This essay, originally written for a Swiss volume, and revised with added material for publication in the Chicago Kent Law Review, is intended to provide in brief compass a review of much that is known about the American jury system, including the jury's historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel's seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury's status as a one shot decision maker largely independent of trial court bureaucracies than in its ability to nullify the law. Despite flaws in the jury process and room for improvement, the message that emerges from the literature is that juries take their job seriously and for the most part perform well. There is little reason to believe that replacing jury trials with bench trials or mixed tribunals would improve the quality of American justice, and some reason to think it might harm it.
The institution of the jury underwent radical change in the United States during the nineteenth century. At the beginning of the century, the jury trial was a form of popular amusement, rivaling the theater and often likened to it.The jury’s ability to find law, as well as facts, was widely if inconsistently defended. The trial’s role as a source of entertainment, and the jury’s ability to nullify, were consistent with a view of forensic oratory that emphasized histrionics, declamation, and emotionally charged rhetoric as means of legal persuasion. By the end of the century, judges had gained more control of the law-finding power, and various questions of fact had been transformed into questions of law. Many of the details that would have aided the lawyers’ dramatic efforts were screened out by a host of new exclusionary rules. The overall effect was to afford less scope for lawyers' emotional excesses — and to make those performances seem disreputable and outmoded. As an institution, the trial continued to figure significantly in American culture through the first three decades of the twentieth century. Numerous factors conspired to weaken the trial’s prominence after that time. Although these changes in forensic style have not usually been considered as a part of that narrative, they may have helped to facilitate the decline of the trial, by reorienting its function away from a broadly representative one, and towards one that emphasized dispassionate analysis in the service of objectivity and technical exactitude, appealing to a rather different community, made up of professional lawyers and those laypersons who could appreciate their values.
The jury’s history is interestingly schizophrenic, even paradoxical. On one side is the history of the jury as palladium of liberty, often along with other such palladia, notably habeas corpus. On the other is the history of the jury as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this paradox, regarding it as neither sui generis nor in need of resolution. Instead, it critically analyzes the jury’s schizophrenic history from the perspective of New Historical Jurisprudence, as an illustration of the fundamental tension between two modes of governance, law and police, which ultimately are rooted in the distinction between autonomy and heteronomy that has shaped the conception and practice of government since classical Athens.
Despite the hurdles required to overcome selection effects in analyzing trial results, scholars have studied the effect of judicial ideology and juror race on verdicts. But these variables have never been interacted. Using a two-part selection model and a new dataset of federal civil jury verdicts, this article finds selection effects driven by contingent-fee plaintiff’s attorneys, no effect on verdicts for judicial ideology, and a curvilinear effect of the size of the black population on verdicts.
Civil jury trials are disappearing. In all courts, both state and federal, there is a decline in both the percentage of cases that go to trial and the absolute number of trials — all while the number of claims is greater than ever before. The civil jury trial is losing its place in America’s justice system, with unfortunate consequences: “The decline in jury trials has meant fewer cases that have the benefit of citizen input, fewer case precedents, fewer jurors who understand the system, fewer judges and lawyers who can try jury cases — and overall, a smudge on the Constitutional promise of access to civil . . . jury trials.” However, despite the many factors contributing to the decline, there may be a way to invigorate the civil jury trial and restore its vital place in America’s justice system. This Comment proposes the adoption of short, summary, and expedited (SSE) civil jury trial programs in response to the decline of the civil jury trial. These trial programs are a faster and cheaper alternative to the traditional jury trial that still retains many of a traditional trial’s key attributes and benefits. An SSE trial program encourages the use of a jury, shortens the time between initiating the lawsuit and a trial, reduces the overall cost of litigation to all parties, and allows attorneys and judges to gain needed experience — without burdening the already existing civil justice system or violating the constitutional promise of jury trials. Unfortunately, few jurisdictions have implemented these programs, and fewer still have done so in a way that supports the traditional jury trial instead of adding yet another way of avoiding it. Scholarship to date on the topic has yet to provide a complete model of an SSE trial program that has the possibility of reviving the jury trial. This Comment remedies this by proposing a model SSE trial program that incorporates the attributes necessary to help revive the civil jury trial.
This Note examines the claim that judges have improperly granted summary judgment where a reasonable jury could find for the nonmoving party. It begins by reviewing the literature on summary judgment, particularly three opinions the Supreme Court issued in 1986, as well as claims about the propriety of summary judgment in fact-intensive civil rights cases. To test these claims, this Note compiles cases where summary judgment was reversed and where a jury trial was held, which together indicate improperly granted summary judgment. Finding a number of such cases, including a higher-than-projected concentration of civil rights cases, this Note concludes by considering implications for civil rights litigation and federal civil procedure.
Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary citizens serving as jurors engage in unique acts of interpretation, redefining the very concept of the law in terms of their own lived experiences and expectations. In this, jurors serve a democratic function that exceeds their minimalist label as “mere fact finders.”
But in this account of the jury, the people who occupy the jury box matter. To imagine the jury as serving this democratic function is inevitably to turn to a conversation about the identities of the men and women who actually serve as jurors. While courts and scholars speak wistfully of a “representative” jury — one that reflects the community from which it is drawn — this conversation remains dissatisfying, as it seeks to compartmentalize discussions of the jury’s function and the jury’s composition.
This Paper rejects the separation, instead examining the question of the jury’s composition in the context of its proposed function. In the process, a more nuanced theory of jury selection emerges — one that recognizes that while a representative jury matters, the question of what that representation is and precisely why it matters shifts as notions of function shift. The function this Paper explores is the critical interpretive role the jury plays within the democratic lawmaking body. Viewed through this lens, one must first confront the question of precisely which community the jury seeks to represent and how it achieves that representation. In a world in which different communities may bear the disproportional burden of lawmaking and application, different communities may have a different stake in the jury itself. If so, the use of geographically defined jurisdictions to produce venire panels may cease to make sense. Likewise, the value of proportional representation on individual juries, while promoting some functions, may undermine the jury’s democratic viability. Specifically, and perhaps ironically, disproportionate representation on individual juries may actually promote the jury’s democratic function. Even more fundamentally the very definitions of “community” and “identity” become fluid in the context of a democratically driven jury that serves as a forum for citizens to constantly realign their own allegiances as they attempt to apply the law to the defendant and so define the law’s limits in their own lives. In shifting this conversation about jury composition, the possibility of the jury as a unique democratic space emerges.
The soul of America’s civil and criminal justice systems is the ability of jurors and judges to accurately determine the facts of a dispute. This invariably implicates the credibility of witnesses. In making credibility determinations, jurors and judges necessarily decide the accuracy of witnesses’ memories and the effect of the witnesses’ demeanor on their credibility.
Almost all jurisdictions’ pattern jury instructions about witness credibility explain nothing about how a witness’s memories for events and conversations work — and how startlingly fallible memories actually are. They simply instruct the jurors to consider the witness’s “memory” — with no additional guidance. Similarly, the same pattern jury instructions on demeanor seldom do more than ask jurors to speculate about a witness’s demeanor by instructing them to merely observe “the manner of the witness” while testifying. Yet, thousands of cognitive psychological studies have provided major insights into witness memory and demeanor. The resulting cognitive psychological principles that are now widely accepted as the gold standard about witness memory and demeanor are often contrary to what jurors intuitively, but wrongly, believe.
Most jurors believe that memory works like a video camera that can perfectly recall the details of past events. Rather, memory is more like a Wikipedia page where you can go in and change it, but so can others. Memories are so malleable, numerous, diverse, and innocuous post-event information alters them, at times in very dramatic ways. Memories can be distorted, contaminated, and even, with modest cues, falsely imagined, even in good faith. For example, an extremely small universe of people have highly superior autobiographical memory (HSAM). They can recall past details (like the color of the shirt they were wearing on August 1, 1995) from memory almost as well as a video camera. Yet, in one study, HSAM participants falsely remembered seeing news film clips of United Flight 93 crashing in a field in Pennsylvania on September, 11, 2001. No such film exists. Thus, no group has ever been discovered that is free from memory distortions. In one interesting study, students on a college campus were asked to either perform or imagine certain normal and bizarre actions: (1) check the Pepsi machine for change; (2) propose marriage to the Pepsi machine. Two weeks later, the students were tested and demonstrated substantial imagination inflation leading to false recognition of whether they performed or imagined the actions.
Few legal principles are more deeply embedded in American jurisprudence than the importance of demeanor evidence in deciding witness credibility. Historically, demeanor evidence is one of the premises for the need for live testimony, the hearsay rule, and the right of confrontation under the Sixth Amendment to the U.S. Constitution. Yet, cognitive psychological studies have consistently established that the typical cultural cues that jurors rely on, averting eye contact, a furrowed brow, a trembling hand, and stammering speech, for example, have little or nothing to do with a witness’s truthfulness. Also, jurors all too often wrongly assume that there is a strong correlation between a witness’s confidence and the accuracy of that witness’s testimony. Studies have determined that jurors’ perceptions of witness confidence are more important in determining credibility than the witness’s consistency or inconsistency. Another series of studies indicate that demeanor evidence predicts witness truthfulness about as accurately as a coin flip.
Once credibility determinations are made by the fact-finder, it is nearly impossible to overturn those decisions on post-trial motions or appeal. While the secrecy in which credibility determinations are made promotes the legitimacy of fact-finding, it also shrouds its countless failings. Despite years of overwhelming consensus among cognitive psychology scholars and numerous warnings from thoughtful members of the legal academy — judges have done virtually nothing to identify or begin to try and solve this serious problem. The one exception is eyewitness identification of suspects in criminal cases where several state supreme courts have relied heavily on cognitive psychological research to craft better science- based specialized jury instructions.
This article examines in detail and analyzes the often amazing and illuminating cognitive psychological research on memory and demeanor. It concludes with a Proposed Model Plain English Witness Credibility Instruction that synthesizes and incorporates much of this remarkable research.
In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence that that either supported or rejected the reality of this perception, we designed a simple jury simulation experiment to test this as an hypothesis. Using three different case scenarios, each in two forms (one set within a legal malpractice framework and one outside legal malpractice), we found support for the hypothesis in only one of the three scenarios and even there the effects were at best modest. These results held up controlling for other possible factors that might influence juror responses to the case scenarios.
The literature considering various possible procedural reforms to American jury trial practice suffers from a high dose of American Exceptionalism. The experience of other nations rarely is acknowledged, much less considered as possibly informative. This Article argues that as a British-derived system of roughly identical vintage as the United States, the jury practices of Malta can inform American practice in three respects: (1) the desirability of increased juror interaction – in particular allowing oral juror questions to witnesses and allowing deliberation during the trial, (2) the utility of eliminating voir dire in jury selection, and (3) the possibility of procedural reform such as modifying the verdict form to insulate jurors from external pressures on the verdict.