Hofstra Law Review Volume 25 | Issue 2 Article 1 1996 The iH storical and Constitutional Contexts of Jury Reform Douglas G. Smith Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Smith, Douglas G. (1996) "The iH storical and Constitutional Contexts of Jury Reform," Hofstra Law Review: Vol. 25: Iss. 2, Article 1. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol25/iss2/1 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Smith: The Historical and Constitutional Contexts of Jury Reform HOFSTRA JAW REVIEW Volume 25 Winter 1996 THE HISTORICAL AND CONSTITUTIONAL CONTEXTS OF JURY REFORM Douglas G. Smith* CONTENTS I. INTRODUCTION ............................... 380 II. THE ENGLISH JURY SYSTEM ........................ 390 A. Origins of the English Jury ................... 391 B. Internal Structure and Composition of the Jury ..... 395 1. Jury Size ............................. 396 2. Rule of Unanimity ...................... 397 3. Method of Selecting Jurors ................ 397 a. Experience and Qualifications of the Jury ......................... 398 b. Voir Dire and Peremptory Challenges ...... 400 c. Special Juries ....................... 402 d. Trial de Medietate Linguae ............. 404 4. Trial Length ........................... 405 C. Judicial Control of the Jury ................... 406 1. Judicial Coercion of Juries: Bushell's Case ......................... 408 * Associate, Kirkland & Ellis, Chicago, IL. J.D., Northwestern University School of Law; B.SJB.A., State University of New York at Buffalo. I am grateful for comments on previous drafts of this Article from Steven Calabresi, Gary Lawson, and Daniel Polsby. This Article is based on a Senior Research Project conducted under the guidance of Professor Calabresi at Northwestern University School of Law. All mistakes are attributable to the Author. Published by Scholarly Commons at Hofstra Law, 1996 1 Hofstra Law Review, Vol. 25, Iss. 2 [1996], Art. 1 HOFSTRA LAWREVIEW [Vol. 25:377 2. Judicial Commentary on the Evidence ........ 408 3. Other Mechanisms of Judicial Control ........ 411 4. Minimal Rules of Evidence ................ 413 D. Role of the Jury ........................... 414 1. The Authority of English Juries Concerning Issues of Fact and Issues of Law ............ 415 2. The Role of the Jury in the Trial ............ 416 3. Authority to Determine Sanction in Criminal Cases ............................... 419 III. THE AMERICAN JURY SYSTEM .................... 421 A. Significance of the American Jury ............... 421 B. Internal Structure and Composition of the Jury ..... 426 1. Jury Size ............................. 426 2. Rule of Unanimity ...................... 428 3. Method of Selecting Jurors ................ 431 a. Experience and Qualifications of the Jury ... 431 b. Voir Dire and Peremptory Challenges ...... 434 c. Special Juries ....................... 437 d. Trial de Medietate Linguae ............. 438 4. Trial Length ........................... 439 C. Judicial Control of the Jury ................... 439 1. Judicial Coercion of Juries ................ 440 2. Jury Instructions ........................ 441 3. Judicial Commentary on the Evidence ........ 442 4. Other Mechanisms of Judicial Control ........ 443 5. Minimal Rules of Evidence ................ 444 6. Erosion of the Jury's Power ................ 444 D. Role of the Jury ........................... 446 1. The Authority of American Juries Concerning Issues of Fact and Issues of Law ............ 446 2. The Role of the Jury in the Trial ............ 454 3. Authority to Determine Sanction in Criminal Cases ............................... 455 IV. CONSTITUTIONAL CONSTRAINTS AND HISTORICAL ANALYSIS ................................... 455 A. Internal Structure and Composition of the Jury ..... 458 1. Experience and Qualifications of the Jury ...... 458 2. Voir Dire and Peremptory Challenges ......... 470 3. Jury Size ............................. 472 http://scholarlycommons.law.hofstra.edu/hlr/vol25/iss2/1 2 Smith: The Historical and Constitutional Contexts of Jury Reform 19961 JURY REFORM 4. Requirement of Unanimity ................ 474 B. Judicial Control of the Jury ................... 474 1. Jury Instructions ........................ 475 a. Form of Instructions .................. 476 b. Furnishing Written Copies of the Instructions ........................ 476 c. Preinstructing the Jury ................ 477 d. Interim Statements or Instructions ........ 479 2. Judicial Commentary on the Evidence ........ 479 3. Complex and Truth-Defeating Rules of Evidence ............................. 483 4. Other Mechanisms of Judicial Control ........ 483 a. Special Interrogatories ................ 485 b. Special Verdict ...................... 486 c. Summary Judgment .................. 488 d. Directed Verdict ..................... 489 e. Judgment Notwithstanding the Verdict ..... 490 C. Role of the Jury ........................... 491 1. The Authority of American Juries Concerning Issues of Fact and Issues of Law ............ 492 2. Juror Questioning of Witnesses ............. 496 3. Juror Questioning of the Judge .............. 498 4. Communication Among the Jurors ........... 498 5. Juror Note-Taking ....................... 500 6. Authority to Determine Sanction in Criminal Cases ............................... 502 V. CONCLUSION ................................ 504 Published by Scholarly Commons at Hofstra Law, 1996 3 Hofstra Law Review, Vol. 25, Iss. 2 [1996], Art. 1 HOFSTRA LAW REVIEW [Vol. 25:377 I. INTRODUCTION The role that the jury' plays in the adjudicatory process has been given much scholarly attention in recent years.2 Not only has the role that the jury plays in adjudication come into question, but also the jury's ability to function effectively in that role. For example, the civil jury has been criticized for producing unwarranted delay and irrational outcomes in civil trials that are detrimental to society.3 The ability of civil juries 1. In general, this Article does not distinguish between the role of the jury in civil cases and the role of the jury in criminal cases. With respect to most of the issues that are addressed within the following Parts, the distinction does not appear to be essential. Some commentators have noted the similarity of the role of the jury in the civil and criminal contexts. See, e.g., Colleen P. Murphy, Integrating the ConstitutionalAuthority of Civil and Criminal Juries,61 GEO. WASH. L. REV. 723, 729 (1993) (stating that "the history, text, and structure of relevant constitutional provisions suggest that the authority of civil and criminal juries is more shared than divergent"). The Supreme Court, to a certain extent, has also noted the similarity. See Colgrove v. Battin, 413 U.S. 149, 157 (1973) (stating that "the purpose of the jury trial in criminal cases [is] to prevent government oppression and, in criminal and civil cases, to assure a fair and equitable resolution of factual issues" (citations omitted)). However, particularly with respect to the constitutionality of the proposed reforms, the distinction might be important. Therefore, where appropriate, this Article discusses the relevance of the distinction to proposed reforms. 2. A number of commentators have been critical of the jury. See, e.g., JEROME FRANK, COURTS ON TRIAL (1973); LEON GREEN, JUDGE AND JURY (1930); THE JURY SYSTEM IN AMERICA (Rita James Simon ed., 1975); see also HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY 4 (1966) (describing the jury as a "transient, ever-changing, ever-inexperienced group of amateurs"); Dale W. Broeder, The Functions of the Jury: Facts or Fictions?,21 U. CHI. L. REV. 386,424 (1954) (questioning the ability of the jury to fulfill its factfinding role); Alfred C. Coxe, The Trials ofJury Trials, 1 COLUM. L. REV. 286, 289 (1901) (referring to the jury system as "out of touch"); Stephan Landsman, The Civil Jury in America: Scenes from an UnappreciatedHistory, 44 HASTINGS L.J. 579, 581 (1993) (stating that "in the early twentieth century the jury was subjected to some of the sharpest criticism in its long history"); cf. Hans Zeisel, The Debate over the Civil Jury in Historical Perspective,1990 U. Cm. LEGAL F. 25, 31 (suggesting that we improve rather than criticize the jury system). However, the jury also has its defenders. For example, Professors Hans and Vidmar came to the following conclusion after their recent study of the jury: Our final judgment on the jury system is a positive one. Despite some flaws, it serves the cause of justice very well. For over 700 years it has weathered criticism and attack, always to survive and to be cherished by the peoples who own it. Adaptability has been the key to its survival. It should remain open to experimentation and modification, but those who would wish to curtail its powers or abolish it should bear the burden of proof. Defenders of the jury clearly have the weight of the evidence on their side. VALERIE P. HANS & NEIL ViDMAR, JUDGING THE JURY 251 (1986); see also Douglas G. Smith, Structural andFunctional Aspects of the Jury: ComparativeAnalysis and Proposalsfor Reform, 48 ALA. L. REV. (forthcoming 1997). 3. See CHARLES W. JOINER, CIVIL JUSTICE AND THE JURY 222-33 (1962) (noting that jury trials often take longer