Dennis Hale - The Jury in America: Triumph and Decline

The Jury in America

AMERICAN POLITICAL THOUGHT

Wilson Carey McWilliams and Lance Banning

Founding Editors

The Jury in America

Triumph and Decline

Dennis Hale

University Press of Kansas

2016 by the University Press of Kansas

All rights reserved

Published by the University Press of Kansas (Lawrence, Kansas 66045), which was organized by the Kansas Board of Regents and is operated and funded by Emporia State University, Fort Hays State University, Kansas State University, Pittsburg State University, the University of Kansas, and Wichita State University

Library of Congress Cataloging-in-Publication Data

Hale, Dennis (Dennis B.), author.

The jury in America : triumph and decline / Dennis Hale.

pages cm. (American political thought)

Includes bibliographical references and index.

ISBN 978-0-7006-2200-9 (cloth : alk. paper)

ISBN 978-0-7006-2201-6 (ebook)

1. JuryUnited States. I. Title.

KF8972.H261 2016

347.73752dc23

2015035633

British Library Cataloguing-in-Publication Data is available.

Printed in the United States of America

10 9 8 7 6 5 4 3 2 1

The paper used in this publication is recycled and contains 30 percent postconsumer waste. It is acid free and meets the minimum requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992.

In memoriam

Wilson Carey McWilliams, 19332005
Scholar, teacher, friend

The Writer of the following Observations not being a lawyer by profession, some apology may seem necessary, for his attempting to write upon a subject, which may be thought more peculiarly the province of the professors of the law. But it is a subject, as he conceives, of great importance to the general interests of liberty, a subject in which every Englishman is concerned, and... which should be generally understood by men of all ranks, and especially by those who are liable to serve on juries.

Joseph Towers, An Inquiry on the Rights and Duty of Juries, in Trials for Libels; Together with Remarks on the Origin and Nature of the Law of Libels

Ruler and ruled have different excellences; but the fact remains that the good citizen must possess the knowledge and the capacity requisite for ruling as well as for being ruled, and the excellence of a citizen may be defined as consisting in a knowledge of rule over free men from both points of view.

Aristotle, Politics

To love democracy well, it is necessary to love it moderately.

Pierre Manent, Tocqueville and the Nature of Democracy

Contents

Preface and Acknowledgments

This is a book about the American jury system, both its criminal and its civil forms, and how that system has changed over time, especially during the past half century. I am a political scientist, not a lawyer, and my aim is to examine the jury as Tocqueville saw it: as a political institution, one of several components of a republican regime based on public participation in enforcing as well as making the laws.

When I first began to think about writing a book on the jury system, it was in the context of a broader interest in the nature of American citizenship. As a political institution, the jury is an expression of the idea of direct participation in governmentas contrasted with the more passive experience of votingand it was this active dimension of jury service that first caught my interest. Jury service seemed different enough from the other political experiences of American citizens to warrant special investigation. My interest was piqued as well by a personal experience with jury duty: being called to the old Middlesex County Courthouse in Cambridge, Massachusetts, to await my turn for voir dire, only to be sent home without being called.

But no sooner had I begun my research than the jury system entered a period characterized by many observers as a crisis. One trial after another contributed to increasing doubts, among laypeople and professionals alike, about whether juries were working the way they were meant to work. The examples are well known: the acquittal of O. J. Simpson for the murder of Nicole Brown Simpson and Ronald Goldman and his subsequent conviction for civil liability by a second and very different jury; the initial acquittal of Los Angeles police officers in the Rodney King brutality case; the hung jury in the trial of the Menendez brothers for the murder of their parents; the 1992 acquittal of Lemrick Nelson for the murder of Yankel Rosenbaum, a crime to which Nelson later confessed; enormous and allegedly unjustified damage awards in civil trials against deep pocket corporations. Reflecting on the lessons of the Simpson trial, legal scholar Albert W. Alschuler came to a grim conclusion: Our jury system often appears to have grown preposterous. These cases and others like them have revived a debate about whether juries are the best way to resolve civil and criminal casesa debate that has been going on, as we will see, for a very long time.

Recent concerns about what the jury system has become only added to my curiosity about what the jury used to be. Where did juries come from? What were they meant to be? What were they supposed to accomplish? These questions led me back to the beginning of our countrys history and beyond, into the ancient thickets of the common law. Trial by jury is an institution so old that no one is quite sure where it came from, and a rich mythology about jury trials has developed over the generations. But the historical record is clear enough to suggest that the jury has been controversial more than once during this time, and the first part of this book covers some of this history to lay the groundwork for an understanding of the emergence of the modern American jury system in the late nineteenth century.

But we cannot understand the jury without also going outside the legal system, to the larger political order of which the jury is a part. If the jury is a political institution, then its functioning cannot fail to shape and be shaped by changes in the regime: changes in prevailing ideas about justice, fairness, and equality; in the popular understanding of common words such as reasonable or biased; and in the definition of who is capable of exercising the most difficult duties of citizenship and what those duties are. Taking this broader view has two immediate advantages: first, it helps us understand more clearly the real significance of the jury system, and second, it helps us see that some of the apparent failures of the jury system are merely symptoms of failure in the polity. The tensions and contradictions of the modern jury are shared by, even produced by, modern democracy itself. In fact, because the jury is so old, so continuously present in the life of the American republic, it can act as a mirror, reflecting the changes taking place around it.

In that miniature version of the nation assembled to deliberate the fate of particular defendants and to judge particular facts, we might witness much larger things: an end to prosecution for seditious libel, new ideas about race relations, a new understanding of what it means to be negligent, new views about the importance of expertise, a new understanding of judgment. We might also witness the failure of citizenship: citizens refusal to take their responsibilities seriously, their hostility toward disfavored groups, their fear of judgment itself. Criminal and civil trials and the jury decisions that result from them involve debates about the most fundamental questions of right; therefore, they go to the heart of what makes the nation what it is.