Monday, September 21, 2009

Question: Juries?

Having spent the day playing a twisted game of inverse bingo, hoping that my juror number would not be called, I was finally released back into the wild this evening without even the satisfaction of sentencing some unfortunate jerk to hang for wasting my time. And that got me wondering, are juries really a good thing? We don't pick random people from crowds to fly planes, should amateurs be staffing our juries? What do you think?


CrispyRice said...

I've always thought it might be kind of interesting to serve on a jury! I've never had the chance, though. I'd probably be so eager to be chosen that they'd avoid me like the plague, LOL.

Anyway, isn't that the point of juries, though? NOT to be experts, but just average people? Otherwise we could just have the attorneys and judges do the judging and that wouldn't be good.

AndrewPrice said...

CrispyRice, that's the question. Are we better off with enthusiastic beginners, who are not savvy to the ways attorneys and witnesses manipulate, or are we better off with more professional (but cynical) jurors? Most countries use panels of judges. And even here, many people now recommend at the least the use of expert jurors to hear complex cases -- like medical malpractice.

I can see both sides, though I tend to come down on the side of the current system.

Writer X said...

I've only served on one jury and it was a public sexual indecency case. It was, to put it mildly, quite eye-opening. The people on my panel ranged from enthusiastic to those who couldn't get jury service over fast enough.

Juries are supposed to be a "jury of your peers," I think. I hate to say it, but I think it's mostly a crapshoot on whether you get a decent bunch of people or not. I suppose you hope for the best. Still, I'm not sure there's a better system out there.

Unknown said...

Andrew: I come down on the side of layman juries. I've seen juries of modestly-educated men and women of immense differences in background sort through complicated facts and evidence and esoteric law and come up with amazing, intelligent decisions (even when they went against my clients). They are unhampered by the agonizing and academic analysis that lawyers and judges are trained for. So rather than work themselves into a frenzy over niggling details, they go for the heart of the matter. Some have been disastrous, particularly when handing out wildly-inappropriate money damages, but mostly I find juries to be more reliable than judges (particularly appellate judges).

AndrewPrice said...

Writer X, In my experience, most jurors do their best to be diligent and they generally come out with fair decisions. I think a lot of the criticism of juries often fails to take into account that they are given some strange instructions.

That said, there is a real crap shoot element to it. I've had times I've been lucky to find out some juror's real motives just in time to keep them off the jury, and at others I've had to leave jurors on the panel that I know disliked my client just because I didn't have enough strikes to remove them.

A judge panel would solve a lot of this, and it would temper jury results, but I'm not sure if gives the public a stake in the system or that a judge panel gives the system the flexibility it sometimes needs.

AndrewPrice said...

Lawhawk, Don't get me started on appellate judges. That's where the real esoteric BS begins.

The advantage that I think juries have over the lawyers and the judges is that they are only presented with some of the evidence and they are told exactly what the law is. The lawyers and the judges, on the other hand, need to fight about what the law really is and then which facts can be considered and (somehow) forget those that should be excluded.

Skinners 2 Cents said...

What a great question. It's a question that ever since the OJ trial I've been contemplating from time to time.

I think the adage goes that it's usually the dumbest among us that makes it onto a jury. Most smart people figure out a way to avoid it. Which is part of the problem. That and the "civic duty" incentive doesn't really work. Especially when just about anyone on a jury is losing money they could have been making at work. That has to play some small part in a jurors decision making process. A juror is on the fence but because of personal expediency it's easier to agree with the group.

I think that jury pool profiling teams should be gotten rid of. I'm not sure what the official name for them is but it would seem like it's an attempt to stack the deck.

Of all the time that I've spent thinking about it, it always comes back to professional juries equals more bias. Can you imagine a jury made up of the 9th Circuit Judges.

We are supposed to be judged by our peers perhaps we should reexamine what is meant by peers. I think the problem is when you have a jury sitting in on a case involving say corporate crime the jury should be made up of corporate members that hold a similar position. It's far to easy to confuse a jury with technical jargon. People that are actual peers would not be so easily confused and it would force the arguments both pro and con to stay on the same level.

That's the best I've got and oddly enough after all the time spent thinking about it, it just came to me.

AndrewPrice said...

Skinner, It is a tough question. On the peers, the problem is that the plaintiff and the defendant are rarely in the same industry or income/professional level -- so which do you choose?

When the parties are similar (especially corporations) like a suit between Microsoft and Oracle, they now often opt for arbitration, where they set their own rules and pick their own judge.

The thing about stacking the deck is that both sides are trying to do it (and will continue to try even without consultants -- I've never actually seen consultants hired in any case with which I've been involved). So theoretically, the two sides will knock out the others' "stacked-jurors" and leave a relatively fair jury.

And you really can't say that you just have to take a random jury because it's too easy to end up with people who should not sit on the jury -- people with a bias.

In terms of education/confusing the jury, it really is the job of the attorney to explain it in a way that juries can understand.

Skinners 2 Cents said...

I guess when I think juries I think criminal cases, that was a little short sighted on my part.

I would agree that it's the lawyers responsibility to explain things to the jury but let's face it we've all sat in classes with people that just didn't get it. No matter how many times it was explained to them. Not to mention the very limited time that jurors actually have to learn about a very specific topic.

I'd have to agree that even though are system is a little bit flawed I still like the idea of random people over a panel of jurors. I don't trust judges any more than I trust politicians.

I know that in court cases the accused is allowed to see the accuser. Does the same hold true for the jury it self. What if the jury only gets to see the witnesses and the evidence. I'm trying to eliminate the racial/sexist elements of the jury.

StanH said...

I would say as a novice that the jury system is a good one. However as was mentioned upthread like the OJ trial, the peril of jury nullification, releasing an obvious double murderer would be a danger.

Pittsburgh Enigma said...

I'm all for a volunteer system. I personally dread the idea of being called for jury duty. I was called once, and I dreaded being picked the whole time I was there. Fortunately for me, I wasn't picked for anything and was released after the first day.

There are plenty of "layman" people who would be willing to serve on a jury. CrispyRice seems to be one. I'd much rather have 12 people judging me who *want* to be there rather than 12 who are forced to be there. On my single day of service, I watched several people get picked for trials and start expressing obvious signs that they didn't want to be bothered.

Also, I wonder if the lawyers could explain something: why aren't jurors allowed to take notes during a trial? I was shocked when I heard the judge say that no note taking would be permitted during the trial. I personally have a hard time remembering things, so I write everything down. That's part of the reason I don't want to serve on a jury--I don't want to have to make a decision that will affect the rest of some poor schmuck's life based on information that I'm being forced to remember.

Individualist said...


Here is a question? Which type of jury (one chosen at random from voter roles from whoever shows up that day or one chosen from a carefully selected group of paid members) is easier to intimidate, corrupt or threaten. If I am the leader of a biker gang is it easier for me to get to unsuspecting jurors who I have no advance warning who they'll be or is it easier to find the members of the paid jury pool and corrupt them in advance.

I am not sure the answer to this question? There are pros and cons for both I think.

Unknown said...

PittsburghEnigma: I wonder what kind of case you were being summoned for. It is a rarity for a judge to prohibit jurors from taking notes. Some states have rules about not taking notes on trials lasting less than two days, but in California, most courts provide notepads and pencils for the jurors to write on. The catch is that the notepads cannot leave the courtroom or the jury room. They are for the jurors to use for deliberation, but not for any outside use whatsoever. After the verdict is announced, the judge has the discretion to order all the notepads to be turned in to the bailiff. Each state has different rules, but forbidding note-taking is not commonplace.

Unknown said...

StanH: I spent more time in criminal courts than Andrew, so we have a tendency to look at things a bit differently. A jury of your peers in criminal law was meant to keep the rich from judging the poor or the king's men from judging civilians. Today, it really means an impartial fair cross-section of society to keep things balanced.

Lawyers frequently joke about whether they themselves would want to have their futures judged by twelve people too stupid to get out of jury duty. But it's a good-natured jest. Most of us are basically happy with the system we have.

The OJ trial was a travesty, and a perfect example of how a powerful and determined defense team can skew the system when facing a weak prosecution team. Marsha Clark and Chris Darden were political choices made by the weakest District Attorney I ever came up against. I used to run him around in circles just for fun when he was an assistant D.A. in the Torrance Court (Gil Garcetti). He is now out of the office and acting as the "legal adviser" for silly TV lawyer shows. But the first and fatal mistake was putting up a weak opposition to a change of venue. If the case had been heard in the West Los Angeles Court (Brentwood's district) where it belonged, the result would have been quite different. But allowing the case to be removed to the downtown court with no significant opposition was a stupid, incompetent mistake. In Brentwood, Simpson would have had a jury of his peers--middle to upper economic class homeowners of various racial makeup. By moving it downtown, it guaranteed a different set of "peers," meaning angry racial minorities and a couple of non-black people who were intimidated by the rest of the jury. The verdict was written the day the case was removed to the Los Angeles Central Criminal Courts (and the worthless Judge Ito was just an added bonus for the defense).

AndrewPrice said...

During the OJ trial, I had a chance to talk to two judges from Virginia. They were outraged how that trial made the system work. They told me that the OJ trial would have lasted no more than 5 days in Virginia, and they were certain there was more than enough evidence to convict. But California is a little different system than the rest of the country.

Skinner, I know what you mean about not getting it, but there are judges who fall into that category too.

Individualist, that's a great point too. It's a lot harder to corrupt jurors who are chosen randomly at or just before the time of trial. But it would be a lot easier to corrupt "professional" jurors.

AndrewPrice said...

Pitts, As an attorney, you have a natural instinct to want to get rid of the people who are too eager to serve because you don't know why they want to serve. Are they there to "get even" for some perceived wrong or to make a point? Or are they just interested in the experience? It's hard to tell the two apart when all you see is someone who really wants onto the jury. Your safest bet is to get rid of them.

Unknown said...

Skinners2Cents: Seeing the accused in a criminal trial is a matter of what we call public policy. The jury needs to see the accused so it can observe his demeanor, the only clue they are likely to have to his or her attitude toward the trial, since it is highly unlikely the defendant will testify. On the other side, the defendant has an absolute right to see the jury that is deciding on his fate, including having input into the jury selection itself.

Those of us who spent most of our legal careers in courtrooms have always joked about jury selection. The conversation between a prosecutor and a defense attorney boiled down to "you pick six, I'll pick six, we'll each get it completely wrong, and the jury will do whatever it damn well wants." I don't see any hint that "jury consultants" have done any better. After twenty years in courtooms, I wasn't much better at the end than I was in the beginning at guessing who would vote which way, or why. But I rarely made the mistake of playing to one or two jurors I thought might be sympathetic. It was always better to put on the best case possible, watch the jury as carefully as possible for reactions, and treat them with respect.

Unknown said...

Andrew: You don't have to go all the way to Virginia to get that reaction. Remember, I had offices in two different counties. He was tried in the notoriously incompetent and messy Los Angeles system. Had he committed the same crime in Ventura County, the trial not only would have lasted no more than two weeks (there was lots of evidence), but half the defense legal team would have been sitting in jail for contempt. If an attorney had acted the way their DNA expert lawyer acted when I was on the bench, he'd still be sitting in jail.

Time from the downtown L.A. Central Criminal Courts building to the nearest Ventura County Superior Court: 20 minutes. Distance in judicial philosophy: Several light years.

patti said...

i love serving. all that power...bwhahahahahahaha!

i am a cynic and can see past a lawyer's manipulation on both sides. i like the challenge to find the truth stripped of the theater. but, since i have already served on a few juries, i also know of some selected that have no interest in the process and just want out the door as fast as possible. our current system definitely has pluses and minuses, but i'll take it over a professional one any day. i gotta believe there are more folks like me than the other within each pool.

Pittsburgh Enigma said...

LawHawk: I was summoned for criminal court. The trial would've been several days long. I just figured that forbidding of note taking was just some common courtroom law. I'm glad to hear it's not.

Andrew: I agree that an "eager" juror could be someone with an agenda. And I could see a volunteer system being gamed (imagine ACORN recruiting people for juries!!!) But for the few people who would be there to game the system, I think there would be many more who just wanted to truly do their "civic duty", like voting or serving in the military.

AndrewPrice said...

Pitts, The problem is the requirement to have a unanimous jury. All it takes is one or two people with agendas to mess up the system, that's why you dump anyone who really seems to want to the jury.

Patti, I think that by and large, most people seem to accept serving (or even enjoy it) and they take their role very seriously and act very diligently. I too prefer the current system to anything run by professionals.

Tennessee Jed said...

Our system of justice is imperfect but still seems to be the alternatives. I honestly think most people would try and do the right thing. Sometimes, judges instructions to a jury can be incredibly important as well. I was called for jury duty in my early twenties and was chosen for a murder case. They had a plea bargain after a day. Still, I think as a college educated person with a couple of business law courses, I knew enough about law that I could make reasonable judgements based on the evidence and judge's instructions.

AndrewPrice said...

Jed, Jury instructions are prepared by the attorneys and then fought over a lot before they are given to the juries. And while they tend to be full of lots of pointless words (and are usually very poorly written) they often are actually quite simple -- (1) do you find these three things, (2) here's the test for deciding if each is present. If so, guilty. If not, not guilty.

BevfromNYC said...

The other issue that put the OJ trial over the top was Judge Ito's stupid decision to allow cameras in the courtroom and for the whole thing to be televised. Most people watching did not understand that the viewing "audience" was seeing a lot of evidence and hearing arguments that the jury was not privy to.

And then making it even a bigger circus by allowing jurors to be interviewed by the press either when they were replaced during the trial or after the verdict. It has confused and scared potential jurors for ever since.

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