Hastings Law Journal Volume 47 | Issue 5 Article 3 1-1996 Unpacking the Jury Box Kenneth S. Klein Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Kenneth S. Klein, Unpacking the Jury Box, 47 Hastings L.J. 1325 (1996). Available at: https://repository.uchastings.edu/hastings_law_journal/vol47/iss5/3 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Unpacking the Jury Box by KENNETH S. KLEiN* The problem with democracy is that the wrong people vote.' Introduction The contemporary pressure for jury reform is based on a false premise that in turn holds out the false promise of positive change. This Article will identify an alternative source for our dissatisfaction with the jury system and investigate the implications of this phenome- non for the current jury reform discussion. In these days where each month brings a new trial-of-the-century, there is escalating public distrust of the value of the jury trial.2 The conventional explanation lies in the increasing belief that the typical jury is incapable of making the difficult decisions called for in many * Assistant Professor of Law at New England School of Law. J.D. University of Texas (1984), B.A. Rice University (1981). This Article is dedicated to the Honorable Harold Barefoot Sanders, Jr., who has for twenty years reminded the author that power and integrity are not incompatible. The author is particularly grateful for the invaluable assistance, comments, criticisms, and input of Professor Lisa M. Black of Roger Williams University School of Law, and of the faculty and library staff of New England School of Law. The author thanks the Dean and the Board of Trustees of New England School of Law for the generous research stipend that helped make this Article possible. There were numerous others who, through their efforts, helped improve this Article, including Profes- sor Akhil Amar of Yale Law School, Professor Mark Brodin of Boston College School of Law, the National Center for Justice, my research assistant Daniel Goldman, Professors Peter Kostant and Matthew Harrington of Roger Williams School of Law, Professors Ke- vin Cole and Michael Kelly of the University of San Diego School of Law, Professor Fran- cisco Valdes of California Western School of Law and attorney Brian Foster of Gray, Cary, Ware & Freidenreich. 1. This quote is apocryphally attributed to Thomas Jefferson in the wake of an elec- tion defeat to George Washington, but no source exists to confirm the attribution. 2. Except where noted, this Article will not distinguish between civil and criminal juries. An article by Professor Colleen Murphy describes how American jurisprudence's questionable assumption of a theoretical dichotomy leads to a lack of an integrated theory of jury authority, and she provides a compelling argument for such an integrated theory. Colleen P. Murphy, Integratingthe ConstitutionalAuthority of Civil and CriminalJuries, 61 GEO. WASH. L. Rnv. 723 (1993). Professor Murphy argues that to the extent there is currently an incoherence in jury theory, this is a new development, as the Founders did "not differentiate between civil and criminal juries." Id. at 742-43. [13251 HASTINGS LAW JOURNAL [Vol. 47 trials. This explanation assumes first, that the "purpose" of juries is to reach accurate verdicts for the litigants and for society, and second, that juries are failing at the task. Both assumptions are misplaced. The "purpose" of the jury sys- tem is far more involved than simply efficient decision-making. More- over, empirical evidence suggests that juries are at least as capable as judges in reaching "accurate" decisions. This empirical evidence strongly suggests that societal distrust of juries cannot be adequately explained by the shortcomings of our jurors. There is, however, another, more plausible dynamic that may be responsible for public mistrust of juries. This dynamic is an outgrowth of the increased diversity in our society and among our jurors-not merely race and gender diversity, but social and economic diversity as well. Individuals divide their world into "us" and "them."'3 Whenever those with power over "us" include within their membership or con- stituencies "them," "we" are uncomfortable and resistant. The mod- ern perception of the jury is a manifestation of this dynamic. As the diversity of our society and its jurors has increased to the point that litigants can expect jurors unlike themselves, the pressure has risen to restrict the power of juries. The concept of a jury with restricted power varies greatly from what the Founders envisioned when writing the Constitution. In the Founders' time of greater homogeneity in society, the enemy of free- dom was most likely to manifest in an unchecked tyrannical govern- ment. The jury was conceived as the representative of the community in the courtroom, the counterweight against the government's repre- sentative, the judge. The Founders saw the jury as the most demo- cratic institution, and they delegated to the jury power commensurate with that vision. The aftermath of the Civil War marked the emergence of a sec- ond conception of the role of the jury, which instigated the first seri- ous pressure for restricting the power of the jury. In the wake of the Civil War, whether because of it or merely coincident with it, the ho- mogeneity of those with "voice" in society began to erode, and the jury began to reflect that diversity. "Voice" is the term this Article will use to express the notion of being a part of the political process. For example, from the beginning 3. See Kenneth L. Karst, Citizenship, Race, and Marginality, 30 WM.& MARY L. REV. 1 (1988); Kenneth L. Karst, Paths to Belonging: The Constitution and Cultural Iden- tity, 64 N.C. L. REV. 303 (1986); Kenneth L. Karst, Boundaries and Reasons: Freedom of Expression and the Subordination of Groups, 1990 U. ILL. L. REV. 95 (1990). July/August 1996] UNPACKING THE JURY BOX of this nation, if a white male land owner felt aggrieved by the system, he would have access to expressing displeasure and, to one degree or another, might have the ability to do something to change the system. As time has passed, more and more constituencies in society have gained some degree of access to power and influence in the political milieu. This access is what this Article means by "voice." In the aftermath of the Civil War, the diversity of constituencies with voice expanded. The traditionally powerful constituencies in so- ciety could no longer rely on receiving a jury made up of those most like themselves, and consequently began to distrust the jury. These traditional constituencies generated reforms designed to restrict the power of juries, in order to protect their interests in the face of a po- tentially less sympathetic or outright hostile jury. Today, there is a third evolution in our conception of the role of the jury. Although similar in theory to the Founders' original vision, this model creates tension when applied in a contemporary context. The diversity of jurors continues to increase, and so too does the di- versity of constituencies with voice in the community. As a result, there inevitably can be some constituency with the power to protest effectively, rejecting virtually any verdict a jury reaches in a case. The jury cannot satisfy all constituencies because the jury is expected to represent the entire spectrum of often discordant voices in the com- munity, yet reach a verdict that the entire community can view as "ac- curate." The jury is doomed under this scenario to a perception that it is failing, and the pressure for jury reform is predictably intense. Because the contemporary expression of dissatisfaction with ju- ries, however, has focused on the perceived shortcomings of juries in reaching accurate verdicts, rather than on the tension caused by in- creased diversity in the community and in the jury, the suggestions for jury reform are flawed. Virtually every one of these reforms is corro- sive to the democratic functions of the jury. Because the reforms can- not be justified on the basis of more accurate verdicts, the reforms bear special scrutiny as potentially anti-democratic. For this reason, the continuing pressure for reform will test the dedication we have to the democratic ideal. It was easy to talk of democracy at the founding of the nation-there was no diversity among the empowered segments of society or the citizens eligible for jury service.4 Today's diversity will test the courage of these convic- 4. See FRANcis H. HELER, THE Sixm AMENDMENT TO THE CONSTITUTION OF THE UNrTD STATES: A STUDY IN CONsTTONAL DEVELOPMENT 16-24 (1951); CHILTON WILLIAMSON, AMERICAN SUFFRAGE: FROM PROPERTY TO DEMOCRACY, 1760-1860, at 92- HASTINGS LAW JOURNAL [Vol. 47 tions. This Article looks beyond the simplistic accusation of jury in- competence and the panacea of reforms that have been derived from that accusation, and measures those reforms against the idea of the jury as a democratic institution to identify which reforms promote more voice in the discussion and which reforms silence diversity of 5 voices. I. Diversity as a Cause of Contemporary Distrust of Juries A. The Theory: Diversity Has Led To Distrust Are juries broken? Perhaps the logical starting point for addressing this question is a recognition that, for the most part, it is still widely acknowledged that juries do much that is right. Most of the debate is about how well juries work. Much less debate exists about the integrity of jurors.6 There does not appear to be any general suspicion that jurors are rou- tinely bribed, intimidated, or otherwise compromised.7 This fact alone is a remarkable tribute to either the strength of the American social contract or the naivete of our belief that juries are doing their 137 (1960).