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Thursday, April 28, 2016

Jury Love

 The jury trial is dying.  Plea bargains resolve approximately 97% of criminal cases in federal courts and 94% of cases in state courts.  In civil cases, the percentage of jury trials is even lower.  In federal courts, less than 1% of civil cases are resolved before a jury.  In state courts, the percentage of jury trials is only slightly higher.  Perhaps not coincidentally, citizens have stopped showing up for jury duty.  Juror no show rates in some jurisdictions have reached 85%, leading to the postponement of serious criminal cases (including murder trials).  Law students can graduate from law school, excel in practice, and become judges without ever having the opportunity to try a case before a jury.  As an institution, a civic responsibility, and as part of our legal system, juries remain unloved.

I have expended some scholarly effort to change this reality.  I love juries, and it is not just because I have been trying to promote the best book ever written on jury duty – Why Jury Duty Matters:  A Citizen’s Guide to Constitutional Action (okay, so it is the only book written for jurors on jury duty).  But, for several years now I have been trying to make juries relevant.  I have written about the George Zimmerman/Trayvon Martin case, I wrote when Charlie Sheen and Donald Trump got jury duty, I have tweeted, facebooked, blogged and littered the comments section of various discussions.  I even wrote a national CNN op-ed on the Fourth of July with the audacious title, “What is the Most American Thing You Can Do?” (answer jury duty).  But, the reaction of every one of those attempts to recognize this fundamentally democratic and constitutional institution was pretty much nothing.  My love was unrequited.  I couldn’t even generate outrage.  Worse than being hated, I was just ignored.

I am not alone in recognizing the problems of juries in America.  Steve Susman along with Professors Samuel Issacharoff and Catherine Sharkey have created the NYU Civil Jury Project which in just a year has already galvanized research and attention to the problem.  Professor Suja Thomas has a new book coming out in June entitled “The Missing American Jury” which will amplify a national understanding of the problem.   Professor Laura Appleman recently published an excellent book, “Defending the Jury” that does just that.  Jury Centers like those run by Professor Nancy Marder and jury experts in the academy who are too numerous to name have all spent years writing about the problems and promise of jury trials.   

Yet, the reality is that on our watch as law professors a foundational legal institution – one that can find legitimacy in the text of the US Constitution, the Bill of Rights, the Declaration of Independence, and which was central to the Women’s Suffrage Movement, the Civil Rights Movement, and is considered one of the core reasons why the American legal system is special – lies dying.  I would like to change that reality.

I offer five possible considerations to change the way citizens (and your law students) think about the jury.

  1. Change jury duty into constitution duty. I have written two law review articles (and the book) arguing that we need to think about the jury as a constitutional teaching moment.  I have argued we need to think about The Jury as Constitutional Identity and to use Jury Instructions as Constitutional Education.  The central argument in all these works is that serving as a juror is one of the closest connections a citizen can have to the Constitution.  So why not embrace that connection, and see the constitutional values built within the jury system.  We should stop viewing jury duty as just a task to be completed, and instead see it as part of an ongoing political and civic identity.  We should use jury duty to teach the larger constitutional principles that structure our legal and political system. 
  1. Collect positive juror voices. Almost all jurors who serve on jury duty have a positive experience.  Yet, there exists no central place to collect those positive stories of jury duty.  Jurors serve, and then disappear back into society.  A simple website that collects and shares through social media the positive stories of jury duty could change the entire perception of the process.  Jurors can be wonderful advocates for the experience, but someone needs to collect their voices. 
  1. Teach the jury in high schools, colleges, and law schools. We do a poor job educating young citizens about what they should know about the jury.  We are lucky if high school graduates even know there is a jury system.  We do very little to explain why it is important, what the jury role is, and why they must participate.  Then we wonder why people dread jury duty.  We could overcome much of a young citizen’s anxiousness and uncertainty with education and encouragement.  We could empower students with knowledge about why the jury system exists and why they are critical to its survival.  Every high school graduation commencement address should end with the sentence, “Welcome to citizenship.  Don’t forget to vote, show up for jury duty, and contribute to your community.” 
  1. Partner with local courts to promote jury service as important to the legal system. Judges understand the importance of juries.  Some judges are taking steps to improve the system.  But, law professors and law schools can do more.  Professors, students, and lawyers should be in the community teaching about this important right and obligation.  I recently returned from speaking at the Montana Judicial Institute, an intensive three day legal training for high school educators administered by the federal court in Missoula, Montana and hosted by the University of Montana Law School.  For seven years now, educators from all over the state have come to learn about the rule of law, civil and criminal trials, and the role of the jury.  It is an amazing program that deserves to be replicated across the country.
  1. Emphasize the good and counteract the bad image of jurors in America. A concerted effort has been made to delegitimize juries with some success.  But, the “hot coffee” tort horror story turns out to be largely inaccurate.  It actually turns out that jurors tend to get the answers right when deciding cases, and equally importantly their participation helps other aspects of the democracy.  We could teach this reality in our classes and show that citizen justice tends to work.  If lawyers stop believing in the jury system, then we have little hope of saving the institution.

I am fully aware of the structural problems around jury trials.  I understand the impact of plea bargains and mandatory minimums.  I understand the financial realities, and alternative dispute options.  I get the hassle argument.  But, as educators in law we can also find ways to educate about the jury.  Juries have been a part of America before there was an America.  They symbolize citizen self-government and community justice.  They remain an important part of the structure of our constitutional system.  They are great spaces of civic education and inspiration.  And, right now, they need our love.

Posted by Andrew Guthrie Ferguson on April 28, 2016 at 02:12 PM | Permalink


The jury trial is dying, but its death comes at the hands of lawyers, not jurors. All the eager jurors in the world can't replace the certainty or cost savings of a plea bargain or a settlement agreement.

Posted by: Anon2 | Apr 28, 2016 3:07:00 PM

Or, we coud repeal the jury clauses of the fifth, sixth, and seventh amendments, and solve dozens of problems with our legal system at one fell swoop.

Posted by: James Grimmelmann | Apr 28, 2016 2:28:46 PM

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