Inside the Jury Box: Right to a Jury Trial | Jury Composition and Selection | Jury Nullification

The Legal Seagull: Law | Litigation | Self-Help | Legal History

Few features of the American legal model are less understood than the jury system. For most people, the first introduction to juries comes in the form of a long-dreaded summons for jury service, which has an uncanny tendency to arrive during the busiest and least convenient times. For those unfortunate to be involved in a civil lawsuit or charged with a crime, the thought of being judged by a selection of 6-12 strangers can be a scary thought. In today’s episode, we will cover: (1) the right to a jury trial; (2) how juries are selected; (3) what is the function of the jury and how does it differ from that of a judge?; (4) how juries deliberate and make decisions; and (5) the phenomenon of jury nullification, whereby a jury consciously disregards the law and acquits a criminal defendant based on social or moral reasons, to show disapproval for a law, or when it feels that the law is unjust. Right to Trial by Jury

– The United States Constitution guarantees a jury trial for the majority of civil and criminal actions.

– Article III, section 2 states: “The trial of all crimes shall be by jury and such trial shall be held in the state where the said crimes have been committed.”

– The Sixth Amendment states: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state where the said crimes shall have been committed.”

– The Seventh Amendment provides: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re–examined in any Court of the United States, than according to the rules of the common law.”

– Trial by jury offers parties several important advantages over one in which a judge is the trier of fact:

– Jurors come from a variety of socioeconomic backgrounds, racial and ethnic origins, and bring their own life experiences and wisdom to the jury, leading to more thorough discussion and analysis by the jury as a whole.

– Juries often reflect the common values of the community and therefore often render decisions in conformity with those values.

– In theory, it would be easier to bribe or corrupt a single judge than numerous jurors.

– By contrast, juries may be susceptible to the following problems:

– Juries may be more likely than judges to fall for demagoguery, rhetoric, and passions of attorneys, and therefore may reach verdicts that are at odds with the evidence.

-As members of the community, juries may vote in line with their prejudices, which may disadvantage defendants on the basis of race, socioeconomic background, gender, sexual orientation, etc.

– Strong-minded and vocal jurors may overpower and pressure mild-mannered ones.

– Jurors may have difficulty understanding complicated matters (e.g. pharmaceutical patents, electric configurations, financial schemes, etc.) that would be easier understood by a judge.

– In criminal cases, a jury, not a judge, must determine whether aggravating circumstances exist to increase a defendant’s sentence or impose the death penalty. (See Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296). In Apprendi, the Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”

– As previously noted in The Legal Seagull Tidbit for LS 007: Is Teacher Tenure Unconstitutional?, every defendant has a constitutional guarantee of an impartial jury by members of his or her own community, which includes a broad and fair representation of the community, especially with respect to race, ethnicity, and gender. This guarantee applies to the jury pool from which a jury is selected- it does not mean that a person has a right to a jury of his or her own particular race, ethnicity, or gender.

Functions and Duties of a Jury

– The jury is charged with listening to witness testimony and experts, reviewing physical evidence and documents, and any other evidence, and making factual findings. Juries must evaluate the credibility of witnesses, the strength of the evidence presented and whether it is compelling and reliable, and to determine which parties should prevail (if any).

– The judge, by contrast, conducts the trial by interpreting the law and instructing the jury as to substantive and procedural laws, jurors’ responsibilities, and the deliberations process. In criminal cases, the judge usually imposes the sentence (subject to certain limitations, discussed below).

– Juries are asked by the judge to evaluate the testimony and evidence presented at trial and to follow the court’s instructions in determining whether the law has been violated or a party is entitled to recover in a civil suit.

– In cases where there are no disputed material issues of fact, the judge may determine upon appropriate motion (e.g. motion for summary judgment, motion for judgment on the pleadings, motion for directed verdict, etc.) that there are no disputes as the to the major allegations, and that the only question left for the court to decide is a legal one, which is best decided by a judge.

– Example: Paul sues Donald over wrongful termination under Statute A. Paul and Donald agree as to all the material facts in the case, including the fact that Paul had an independent-contractor employment relationship with Donald’s company. The only issue left for the court to decide is whether under Statute A, independent contractors are entitled to sue for wrongful termination. Here, there are no factual issues for the jury to determine, and all that remains is a legal question. In this example, it would be appropriate for the judge to rule that a jury is not necessary (indeed improper).

How is a Jury Selected?

– Parties may waive the right to a trial by jury, and instead elect to have the case decided by a judge. This is generally referred to as a bench trial or court trial.

– Jurors are summoned for jury duty based on information obtained from public records (e.g. electoral rolls, drivers’ licenses, etc.). The people summoned are referred to as the “jury pool.”

– Once arriving at the courthouse, a clerk will typically assign potential jurors to fill the jury box. At this point, the judge or lawyers will ask the jurors if there is any logistical/financial/person reason they cannot serve (e.g. family hardship, financial difficulties, pre-planned trips to leave town, etc.). The judge may excuse potential jurors for service on those grounds; however, employment commitments are rarely persuasive to judges, as they apply to most people and employers are prohibited by law from discriminating against an employee based on jury duty.

– After some potential jurors are excused, the judge or lawyers (depending on jurisdiction) ask the jurors a series of questions about their backgrounds and beliefs in order to obtain their appropriateness as jurors, whether they have any biases, prior knowledge of the case, or know any of the parties or lawyers involved in the case. This process is known as voir dire.

– After or during voir dire, the parties and judge may excuse any party for cause, meaning that the person cannot reasonably be expected to be an impartial juror. Examples of a removal for cause may include the following:

(1) A person that is employed or otherwise affiliated with a party the action.

(2) A person that has a family member as a juror.

(3) In the selection of a jury for a criminal case, a person that has been the victim of a similar crime and who believes that he or she cannot evaluate the defendant’s case impartially. Likewise, a person who claims to be a victim of police brutality or prosecutorial misconduct may not be expected to be impartial.

(4) A person who states that he or she holds such strong racial/ethnic/gender biases that would preclude a fair evaluation of the evidence.

– In addition to an unlimited number of dismissals for cause, each party may dismiss a limited number of jurors, depending on the jurisdiction. These are referred to as peremptory challenges.

– Peremptory challenges may be may for any reason except one prohibited by law (i.e. race, ethnicity, gender). (See Batson v. Kentucky (1986) 476 U.S. 79, holding that jurors in a criminal case cannot be excused based on race; Edmonson v. Leesville Concrete (1991) 500 U.S. 614 extended this right to civil cases; J.E.B. v. Alabama (1994) 511 U.S. 127 holding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality”).

– In selecting juries for high-profile cases, some attorneys use jury consultants- individuals with backgroudns in law, psychology, or sociology who understand (or claim to understand) juries’ deliberations, decision-making process, and the opinions of the parties and evidence presented. Jury consultants can be expensive, with an average cost of $250-$300. Jury consultants offer the following services:

(1) Analysis of whether the parties provoke strong personal reactions from the jurors, good or bad;

(2) Discovering undisclosed biases of jurors.

(3) Observing jurors during court sessions and breaks to determine their levels of attention and leanings, and to see which jurors appear to be socializing, to determine whether “cliques” are forming. Many jury consultants claim to be able to analyze the facial expressions and body language of jurors.

(4) Pre-trial investigation to determine what attributes and backgrounds the attorneys should seek in selecting a jury.

– As a tactical matter, diligent attorneys will attempt to have a case tried in the most favorable venue possible.

– Jury verdicts need not always be unanimous.

– In federal court, jury verdicts must be unanimous, unless agreed otherwise by the parties.

– Each state may decide whether jury verdicts must be unanimous.

– In criminal cases, every state except for Oregon and Louisiana requires a unanimous verdict.

– Notably, both Oregon and Louisiana require unanimous verdicts in capital cases.

– The U.S. Supreme Court has given some indications that it may review the constitutionality of non-unanimous verdicts in criminal cases. For a great blog entry on this topic, read Non-unanimous criminal jury verdicts by Eugene Volokh.

– In civil cases, about one-third of states require a unanimous verdict. The rest allow for a majority verdict.

– If a jury cannot reach a verdict after exhausting the deliberations process, this is referred to as a “hung jury.” Under most circumstances, the judge will excuse the jury and declare a mistrial. The parties will then determine whether to retry the case before another jury.

Jury Deliberations

– At the conclusion of all testimony and evidence, the judge will provide jury instructions that explain the law and procedure, and verdict forms, to the jury. Each party’s attorney may suggest its own instructions, or use standard judicial forms. The judge, outside of the presence of the jury, decides which instructions comply with the law and should be given. Jury instructions are appealable in the event of an adverse verdict, and in fact form the basis of a significant number of appeals.

– After being instructed as to the law, the jurors convene in the deliberations room, where they may be provided with certain exhibits and transcripts (depending on the judge).

– There is no set format for jury deliberations, and these take place outside of the presence of the judge, attorneys, clerks, and any other court spectators. Jury deliberations may take only minutes, days, or even weeks. They may be civil, but are often contentious, with some jurors attempting to impose their opinions on the other jurors. Despite this, juries almost always reach a verdict.

– If the jury does not understand the instructions, or has any other questions relating to the law, the evidence, or the testimony, it may submit a note to the judge. Then, in the presence of the attorneys and parties, the judge reads the note and determines how to respond.

– Once the jury has reached a verdict, it signs the verdict form and delivers it to the court. The jury is then brought in, and the verdict announced.

– After the verdict, the attorneys are generally permitted to ask the jurors how they reached their decision, and their opinions of the case, the evidence, and the parties themselves. However, attorneys must be respectful of jurors’ right to not speak with them.

Jury Nullification

– As mentioned above, jury nullification involves a jury’s conscious disregard of the law and the evidence in a criminal case, to show disapproval for the law, rejection of perceived prosecutorial overreach, or other social considerations.

– Jury nullification has a long history that pre-dates the founding of the United States:

– Salem witch trials (1690s)

– Fugitive slave laws (1850s)

– Freedom to strike (late 1800s)

– Alcohol prohibition (1930s).

– Jury nullification is most common in drug trials, and in particular marijuana, when a jury feels that the defendant committed the crime for which he or she is charged, but nonetheless believes the conduct should not be criminal or that the defendant need not be fined or incarcerated.

– Jury nullification is a “two-edged sword” which can be used for sinister purposes too. It has been used by juries to acquit defendants of the murder of racial minorities, even in case where the evidence of guilt was overwhelming.

– Jury nullification is not sanctioned as a proper function of a jury. As previously noted, the jury is is ordinarily charged with finding facts, not deciding the appropriateness of the law or whether it should be disregarded in favor of a particular defendant. That being said, the U.S. Supreme Court has never held that the jury does not have the power of nullification. However, it held in Sparf v. United States (1895) 156 U.S. 51 that trial judges were not required to inform juries that they may nullify a verdict.

– In Unites States v. Moylan (1969) 417 F.2d 1002, the Fourth Circuit U.S. Court of Appeals held, “If the jury feels that the law under which the defendant is accused is unjust, or exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the right to acquit, and the courts must abide by that decision.”