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II. Jury Trials - To Be or Not To Be?It seemed so clear and simple. In the Bill of Rights, on December 15, 1791, those first ten Amendments to the U.S. Constitution promised in the Sixth Article "the right to a speedy and public trial, by an impartial jury...." in criminal cases. And the very next Amendment, Article 7, promised "the right of trial by jury shall be preserved" in civil cases.Jury practice at common law in 1791 meant a jury of 12 "peers" (or equals) who would return a unanimous verdict. In the new ABA Standards Relating to Jury Trials, adopted in February 2005, Principles 3 and 4 reaffirm those promises. And yet we are in the midst of a flood of "jury reforms" which bring into doubt these promises from our colonial past. A recent study revealed that of the 52 jurisdictions (50 states, D.C. and federal courts)
Some reasons are traced to the trial process itself. Dispute resolution by trial is perceived to be too slow and expensive. Various alternative dispute resolution techniques, particularly in civil cases such as arbitration, mediation, conciliation, etc., are thought to be adequate substitutes by some. Especially civil trials with juries are declining dramatically in both federal and state courts. Although case filings have risen everywhere, actual trials in U.S. federal courts have reduced from 12,000 in 1985 to 4,500 in 2002. Only 2/3rds of them went to jury trial. In state courts, only 0.6% of civil case filings went to jury trial in 2002. Some observers express concern over the resultant growing shortage of experienced trial judges and lawyers. A major contributor to the decline in jury trials is the emphasis on settlement. Many proactive judges and indeed most lawyers see settlement as a means of avoiding the risks and uncertainty of trial. But some authorities remind us that the threat of trial is the backstop that makes settlement possible. Yet another factor in the decline in jury trials is the increasing distrust of juries by trial lawyers. Highly publicized runaway verdicts (though rare) discourage defense lawyers and growing media and medical society pressure for so-called "tort reforms" intimidate claimant's lawyers. And then there is the occasional case where the jury ignores the court's instruction and takes the law into its own hands. (We call this "jury nullification.") But some reasons for the changes are traceable to the unanimous, 12-person jury itself. Less expensive and quicker verdicts come from smaller juries with non-unanimous verdicts. And there is no clear evidence their verdicts are less "correct." Some interesting observations are emerging. Verdicts by smaller juries are less predictable. Fewer numbers produce fewer viewpoints and less experience in the jury. There is less deliberation. There is some evidence that "runaway verdicts" are more likely. Traditional 12-person, unanimous verdict juries retain some advantages as well as dis-advantages. They permit more peremptory challenges (without a stated reason) during jury selection, but many criticize this feature as a tool of discrimination. Yet, larger juries encourage more citizen participation and include more under-represented groups. In practice, they involve more juror participation in deliberations. Each juror's opinion counts. In the event of an obstinate or aberrational juror, this may result in compromise with the jury, and rarely a "hung jury" (one which cannot reach a unanimous verdict.) Studies tend to show larger juries deliberate longer and have better recall of testimony and evidence. Further, the research shows they take more ballots when unanimity is required. The most common variations from 12-person, unanimous juries are 6 members and a 5/6th majority vote. These numbers appear to have been chosen at random and may open the door to further tinkering with juries. Pennsylvania still requires 12 jurors in both civil and criminal juries. But in civil juries, a 5/6th vote (10 of 12) can decide the case. In federal court, civil juries may number only 6, with a 5/6th vote prevailing (5 of 6). As the system undergoes experimentation and change, it is important to keep the goal in mind. Justice requires fairness, not only in the process but in people's perception of the trial, as a vehicle for achieving justice under law. Juries of our "peers" still have a role to play, which is common sense decision-making exhibited by the vast majority of juries. |
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