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Rethinking the Jury William & Mary Bill of Rights Journal Volume 3 (1994) Issue 1 Article 3 August 1994 Rethinking the Jury Phoebe A. Haddon Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Criminal Procedure Commons Repository Citation Phoebe A. Haddon, Rethinking the Jury, 3 Wm. & Mary Bill Rts. J. 29 (1994), https://scholarship.law.wm.edu/wmborj/vol3/iss1/3 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RETHINKING THE JURY Phoebe A. Haddon* "In the ideal world perhaps we'd like most decisions to be made by juries. I. INTRODUCTION The civil jury2 has often been cast as the quintessential democratic institution, but its practical value in promoting justice has also been questioned.3 A metaphor for citizen participation in legal decision-making, the modem civil jury enjoys a visible but often marginalized role in the administration of justice. The symbolic commitment to the presence and * Professor of Law, Temple University School of Law. B.A., Smith College; J.D., Duquesne Law School; LL.M., Yale Law School. I would like to thank my colleagues, particularly those who critiqued a rougher first draft, at the Fourth Annual Critical Race Theory Workshop in 1992, for their assistance and helpful comments after reading earlier versions of this Article. Thanks especially to: Peggy Davis, Lani Guinier, David Kairys, Michael Libonati, Frank McClellan, Joseph Passon, and David Sonenshein. I greatly appreciated the support and research assistance of Gicene Brignola, Doneene Keemer Damon, Debora Fliegelman, Jeanmarie Martinko, and Stephanie Montgomery. Professor Mari Matsuda, Georgetown University Law Center, Comment at Fourth Annual Critical Race Theory Workshop, Mercy Center, Connecticut (June 3, 1992). 2 This Article concerns the civil jury as a decision-making device of the American judicial system. There are, of course, other civil dispute resolution mechanisms, public and private, which have been considered, but none has been accepted in this country like the judge and jury method. See, e.g., CHARLES W. JOINER, CIVIL JUSTICE AND THE JURY 6-8 (1962) [hereinafter JOINER, JUSTICE AND THE JURY]. The right to a jury trial is enshrined in the Seventh Amendment to the Federal Constitution and in most state constitutions. This Article does not consider how those state provisions have been read nor does it concern particular problems confronting states. 3 See generally, e.g., JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE (1973) (describing realists' critique of American judicial system, particularly jury trials, the legal profession, and juries); HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 4 & n.2 (1966) (sampling of responses to now famous Chicago Jury Project); THE JURY SYSTEM IN AMERICA: A CRITICAL OVERVIEW (Rita J. Simon ed., 1975) (differing perspectives on the jury system through contributing essays) [hereinafter JURY SYSTEM]; Dale W. Broeder, The Functions of the Jury: Facts or Fictions, 21 U. CHI. L. REV. 386 (1954) (criticizing juries' fact finding function and policy making role, and generally questioning juries' capacity for rendering good decisions given rules and procedures). WILLIAM AND MARY BILL OF RIGHTS JOURNAL [Vol. 3:1 participation of lay people in the justice system runs deep.4 In a world focused on efficiency and reason, however, the desirability of using this "transient, ever-changing, ever-inexperienced group of amateurs" 5 has been challenged by the presumed value of leaving the determination of justice to a cadre of legal professionals.6 This Article considers whether we sufficiently appreciate the opportunities flowing from community participation in the civil justice system. It asks what function juries can perform in meting social justice through adjudication. The Seventh Amendment mandates their presence in certain cases,7 and its inclusion among the first amendments to the Constitution indicates that, at least at the framing of the Constitution, and earlier, juries were perceived as significantly contributing to the just resolution of civil claims of right.8 Indeed the jury was seen not only as a buffer against unsympathetic government and power-wielding citizens, but also as the repository of community knowledge, distinguishable from 4 Public acceptance of the jury trial runs high, at least as most surveys reflect. See Most Jurors Would Want Their Own Case Heard by a Jury, Not a Judge, NAT'L L.J., Feb. 22, 1993, at S15. At a recent symposium on the jury sponsored by the Brookings Institution and the American Bar Association, this perception was confirmed. See Report from an American Bar Association/Brookings Institution Symposium, Chartinga Future for the Civil Jury System, 2-3 (1992) [hereinafter Charting a Future]. The participants of the symposium, however, concluded that for reasons of "turf and tradition," lawyers and judges tend to be condescending to jurors, and that as a result, the system leaves jurors "underpaid and underappreciated." A Call for the Jurors to Take Bigger Roles in Trials, N.Y. TIMES, Jan. 1, 1993, at A19 (discussing the symposium report); see also Gerald Torres & Donald P. Brewster, Judges and Juries: Separate Moments in the Same Phenomenon, 4 LAW & INEQ. J. 171 (1986) (commentary concerning minimizing effect of motion practice and procedural rules). In his Chicago Jury Project, Harry Kalven, Jr. reports that 70% of the public favored jury trials. See JOINER, JUSTICE AND THE JURY, supra note 2, at 65 (citing HARRY KALVEN, JR., Report On The Chicago Jury Project, in CONFERENCE ON AIMS AND METHODS OF LEGAL RESEARCH 155-74 (Alfred F. Conard ed., 1955), reprinted in JOINER, JUSTICE AND THE JURY, supra note 2, at 201-14); see also Powers v. Ohio, 499 U.S. 400, 406-07 (1991) (quoting authorities on the value of citizen participation). I KALVEN & ZEISEL, supra note 3, at 4. 6 Id. 7 U.S. CONST. amend. VII. B See infra notes 69-88 and accompanying text. Most commentators agree that the Framers' failure to include a civil jury trial guarantee was not due to lack of support for the right to a jury trial. See, e.g., Charles Wolfram, The Constitutional History of the Seventh Amendment, 57 MINN. L. REV. 639, 656 (1973); see also THE FEDERALIST No. 83, at 521 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) ("[F]riends and adversaries of the plan of the convention ... concur at least in the value they set upon the trial by jury."). 1.9941 RETHINKING THE JURY the legal expertise of the judge. The jury's value in securing a community connection to law and facilitating the accomplishment of justice, though firmly rooted in Anglo-American history, has not always been affirmed in recent reform measures, such as modem rules concerning evidence, motions and other procedures, 9 and proposals for specially qualified juries.1° For people of color, the role of juries has peculiar equivocal signi- ficance. People of color are aware of the democratic symbolism of the jury as "preserv[ing] liberty by wresting 'the law' from the experts."" People of color are also conscious, however, that the "firm rootings" of the jury in the American past did not include representation of women, blacks, or Indians, 2 and that unrepresentative jury decisions have frequently underscored their marginalized status.' 3 Indeed the reprieve of no jury has been seen as an advantage for people of color: jury decision-making on more than one occasion, after all, has confirmed that the political majority devalues the worth of the lives and dignity of outsiders. 9 See, e.g., FED. R. Civ. P. 49(a), 50, 59(a). Commenting on the "narrow conventional function" of the civil jury, Gerald Torres and Donald Brewster have observed that "[tlhe jury 'instruction,' the rules of evidence, and the interpretation of law versus the finding of fact all limit the scope of the jury's legitimate function." Torres & Brewster, supra note 4, at 180; see, e.g., LEON GREEN, JUDGE AND JURY 375-94 (1930) (discussing equivocal role jury played in history); Broeder, supra note 3, at 396-97 (describing marginalization through motion practice and procedural rules); see also Edmund M. Morgan, The Jury and the Exclusionary Rule of Evidence, 4 U. CHI. L. REV. 247 (1937) (providing example of minimization in criminal context). Ton-es and Brewster, however, recognize the potentially more minimizing effect of language of courts and commentators used to characterize the civil jury, words and phrases like "capricious," "unpre- dictable," "easily swept by emotion," and, "not given to hard logical thinking"- words and phrases commonly used to characterize women. Torres & Brewster, supra note 4, at 181 & n.44 (citing Carrie J. Menkle-Meadow, Portia in a Different Voice: Speculations on A Woman "sLawyering Process, I BERKELEY WOMEN'S L.J. 39, 49 (1985) (asking the question, "Is the judge 'male,' the jury 'female?.')). '0 See, e.g., William V. Luneberg & Mark A. Nordenberg, Specially Qualified Juries and Expert Nonjury Tribunals:Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 VA. L. REV. 887 (1981). " Torres & Brewster, supra note 4, at 176. The authors, however, distinguish between the function of the jury as icon and as symbol. "The icon is the receptacle of the past .. the symbol ... has its being in the future." Id. 12 Harold M. Hyman & Catharine M. Tarrant, Aspects of American Trial Jury History, in JURY SYSTEM, supra note 3, at 25. But see infra note 45 (Thayer's allusion to the inclusion, in some cases, of Indian jurors in Massachusetts). "3See, e.g., Isabel Wilkerson, Middle-Class but Not Feeling Equal, Blacks Reflect on Los Angeles Strife, N.Y. TIMES, May 4, 1993, at A20. WILLIAM AND MARY BILL OF RIGHTS JOURNAL [Vol. 3:1 Recently, feminists" and critical theorists 5 have challenged as impoverished the concept of community participation that is reflected in the conventional liberal-pluralist interest group model of politics; their critiques challenge us to consider whether the jury, reconceived, might better serve even an outsider's interests in achieving social justice.
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