what might be interpreted as a threatening letter from an officious member of the public apparently too impetuous to check the facts and too emotional to restrain from interposing himself in a trial as to which he had no business, right or legitimate concern. The result was a mistrial: six months of trial time (to say nothing of preparation time) and millions of taxpayers' and defendants' dollars wasted - a retrial, at yet further huge cost, is likely.

In the Stewart case, her counsel is said to be contending, perhaps accurately, that a prospective juror who became a juror prevaricated about his criminal record. Upon that ground they are seeking a new trial.

The United States of America is the last nation which extensively utilizes a jury in a substantial percentage of civil trials and most felony criminal trials.It is interesting to compare how relatively seldom the English, from which our jury system derives, use a jury - and also to observe the far more significant role an English trial judge has in influencing a jury. An English judge has considerable latitude in commenting upon the evidence, while restating the right of the jury to evaluate the evidence as it deems fit. An Irish judge has almost a mandate. An American judge must take care not merely to avoid any such comment but to restrain his facial expression, tone of voice and body language. The late Washington, D.C. Federal Judge Alexander Holtzoff, one of the most brilliant, if sometimes irascible, of jurists, once was reversed upon appeal because he indirectly deprecated a witness by his gestures.

Any attorney who has tried jury cases, civil or criminal, could, if he so chose, recount stories which, sometimes individually, and certainly in the aggregate, illustrate the non-evidentiary aspects of jury trials. Not for nothing is there the common expression "Play to the jury." (If you watched "Trial Lawyer" Senator John Edwards' presidential campaigning, you saw a talented "warm and feelly" fellow treating audiences more emotionally than intellectually, as he successfully treated jurors.) In criminal trials both prosecution and defense have a trying task of attempting to empanel a reasonable - and, each side hopes, sympathetic - jury. Much has been written, and probably much more said, by way of "How to" advice as to both civil and criminal jury selection. There are psychologists and amateur psychologists who earn their living advising counsel in jury selection.

In civil trials involving no human suffering the task also is complicated. In civil trials which play to the emotions - a plaintiff, preferably poor and personally appealing, versus some rich, allegedly rich or well-insured defendant, especially corporate - the script is easier. Plaintiff's (usually contingent-fee, the so-called "Trial Lawyers") attorney seeks jurors who are well intentioned, sympathetic to the underdog, somewhat emotional, low on the social and economic scale, ignorant of the value of money, not too bright or too sophisticated. If a real do-gooder is available, particularly one willing to spend other people's or corporate shareholders' money, the juror can be bright, in the hope he will persuade others. The defense, of course, seeks the opposite - jurors who would be fact-oriented, unemotional, and who do not believe that necessarily there must be a responsible, and high-paying, defendant just because a plaintiff is terribly injured through no fault of his own - or, worse yet, through his own fault.

Each side, civil or criminal, also must consider a juror's ability to "last." Complicated criminal and many big-bucks civil cases consume weeks or months of trial. Who can "take off" such a long period of time? Usually not a responsible mother caring for her children; a gainfully and responsibly employed salesperson; a professional; someone who travels extensively in business; clergy; military personnel - and many others. Thus, the available pool is disproportionately low-paid employees, the unemployed or underemployed; those whose employer grants paid administrative leave (as most government bodies do, at taxpayer expense); and the retired.

Would we choose an accountant, attorney, architect, butcher, bricklayer, carpenter, chef, dentist, electrician, engineer, mason, nurse, pharmacist, physician, pilot, plumber, psychologist, realty agent, repairman, veterinarian or any other skill upon the foregoing criteria? In sum, the jury system as it too often operates, particularly in protracted and high-profile cases, depends too disproportionately upon those people we would not hire. How many of your friends avoid jury duty if they are able lawfully to avoid it?

Many other "civilized" countries - for example, much of Europe and our fellow English-speakers worldwide - utilize a judge, or a panel of judges, sometimes with an advisory jury, sometimes without. Justice moves faster; cost to taxpayers and litigants is vastly less; and those who weigh the evidence are judges trained and experienced as experts in doing just that. Even in this country there are, for example, "administrative law judges" and "administrative judges," albeit employees of a governmental agency, some of whom try complicated non-jury cases, usually with objectively acceptable results, and generally at relatively lesser cost, all in part because the judge is experienced and trained to evaluate the evidence.

When our wise Framers provided in the Constitution, Article III, Section 2, and Amendment VI, for a right to a criminal jury, and in Amendment VII for a right to a civil jury, they did so in the context that most Colonial and English jurors had been, and would continue to be, responsible citizens of some substance, often landowners - the trite phrase, "one's peers." They likewise so provided in the prevailing context that a judge had considerable discretion in speaking to the jury.

It's also notable - and often misconceived - that the Constitution per se does not require unanimity of jurors. That requirement, where it exists (as in most criminal, many civil, trials), is the product of statutes or State constitutions. Think how onerous for the prosecution in a federal criminal case: typically 12 of 12, not even 11-1, must vote to convict even though the standard is guilty beyond a reasonable doubt. Neither the Supreme Court of the United States nor any federal or state multi-jurist panel requires unanimity.

The solution, therefore, is to find ways -- voluntarily where feasible, otherwise statutorily -- to limit the number, scope and subject matter of jury trials (such as the asbestos legislation, continually blocked by a mostly Democratic senatorial minority); to compress or shorten actual and elapsed trial time; and to enhance the caliber of jurors.

Any natural solution also requires elimination (as New Hampshire has) of punitive damages in a civil action. After all, isn't it inherently unfair to award punitive damages in a civil case (in which the burden of proof merely is a preponderance of the evidence) rather than in a criminal case (in which the burden is guilt beyond a reasonable doubt and in which there are other protections for a defendant)? Punitive damages is just a civil-action way of restating what otherwise would be a criminal fine.

Surely our legal scholars, legislators and judges, if motivated, could find some way to reduce the increasing farce that has become our civil and criminal litigation system. The Kozlowski and Stewart fiascos may make a journalist's day but they blot our culture and unfortunately hide too much else that is wrong with our legal system.

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation