Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Wednesday, October 26, 2005

On Juries

Reader MarkPele introduces the following concerns regarding the jury system; I'll see what I can do with them:

Apparently, the jury has the right to basically declare a defendant non guilty because the law itself is somehow unjust (or has the ability to decide whether the judge, in fact, interpreted the law correctly). Now, judges and even lawyers who smell this rat will often kick jurors out of the pool for this reason. There are really two questions I have regarding this: 1) When did "trial by peers" become trial by the 12 jurors I didn't kick off because they were too smart, wise, moral or I just didn't like, and 2) Let's say that I'm a juror that holds the viewpoint above. Can I sue the judge/court for kicking me off said jury, since he is, by kicking me off the jury, depriving me of a guaranteed right? 3) Can I be kicked off the jury for a) refusing to vow that I will interpret the law as the judge gives it, or b) vowing and then choosing to interpret the law otherwise.

BTW: I'm not advocating refusing to judge any law, but if you were asked to be a juror in a, for example, PATRIOT ACT or DMCA, jury, should you be bound to [???]

I don't think I can assess these queries as stated, because as I read them they embed a couple of critical presumptions that I don't believe to be the case. First -- and foremost -- though I'm heartened that you think of jury duty as a "right," but actually it's a duty. Nowhere are you guaranteed the right to be a juror. You are, of course, with some limitations ensured the right to a trial by jury, but that's obviously a wholly different matter.

Second, with some partial caveats more subtle and narrow than I believe this discussion requires, jurorss are not supposed to interpret the law. Jurors serve as fact-finders, and their task is to weigh the evidence, assess its credibility, and then apply the law to the facts. They law they have the duty to apply is not the law as they perceive it or wish it to be. Rather, jurors apply the law as the trial judge explains it to them. For those who have not had direct contact with real-life trials, it may be somewhat of a surprise to learn that jury deliberations are always preceded by what is sometimes a quite lengthy recitation of the law by the trial judge, setting forth all of the principles that circumscribe their deliberations. Trial judges err in this phase but that is not a matter for the jury to assess. That assessment falls to the appellate courts. For a juror properly to discharge his duty, he must treat the jury charge, the judge's explanation of the relevant legal principles, as gospel.

Where jurors disagree with the law, that should come out in voir dire, but it may come out later, and that's one of the reason alternate jurors typically are empaneled. Just in case it emerges that one juror or another simply cannot abide the law as it is explained to him. To my knowledge, and my ears are still wet I readily concede, for-cause dismissals of prospective jurors are functionally unlimited. Thus, if you empanel fifty jurors who confess objections to USA PATRIOT Act provisions in a case implicating that act, all will be excused for cause either by the court on its own motion or by motion of whichever party raises the matter.

All of that prefatory matter out of the way, I'll take up those questions that remain:

When did "trial by peers" become trial by the 12 jurors I didn't kick off because they were too smart, wise, moral or I just didn't like[?]

I'm not really sure what this means, but it is a common misconception, consistently rejected by every court in the land, that a jury of one's "peers" means people of the party's particular ethnic or demographic profile, moral background, etc. This is a diverse polity, and one's peers aren't just those of one's particular beliefs. Furthermore, the right to a jury typically may be waived. If you don't like the jury pool, you're welcome to proceed to trial with the judge tasked to assess the facts. It's a common practice, and notwithstanding recent alarmism about thenature of judging in this country, in real life judges are overwhelmingly ethical, moral individuals who do their very best to effectuate substantial justice under the law. The vast majority of litigation in this country is straightforward, not terribly loaded politically, and all about common sense.

With regard to your remaining inquiries, to sum up what I've already said, Yes, you may be dismissed from a jury for signaling that you will not uphold the law as related by the trial judge. Indeed, a failure to do so often will be reversible error, and result in the award of a new trial on appeal. And No, you can't sue for this. You are not entitled to serve on a jury at all, and you certainly aren't entitled to serve on a jury just to undermine the effectuation of the law as currently understood by those authorities with the prerogative to interpret the law.

As for myself, I consider it a high honor to serve on a jury, and it would be ridiculous for me to talk myself off a jury based on policy objections to particular laws since I already chose to enter a profession that requires me to vow to uphold the law in my every professional action every day. Indeed, it would be quite a non sequitur for me to take a day off from my job, where I interpret and apply the law every day, just to show up for jury duty and signal to the court, of which I am an officer, that I don't care for the law and won't apply it faithfully.

I'm not saying I can't imagine a situation where my moral commitments might conflict with my professional duty -- indeed, it's very easy for me to imagine such a situation -- but nobody made me become a lawyer, and so typically my sense of duty wins out. I can always get a different job if I don't like what I'm doing; that much is on me, not on anyone else. Nor is it the concern of government, except insofar as I have the power to change the law through democratic action.

Hope this clarifies things, and if I've misunderstood your questions I hope you'll elaborate.


Anonymous Yaga said...

[I]t is a common misconception, consistently rejected by every court in the land, that a jury of one's "peers" means people of the party's particular ethnic or demographic profile, moral background, etc.

The guy has valid question, and valid a point, though I don't know if he meant to imply, as I will say outright, that the American legal system lost something precious when it began treating Common Law like a red-headed step-child.

The notion of a trial jury of one's peers began with the Assize of Clarendon back in 1166 as an extention of the previous century's jury of recognators, which in turn would become the modern grand jury. Both of these were axiomatically one's peers insomuch as they came from the same hundred, or at least the same county, as the participants in the trial.

I would assume, though I can't say for certain, that the movement towards the modern trial jury began in 1215 due to a combination of legal changes both in Canon Law as well as, less significantly, the reification of feudal custom inherent in Magna Carta.

Regardless of specific origins, once trial juries became responsible for not only hearing the facts of the case but also determining the burden of responsbility and therefore handing down a verdit, the 'trial by one's peers' in the 'classic' sense came into being.

These juries did have great power in regards to personal interpretation of common law and local custom, which they would enjoy through, I believe, the 17th or 18th century.

As for the development of antagonistic voir dire practices specifically, well, that gets into American law, of which I know very little about. The English system of Common Law still consists of a single phrase, "Can you give a fair hearing to both the crown and the defense?" which, iirc, became standard either during or after the Glorious Revolution in 1688.

My baseless, armchair assumption is that the rise of urbanism in America, the development of the ABA, and the sweeping aside of Common Law's customs in favor of clearly defined state and federal laws together empowered attorneys to extend voir dire and, as American culture is wont to do, took it to the extreme that we are now familar with.

1:40 PM  
Anonymous Yaga said... internal gramar Nazi impells me to point out that there should be a comma between "1166" and "as"; the trial jury was an extention, not the Assize itself.

1:42 PM  
Blogger Moon said...

Conversely, my post should be recognized to consider really only the import and nature of the contemporary jury. I'm in no position to dispute Yaga's historic discussion, though it very generally comports with my background knowledge on the subject. Always nice to have a historian around, especially one with a substantial knowledge of touchstones in English law.

That said, I'm not sure the profligate historical discussion explains the various propositions of your last paragraph (and your red-headed stepchild reference (though to be fair, a R-H SC reference is pretty much always funny)). The commonlaw is not, perhaps, what it once was, but ours hardly is a civil system, especially at the state level. The commonlaw still informs interstitial regions of law uninformed by statutory law, and further informs issues of constitutional and statutory interpretation. Thus, to my knowledge, while the commonlaw now has bedfellows it hardly has been swept aside.

I'm also not clear on how contemporary voir dire is flawed, or why it's objectionable that the court (and typically it is the court that is responsible for the dismissal of jurors for cause (as opposed to peremptory dismissals, a few of which belong to each party to exercise at its pleasure); voir dire, though schematically adversarially, is not formally so in the way a trial is) should ask after, and dismiss based upon, any legal predispositions or general biases that might corrupt the carefully contained deliberative process. Our system also calls for the recusal or disrobing (as it were) of judges for the same reason. Recusal is called for upon discovery of a conflict of interest, and removal from office is typically a solution to a judge who refuses to follow the law.

The English version of "peers" resulted in juries slanted toward particular interests pertaining to land ownership, caste, and so forth, and so were no fairer, and probably considerably less fair, than contemporary juries. A crime under the law typically has an adverse effect on every one, of whatever creed, predilection, or station, and the governing principle in American jurisprudence is that one is entitled to have the laiety sit in judgment of the facts rather than some ivory tower official who is a servant of the state.

It's a hedge against the concentration of power, an inherently democratizing force, but in this, as in everything else, the American system is designed (and that's not to say it succeeds) to set speedbumps in the road between here and mob rule. A jury without a clear mandate and an effort to ensure its qualifications (which has more to do with its understanding of its duty than it does with education or anything else of that sort) is nothing more than a mob.

From there to trial by ordeal is but a few short steps.

1:59 PM  
Anonymous Yaga said...

The English version of "peers" resulted in juries slanted toward particular interests pertaining to land ownership, caste, and so forth, and so were no fairer, and probably considerably less fair, than contemporary juries.

I cannot dispute this at too much length since my familiarity with typical, day to day juried trials in the US is slight. All that I might say, as well, is based on otherwise anecdotal evidence concerning the predisposition of white juries to find black defendants guilty more often.

A crime under the law typically has an adverse effect on every one, of whatever creed, predilection, or station

Well, in criminal proceedings certainly: The State vs John Doe. In such instances I entirely concur, with the above caveat intact. In civil proceedings however I would argue that the state is intrinsically not harmed; Jack Doe vs John Doe indicates a preclusion of the state 's interest.

[T]he governing principle in American jurisprudence is that one is entitled to have the laiety sit in judgment of the facts rather than some ivory tower official who is a servant of the state.

I may be misunderstanding but this seems contrary to your previous argument; if judges, as servants of the state, impose the law upon juries, does that not impinge upon the laiety's ability to judge the facts of the case? I'm thinking here specifically of instances of nullification, but more generally on the jury's ability to pronounce verdicts responsive to both the facts and the law, and not to the law alone. I may be misunderstanding your point however; do you see arole in the jury trial to judge the law as well as the facts, as judges themselves can do in appeal, or is the enumerated right of the judicial branch to revoke the work of the legislative branch reserved only for those "ivory tower official[s]" who have completed their JDs?

From there to trial by ordeal is but a few short steps.

Ooh! Ohh! You've unwittingly fallen into the trap of my undergraduate thesis. Muwahaha!

The notion of ordeal appealed to the system of law existant in the early mediveal period precisely because it obviated those otherwise empowered to determine innocence or guilt from making their judgements. The role of the 'jury', insomuch as that term can be anacronistically applied to the witnesses to the result of the ordeal, was merely to apply the facts at hand to the demands of the law.

Trial by ordeal fell out of favor for a variety fo reasons too intricate to go into here in any detail, but I feel the general circumstance supports the notion of allowing juries a greater hand in determining the relevancy of the law to the facts of a case. I'll conclude with a short example wich I feel tangibly demonstrates the appeal and use of the jury over the ordeal:

When the law changed such that the recogators of the grand jury (and later the trial juries) were called upon to determine the value of goods stolen by the accused, they invariably set the value at 11 shillings and 11 pence. This was not coinicidental; the law differentiated between theft, a trespass or 'misdemeanor', and burglary, a felony, based on the vaue of the goods in question. To steal 12 shillings worth of goods was a felony and carried a sentance of death; to steal 11s/11d was merely theft and required the guilty to provide restitution.

So the appeal of the jury to those who had previously been given justice by the ordeal was that the jury system allowed the plantiff and defendant both to argue to issue, where the previous systems, most notably the trial by ordeal, did not.

At the risk of being pendantic, the value of the jury system lay in its ability to suborn the law of the state in favor of local custom and local needs. By extracting the local particularies of 'one's peers' you do risk 'mob rule,' but to wholly deny local, particular interests in deference to those of the state you too risk the opposite extreme of tyranny.

And on that charged endnote, I offer you the floor.

4:05 PM  
Blogger Moon said...

Ooh, you're fun. I will be back to address this. It might take a day or two, as the gauntlet you've thrown is weighty and my time is short.

In any event, to reprise a quotation I used in a recent thread, I fear that I am the inchling before a ten-foot poet.

Your thesis {he grumbles}. Just my luck. ;-)

4:23 PM  
Anonymous MarkPele said...

Two comments, one taken shamelessly from the site I found the info from:

"As recently as 1972, the U.S. Court of Appeals for the District of Columbia said that the jury has an " unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.... (US vs Dougherty, 473 F 2d 1113, 1139 (1972))

Or as this same truth was stated in a earlier decision by the United States Court of Appeals for the District of Maryland: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic of passion, the jury has the power to acquit, and the courts must abide by that decision." (US vs Moylan, 417 F 2d 1002, 1006 (1969))."

The other is that I have two examples of cases where this happened. When I was in college, I served on a jury. The process of jury selection was relatively simple. We each stated our occupations, and whether we had a "problem" with alcohol. They then asked if anyone knew any of the people involved in the case - one woman recused herself because she knew the defendant's attorney. Then a few more people got kicked off the jury - one was a pastor, I remember. In the other case, a Computer Scientist co-worker of mine was called to be on a jury. When he mentioned his profession, the prosecuting attorney basically went through the entire logic of the case (names disguised, etc.) and tested it against my co-worker. My co-worker explained all of the logical fallacies, etc. For some reason, my co-worker was kicked off the jury. The other great example is the O.J. Simpson trial, where the jurors were as close to rocks as anyone could find. So, why is this? Well, the attorneys want a jury that can be swayed by emotion. That means that they don't have to "prove" the case, they just have to stir up the right emotions. If you find intelligent jurors, then the case is going to be decided on the facts. BTW: I stated my occupation as "student", not "engineering student".

So now, the question is this: If I take the quotes above to be the proper interpretation of law, and I want to serve on the jury, then is the judge, in fact, overstepping his bounds when he requires me to swear an oath in opposition to the established precedent above?

8:18 PM  

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