In The Hands of the People
I
THE ENDANGERED JURY
Trial by jury, enshrined in the United States Constitution and guaranteed by every state's laws, has deep roots in American life and at first glance might seem imperishable. But we could wake up one day to find that the great old tree has fallen. If that happens, the power to decide cases--to apply the law to flesh-and-blood people who are prosecuted or who bring their disputes to court--will fall exclusively into the hands of judges or other government officials. And if it happens the cause will be not a tyrant's ax but a long and scarcely noticed process of decay. Indifference, in the long run, is deadlier than any coup, and democratic institutions are easily lost through neglect followed by decline and abandonment. The trial jury, long neglected, is at the first stage and verging on the second. So far we have let it suffer without paying much heed, and we need to look at what is happening, and why, and what we stand to gain or lose.
The founders of the American republic would be surprised to learn that the jury's survival is in doubt. When they wrote the Constitution, trial by jury was widely seen as "the very palladium of free government," to use a phrase from The Federalist Papers, and would no more have been abandoned than would the ballot box. Thomas Jefferson, while serving as ambassador to France, wrote in a 1789 letter: "Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative."
Today Jefferson's ranking is reversed: everyone understands that elections are vital in our republic, but many think the jury is expendable--"a howling anachronism," as one critic puts it.
Let's imagine that a group of eminent business leaders, public officials, scholars, and journalists were to propose that the United States abandon elections and let panels of experts govern the country. "Elections were fine when the Constitution was written," they might say, "but they have outlived their usefulness. Issues were simpler back then and nobody could vote except white male property owners. Now everybody can vote and the tasks of government are just too complex for ordinary people to understand. Often they get confused and elect the wrong candidates. They are easily swayed by irrational appeals to emotion and narrow self-interest. The voter-initiative process, in the states that have it, is distorted by money; in fact, campaign finance abuses corrupt the whole system. The public doesn't really care--only about half the eligible adults bother to vote in presidential contests and even fewer in other races. So let's drop the pretense. Let's get rid of elections and let the experts run the government with efficiency, economy, and superior knowledge and judgment."
There would be an uproar. The promoters of this idea would be denounced as radical, even traitorous, and drummed out of the TV talking-head shows.
Yet a similar proposal, based on similar arguments, is being floated about trial by jury and is quietly gaining ground. Calls for jury abolition are heard with increasing candor and frequency, even though the jury is as much an institution of self-government as is the election of our officials. To abolish the jury would be to take from the people one of their basic rights. There is no uproar--at least, not yet.
The late Warren Burger, Chief Justice of the Supreme Court, for example, recommended that we drop the civil jury in favor of bench trials, at least in complex cases. A bench trial is one decided entirely by the judge; there are no jurors in the box. In criminal cases, according to Michael Lind, a senior fellow at the New American Foundation and lecturer at Harvard Law School, "[t]he American jury system does not work to free the innocent and punish the guilty in an efficient and humane manner. It never has." Juries are "fundamentally dysfunctional,"says Delaware judge John Babiarz, who led a state court task force on the subject.
Such critics maintain that the jury simply lacks competence and we should admit that, forgo sentimentality, and make the necessary changes.
Other experts do not call for abolition but see a crisis at hand. "I think the American jury is in serious trouble," says psychology professor Valerie Hans, a defender of the jury and a leading authority in the field. "Our democratic institutions are foundering, and the jury is among them," writes law professor Albert Alschuler. Federal appellate judge Richard Posner predicts that "in the long run the jury, or at least the civil jury, is probably doomed."
The signs of trouble appear throughout the country but most vividly in major cities. Public confidence in criminal prosecutions has been shaken by acquittals and hung juries in high-profile cases where, from a distance, the evidence seemed to many to be conclusive of guilt. There is a recurring demand--by California's former governor Pete Wilson, among others--that the unanimous verdict requirement be dropped to make convictions easier. Some observers propose the use of quotas to achieve racially balanced juries--a step that would admit defeat in our pursuit of justice without regard to race, creed, or economic condition. Juries of fewer than twelve, used in some jurisdictions, reduce both the reliability and the prestige of verdicts. Plea bargaining has replaced criminal trials so extensively that only 4.3 percent of federal criminal charges now end in jury verdicts, compared to 10.4 percent in 1988.
The criminal jury's future is far from certain, and the civil jury is even more clearly at risk. Some courts are overturning verdicts more freely than in the past--giving less weight, that is, to the jury's evaluation of the evidence. In Texas, for example, the state supreme court's reversals of verdicts awarding damages to injured claimants have caused dissenting judges to complain of "a steady erosion of our right to trial by jury."
In recent years some courts have removed whole areas from the civil jury and placed them in the judiciary's hands, including cases involving bankruptcy, employee benefits, the meaning of words in insurance policies, consumer protection, fraud, and the weighing of evidence to see whether it supports a plaintiff's verdict or is "equally balanced" so as to require a defense verdict. "There is absolutely a trend of taking issues away from the jury," says law professor Nancy King. These shifts of power from juries to judges are made, ordinarily, on statutory or constitutional grounds, but sometimes with an expressed skepticism about jury competence. The United States Supreme Court in 1996 sounded an ominous note in holding that the question of what a patent means must be kept from the jury and decided by the judge. This ruling was based largely on history--an attempt to discern what was intended in 1791, when the federal jury trial guarantee was adopted--but the Court added a functional reason: "[J]udges, not juries, are the better suited to find the acquired meaning of patent terms." That comment seemed to echo the attempt by several courts in the 1970s to carve out a "complexity exception" to the right to trial by jury--to let the judge decide that a case is too complicated for jurors to understand, and that a bench trial must be used.
Judges also are responsible for the expanded use of summary judgment, a type of order cutting short a civil case because the losing party has failed to show evidence that would raise a genuine question to decide. A case decided on summary judgment never gets to trial. The technique is legitimate but must be used with care; overloaded calendars can lead judges to convert what should be a scalpel into a meat ax. When that happens, trial by jury suffers.
Legislators in thirty-four states have set caps on damages that can be awarded. These changes in the law of remedies apply to bench trials as well, but are explained as curbs on "runaway juries." "Why have a jury at all?" asked one frustrated member of a jury whose punitive damage award to the family of a worker needlessly killed in a workplace explosion was drastically reduced under state law. And both state and federal legislators have chronically underfunded the courts, contributing tolong delays that diminish the value of trials. Because of the slowness, expense, and risks of conventional litigation, business firms by the thousand are opting out of the court system by using agreements that require customers and employees to submit disputes to private arbitration. The jury suffers a loss of prestige--yet expense, slowness, and damages liability ordained by law are not of its making.
There are widespread beliefs, encouraged by media coverage and interest-group campaigning, that juries are easy marks for injured claimants and award excessive damages; that they cannot understand complex evidence; that they succumb to any appeal to sympathy and let off guilty defendants; and that they pay no attention to the judge's instructions on the law and do whatever they feel like doing. These beliefs are false, and ironically the same citizens who hold them, when they serve as jurors, prove they are false. But institutions held in low esteem can slip away more easily than those we revere. The low rate of response to jury summonses in many cities is worrisome because it shows a breach between citizens and a method of self-government that requires their participation. The jurors who show up do well, but the system needs a fuller response from the American public in all its diversity.
Our adversary system assumes that a spirited competition to persuade will best lead to justice and community satisfaction, and it gives the parties and their counsel unparalleled independence and freedom in conducting their cases.That has been the prime source of its strength over the centuries.
Today it has troubles, but they arise not from the jury but from the way we manage adversarial justice. We have problems of expense, delay, trial quality, and access to justice, but to treat these by abandoning the jury would be like amputating an arm to cure a case of influenza. The problems exist as well where there is no jury--in the thousands of bench trials held each year. If we held only bench trials--if the jury did not exist--we could make the needed improvements with a lower sense of urgency, secure in the knowledge that trials are bound to continue and judges, one way or another, will continue topreside over them. But we do have the jury, and the looming danger is that we will lose it if we move too slowly or incompetently to improve the system that surrounds it.
That is happening in England, birthplace of the jury, where decades of indifference, and a lack of constitutional protection, have driven the civil jury almost to extinction and reduced the criminal jury's scope and prestige. The English jury's decline continues; there is official pressure to take still more types of criminal cases away from it. The result, as one authority puts it, is "a different brand of justice altogether"--a brand that we should not accept unless we are sure we want it.
In the United States the jury's erosion is all the more dangerous for being largely unnoticed. "For the first time in our country's history, the future of the jury system is in serious jeopardy," says Ronald Jay Cohen, chairman of the American Bar Association's Litigation Section. "It's happening quietly in state after state, in court after court, and in several different areas of the law. But make no mistake, the right to trial by jury is slipping away."
We can reverse the trend, but first we must decide whether we want to. We need to step back, remember how we got our system and what it has achieved in the past, assess how it is working now, and understand how it brings benefits beyond merely placing verdicts in the court file. The debate over the jury is not just about current events but about the fate of an institution that has been with us throughout American history and that began centuries before European settlers reached this continent. What is it all about, this running battle of words that so intrigues us that every day's newspapers are filled with it? Why is it forever being re-created in novels, movies, and television shows? Why do we let ordinary citizens decide cases in the first place? Is what we have worth preserving? To answer, we must start at the beginning.
IN THE HANDS OF THE PEOPLE. Copyright © 2002 by William L. Dwyer. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. For information, address St. Martin's Press, 175 Fifth Avenue, New York, N.Y. 10010.
