The verdict is in: The jury is flawed

October 09, 1994|By Myron Beckenstein

Rodney King I, Imelda Marcos, the Menendez brothers, the Branch Davidians -- the visible examples of something wrong with our jury system come too numerously to mind.

How can cases like these happen time after time? Is it that the jury system is hopelessly flawed and that its day has passed? In Britain, only 5 percent of all criminal cases and 1 per cent of all civil cases are handled by juries now.

But in America, we are much more likely to dispense with the wisdom and prejudices of judges for the humanity and prejudices of a collection of our fellow citizens.

Stephen J. Adler definitely thinks there are problems, and he clearly identifies the reasons this vestige of democracy seems to be failing.

The theory behind the jury system is that an impartial panel, vaguely mirroring the community, will intelligently examine the evidence in a case and deliver a wise and fair verdict.

In reality, the jurors' job too often is to be referees in a contest in which they don't know the rules and to establish justice from the presentations of two lawyers who aren't as much concerned with gaining justice as with winning their case.

But before the presentation even begins, there is the question of who will serve on the jury. While most Americans believe in the jury system and will quickly defend it, we just as quickly will try to get out of serving.

Some 55 percent of the people called never even show up, according to the book. Of those who do bother to come, large numbers come with excuses and reasons for getting off. Then, too, some state laws say that members of certain occupations can't serve.

It is only with a little exaggeration that Mark Twain observed 120 years ago that we "swear in juries composed of fools and rascals, because the system rigidly excludes honest men and men of brains."

When it comes to picking jurors from those people who are left, choosing impartial jurors is obviously a fallback position for lawyers -- they would much rather have favorable jurors. To assure impartiality, prospective jurors can be excused "for cause" if it is felt they can't be unbiased.

But lawyers also are allowed to strike a certain number of other prospects without having to give a reason -- peremptory challenges. In theory, this is another safeguard toward fairness. In practice, Mr. Adler says, it too often has become a vehicle for jury stacking.

Using modern social-science insights, jury consultants, as they are called, can tell the lawyers which prospective jurors to choose and which to reject -- as well as which arguments to stress and which topics to avoid to get the desired verdict. Some consultants promise better than 90 percent assurance that they can deliver the desired outcome. This doesn't necessarily mean a favorable verdict -- only one juror is needed for a hung jury.

Once the jury is packed, then comes the trial, which can actually hinder the jury's knowledge of what is happening. Trials can get very complicated and technical, they can last for months, and jurors usually can't take notes or ask questions if they don't understand something.

When they have to choose between conflicting witnesses, studies have shown, jurors usually use the wrong criteria and believe the wrong witness. When they have to decide damages, they are given no guidelines as to what is reasonable and what similar cases have brought.

And finally -- literally finally -- only at the very end of the trial are they given the instructions by which they should have been evaluating what they have seen and heard.

What is the result of all this? An American Bar Association study of juries found that "many jurors were confused, misunderstood the instructions, failed to recall evidence, and suffered enormously from boredom and frustration."

Regarding boredom, in one of the cases Mr. Adler examines, a long-running civil trial, all the jurors one day decided to dress in black and white to reflect the cigarette packs that were at the center of the case.

Mr. Adler, a legal reporter as well as a lawyer, knows what makes juries not tick, and he has written a clear, thoughtful book that should inspire a wider examination of this democratic cornerstone that we have too long taken for granted.

"A jury system that works as badly as this book shows it does simply shouldn't, and won't, survive," Mr. Adler writes. "It may never be abolished, given its protected status among our national myths and in our Constitution. But it will certainly erode, a process that is already well under way. The real question is whether the jury system is worth saving in principle and, if so, whether we can improve it sufficiently to make it worth saving in practice."

He obviously thinks it is.

Mr. Adler's facts, logic and presentation make the solutions seem self-evident. However, to make changes means going against political inertia and entrenched interests. Is there anything in society as formidable as a threatened lawyer?

Mr. Beckenstein is an editor on The Sun's foreign desk.

Title: "The Jury"

Author: Stephen J. Adler

Publisher: Times Books

Length, price: 285 pages, $25

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