Trial by Jury
Background Article
The Citizen's Jury
By Hannah Leiterman
The jury of one’s peers is a cornerstone of the principles of democratic representation set out in the United States Constitution. It offers U.S. citizens both a vehicle to shape our government as jurors, and protection to us as the accused. In Duncan v. Louisiana, the 1968 landmark Supreme Court case extending the right to trial by jury from the federal Bill of Rights to the states, Justice White wrote that “providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.” The Supreme Court has played an important role in the last two centuries in making the jury truly fair and truly representative, by outlawing the exclusion of non-whites, and later women, from jury lists; by limiting the powers of lawyers and judges to exclude individuals from juries; and by expanding the safeguards against outside influence on the jury. By looking at justice before the jury system, the early history of juries, and the evolution of the modern American jury, one begins to understand what an important role it plays in meting out fair justice to the individual.
The Roots of the Jury in England and the Colonial United States
The earliest roots of the jury system scarcely resemble the modern jury of one’s peers. In the 12th and 13th centuries, civil and criminal disputes were commonly settled by battles and ordeals-in which the accused might be compelled to dip his hand in boiling water to see if it became infected-under the assumption that God would intervene on behalf of the right or innocent party. By the time Pope Innocent III forbade priest involvement in ordeals (thus taking away their holy sanction) in 1215, a jury system was loosely in place in Norman England, in which the King’s court chose twelve people to testify as to what they knew about the facts of a case or the character of the parties involved. Over the following centuries, the role of the jury shifted; jurors gradually took on the role of witnesses in this “presenting jury,” and then offered a final verdict of guilty or not guilty. The inherent conflict in these two roles encouraged English Parliament in 1352 to pass a statute allowing jurors ruling on guilt versus innocence to be excluded if they had presented evidence. Eventually, jurors were not expected to know the facts of the case-witnesses were brought in to testify-but to determine the facts.
In colonial America, the jury became a vehicle for the colonists to assert new ideas and principles, particularly in cases of conflict with the Crown (Hans, 1986: 32). In the 1732 trial of John Zenger, a newspaper printer accused of printing articles critical of the King, important precedents were set for the role of the jury. In that case, the jury was asked only to determine whether Zenger had in fact printed the newspaper in question; a judge sympathetic to the King would decide whether he was guilty of sedition. Andrew Hamilton, on Zenger’s behalf, argued that the issues in the case involved an “intertwining of law and fact,” (Hans, 34) and argued more generally for an expanded role of the jury: “Jurymen are to see with their own eyes, to hear with their own ears, and to make use of their own consciences and understandings, in judging the lives, liberties, or estates of their fellow subjects.”
In the following decades, the role of the jury and the jury selection process came to the forefront of public discussion, and several states passed legislation dealing with jury selection in order to thwart British attempts to stack juries with royalists. After the revolution, juries were seen as having even greater importance. Thomas Jefferson wrote: “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. The execution of the laws is more important than the making of them.”
The Modern Jury
Today’s jury system is very much the product of the social change that has followed the writing of the Constitution, the development of state and local laws, and Supreme Court decisions that sought to provide its protections to everyone (see box). There are two forms of modern jury with two distinct purposes: the grand jury assesses evidence in criminal cases and issues a decision as to whether the prosecution may indict an individual; the petit jury decides guilt in criminal cases, or liability and monetary damages in civil cases. The grand jury does not exist in every state; in fact, only 14 states require grand juries to issue indictments for all criminal prosecutions. Grand juries listen to evidence only for criminal cases. They are composed of between 6 and 23 jurors, hence the name grand, from the French, and serve for a period of time (often several months), potentially hearing many cases. The jurors don’t have to agree unanimously for the prosecutor to issue an indictment, in many places a 2/3 or 3/4 majority is required, in some states as few as 12 of 23 jurors can prosecute. Petit juries, or trial juries, are smaller-usually 12 people, based on the English model-though the number of jurors varies by state. In criminal cases, they must reach guilty verdicts unanimously, but in more than a third of the states, only an extraordinary majority is needed to render a verdict in civil and minor criminal cases [for exceptions, see Key Jury Supreme Court Cases]. If the jurors cannot agree on a verdict, a “hung jury” occurs, and a new trial is held, or the case may be dismissed.
The list of potential jurors in a community, the venire, is generally taken from driver’s license and/or voter registration lists. The only people not eligible to serve on juries are the mentally ill and non-citizens, though in many states those individuals with jobs deemed important to society-teachers or doctors, for example-or those whose jobs would be put in jeopardy by a long absence-small business owners, for example-as well as non-English speakers, are excused from jury service by statute or practice. In the American jury system, jurors undergo a pre-selection voir dire process, meaning “to speak the truth,” in which the lawyers for both sides and/or the judge question potential jurors to determine whether they might be biased or unfair. Both defense and prosecution can dismiss jurors for cause, if for some reason the juror might be prejudiced. Both sides also have a fixed number (set by statute) of peremptory challenges, dismissals the lawyer can make without providing a reason, though peremptory challenges cannot be used to exclude jurors because of their race or gender.
Once the jury members have listened to all of the trial evidence, the judge gives the jury instructions as to the relevant laws in the case, and reminds them that they must adhere to what the law is, rather than what they think the law ought to be [but see also the discussion of “jury nullification” in the sidebar article]. This is known as the judge’s charge to the jury.
The jurors elect a foreperson or presiding juror from among them to lead deliberations and announce their verdict, and the court provides the jury with written forms of all possible verdicts for the case. Juries generally decide criminal sentence only in death penalty cases. In civil cases, if one side feels that the jury hasn’t correctly interpreted the facts or applied the law, it can make a motion for judgment notwithstanding the jury, in which the judge issues a verdict in place of the jury. After the verdict is given, the jurors are paid a daily stipend for their service, and dismissed to return to their normal daily routines.
Conclusion
Though today juries are used in only about 5% of all criminal and civil cases, they are as fundamental to justice in the United States now as when Hamilton argued for an expanded jury system in 1732. The jury of one’s peers acts as an important check where a defendant fears that the local justice system may have a prejudice against him, or in corruption cases in which the judiciary itself may be implicated. Supreme Court cases through the years have consistently shown that a group of individuals from similar circumstances to those of the defendant are best able to “extend mercy where mercy is called for, and to mete out individualized justice” (Gobert, in Hall, 1992: 880). A jury that includes one or more African Americans will probably be better able to understand the circumstances of an African American defendant who claims to have been targeted by police, just as a jury of both men and women will be better able to understand the experience of a woman convicted of assault against an abusive husband. Juries also serve as an important way for U.S. citizens to maintain an active role in their government; jury service gives individuals first-hand experience with the legal system and generates support for it. DeTocqueville, visiting the United States in 1831, remarked that the American jury system served to “communicate the spirit of the judges to the minds of all citizens," and had the unique effect of educating the citizenry about the law (DeTocqueville, 1994: 284).
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