AMERICAN JURIES

By Fred Graham

The U.S. jury system derived from a British practice that aimed to protect subjects from tyranny by the king. For hundreds of years, the system has evolved with changes in society and has survived, still presenting a check on government power. Fred Graham is an anchor on truTV, formerly called Court TV, and was the primary court reporter for CBS News from 1972 to 1987. This article appears in the July 2009 issue of eJournal USA, Anatomy of a Jury Trial.

In the winter of 2009, inmates of Roumieh prison in Lebanon were given permission to stage a play. They chose to perform an Arabic version of 12 Angry Men, originally an American television drama and then a hit 1957 movie, about jurors who argue bitterly over a murder case and eventually find the defendant not guilty.
The version put on by the prisoners was a smash success — despite the fact that Lebanon, like most nations, has no trial by jury and all of the imprisoned viewers had been locked up without the benefit of the kind of anguished deliberations that are the essence of a jury trial. In fact, 90 percent of the world’s jury trials take place in the United States, where the practice is thriving.
What makes the American jury system so fascinating to the public? Why does it flourish in the United States and barely exist elsewhere? Does the U.S. system carry the seeds of its own demise, as in other nations that once used juries widely and gradually replaced them with decisions by judges?
The answers are to be found in the historical roots of the American jury system and the remarkable capacity of the U.S. system to adjust to legal and societal changes that might otherwise seem to threaten the vitality of trial by jury.
The American jury system was inherited from medieval England, where panels of 12 “free and lawful” men in each community were summoned to help the king do justice. For centuries these panels based their decisions on what they knew of local wrongdoing. But as England became more populous, these jurors usually could not rely on neighborhood gossip and increasingly based their decisions on evidence they heard in court. By the time the American legal system absorbed the British model, U.S. jurors were admonished to ignore anything they might know about the case and decide the facts solely on the evidence presented in court.
The British had regarded jury trials as a potential bulwark against oppressive actions by the king, but there was a more pragmatic reason for retaining trial by jury. English law contained harsh penalties, including the death penalty, for relatively petty crimes. British juries served to soften the impact of this by acquitting defendants or finding them guilty of lesser crimes.
Resisting Oppression
American law did not pose this problem, but the American Colonists in the 18th century had their own reason for retaining trial by jury — they used it as a shield to block what they saw as oppressive prosecutions by the British. Repeatedly, the British rulers indicted Americans for illegally shipping goods in non-British vessels, only to have local juries acquit the accused. When the prominent American publisher John Peter Zenger was brought to trial for criticizing a governor appointed by the British king, a New York jury found him not guilty and created an early precedent for freedom of the press. So as the Americans moved toward revolution, it was not surprising that in their Declaration of Independence they denounced the British king “for depriving us in many cases, of the benefits of trial by jury.”
And when the new nation adopted its Bill of Rights in 1791, it specified that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” It also provided that the right to jury trials in civil cases should be preserved.
In the years that have passed, the U.S. Supreme Court has interpreted these guarantees in ways that have adjusted the concept of the jury to meet changing conditions. Where jury service was once limited to white men who owned property, the right to serve on a jury was gradually extended to minorities and women. The court held that the right to a jury trial did not extend to petty cases, and that any defendant may waive the right to a jury and go to trial before a judge. Originally, all juries had 12 members whose decisions had to be unanimous, but the Supreme Court introduced more flexibility into the system by holding that juries may be as small as six members and that not all verdicts must be by unanimous votes. Traditionally, poor defendants had to face the prosecutors alone before the jury, but the Supreme Court held that the government must provide defense lawyers for them free of charge.
To some extent, the right of trial by jury appears more imposing than it is in reality because in practice the vast majority of accused persons do not invoke their right to a jury trial. They realize that if they go to trial before a jury and are found guilty, their own misconduct will have been highlighted by the testimony and the judge will tend to hand down a heavy punishment. So they enter into a plea bargain with the prosecutor — they agree to plead guilty to a lesser offense in exchange for a reduced sentence. The prosecution often agrees to plea bargains because it is spared the trouble, expense, and uncertainty of going to trial. In many jurisdictions more than nine out of 10 prosecutions are resolved in this way, without a jury trial.
This heavy reliance on plea bargaining is often criticized by observers of the American legal system. It reflects the reality that while in theory the prosecution and the defense should have the same chance of winning before a jury, in fact the prosecution usually has many advantages. The defendant has a right to legal counsel, but frequently his or her lawyer is a public defender who is inexperienced, overworked, and inclined to settle the matter by a plea bargain rather than fight it out before a jury. Moreover, the prosecution typically has far more money than the defense to spend on investigating the case, analyzing the evidence, and checking out prospective jurors. The result is a degree of cynicism among defendants toward the right to trial by jury, which sometimes seems to them to promise more than it delivers in terms of justice.
In fact, scholars, judges, and other observers of the jury system point to a series of problems posed by modern developments that could not have been imagined by the statesmen who enshrined the right to trial by jury in the Bill of Rights.
Impact of Race
One of the most troubling of these problems is the impact of race on jury selection. Traditionally, during jury selection both sides were given the right to strike a certain number of prospective jurors from the panel without giving any reason. In recent years, some prosecutors have used their strikes (called “peremptory challenges”) to remove from the jury all African Americans, who the prosecutors believe are inclined to favor defendants in criminal trials. The Supreme Court has condemned this practice and has ruled that prosecutors must have valid reasons for striking blacks from juries. But the rule has been difficult to enforce because prosecutors have become adroit in citing reasons other than race for removing potential jurors who happen to be black. The result is a festering resentment among some black defendants and their lawyers toward a system that they believe denies defendants a jury of their peers.
Another problem that the U.S. Founding Fathers could never have anticipated is the effect of celebrity defendants on the jury system. The popularity of television and movies in the United States has created a celebrity culture in which the rich and famous are looked upon by some people as more deserving than ordinary folk. This can have a bizarre result when a celebrity is on trial and celebrity admirers are on the jury.
A classic example of this was the 2005 child molestation trial in California of the late entertainer Michael Jackson. During jury selection it became obvious that even though jury service in the long trial would be burdensome, many of the potential jurors were maneuvering to get on the jury. Spectators came from around the world to see Jackson on trial, and some of the jurors became so starstruck they behaved in bizarre ways. To make a point, one juror smuggled into the jury room a videotape of a television account of the trial. After the jury unanimously acquitted Jackson on all counts, two jurors went on television and declared that he was in fact guilty and that they planned to write a book about the case.
Book writing by jurors is a persistent problem in celebrity cases. For many jurors, a book deal is the best chance in their lives to make a large sum of money, and the temptation can be irresistible. After the sensational 1995 trial of former football star and actor O.J. Simpson— he was controversially acquitted of murdering his ex-wife and her friend — the trial judge lamented that every juror participated in some form of book project. Legal observers concede that jurors have a First Amendment freedom of speech right to write about their case, but most critics believe that the practice can have an unwholesome effect on the jury system.
Urban America poses other problems for the jury system that could not have been foreseen by the Founding Fathers. Media coverage of newsworthy cases has become so pervasive that picking an untainted jury can take weeks or sometimes even months. A new profession of jury consultants has learned to use sophisticated polling techniques that can help trial lawyers select juries that are loaded in their favor. Jury trials in high-profile cases are often so complicated that defendants who can afford expensive legal teams have an advantage, feeding a public perception that the system favors the rich.
Despite the problems, the jury system is on a sound footing in the United States. Jurors wield the awesome power of the state to punish, or not to punish, citizens. In that sense, they stand above the sovereign — and that has made them the subject of fascination around the world.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.

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