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... of laymen or a group of medical experts? Most of the time the jury resolved its dilemma by spelling out for itself the separate tasks that the law expected each to perform. In essence, the jury concluded that the experts testimony emphasized only one aspect of the problem, the clinical part, and that his testimony contributed little to the major dilemma that confronted the jury, that of placing the clinical or purely medical facts about the defendant into a moral-legal context. The jurors reminded each other that the court instructed them that the presence of a mental illness or aberration should not by itself excuse the defendant; that it was the jurys task to decide whether the particular manifestation of mental illness which the defendant exhibited met the norm of non-responsibility specified by the rule of the law.
Thus, the jury could consider the experts testimony, understand it, choose to reject much of it, and still demonstrate intelligence about the substantive issues involved in the trial as well as the logic of the law they were instructed to apply. Once the suggested challenges have been disposed of, we move into the process of selecting the trial jury which will hear the individual case. Here, from a mechanical standpoint, the jury officer (most commonly the judge or the clerk of the court) draws names at random from the previously randomly selected panel or venire. These persons are questioned by the judge and frequently by the prosecutor and counsel for the defendant in what is referred to as the voir dire examination and selection of the jury.
Techniques vary from state to state and from locale to locale even within the federal court system. But, in essence, each juror discloses information about his or her background, familiarity with the case, friendship or acquaintance with persons involved in the case as defendant, lawyer or witnesses, attitudes toward certain facts which may be disclosed in the case or legal principles which may be involved, and a myriad of other factors which, in the almost uncontrolled discretion of the judge, will reflect upon the individual juror's ability and willingness to sit as a fair and impartial juror in the case. If facts or circumstances develop during this interrogation which show that a juror cannot fairly judge the case, the juror may be challenged for cause by either the prosecution or defendant. The presiding judge rules on the challenges and if sustained, the juror steps aside and another takes his place. Failure to sustain a defendants challenge for cause can be reviewed on appeal from a conviction. In practice few challenges for cause are made and even fewer are sustained.
There is no limit to the number of jurors who can be challenged for cause. Challenges for cause cannot be employed to produce a non-representative jury. Thus, the Supreme Court has held it to be constitutionally impermissible in a capital case to excuse for cause all prospective jurors who voiced conscientious or moral scruples against the death penalty. Automatic exclusion of such a broad segment of the populace cannot be tolerated consistent with the notion that the jury should be representative of a cross-section of the community.
In addition to challenges for cause, the so-called peremptory challenge enjoys nationwide acceptance. Here the defendant and prosecutor are granted a number of challenges fixed by statute or rule according to the gravity of the offense. These challenges may be exercised as their name indicates: without reason. Constitutionally based arguments that only the defendant should be granted peremptory challenges have been rejected. The jurors spend most of their time reviewing the court record. By the time they have finished deliberating they have usually considered every bit of testimony, expert as well as lay, and every point offered in evidence...
The most consistent theme that emerged from listening to the deliberations is the seriousness with which the jurors do their job and the extent to which they are concerned that the verdict they reach be consistent with the spirit of the law and with the facts of the case. (Strodtbeck, 1967) Once the jury is selected and sworn to hear the case it becomes the judge of the weight of the evidence and the credibility to be given to the testimony of the witnesses. In some jurisdictions the presiding judge may comment on these matters but he may not compel the jury to accept his views. Of course, if the evidence is so deficient that it cannot, as a matter of law, support a verdict of guilty beyond a reasonable doubt, the presiding judge should enter a judgment of acquittal without the jurys assent. But he may never direct a verdict of guilty. If the jury finds the defendant not guilty that is the end of the matter. A verdict of not guilty cannot be challenged by the court or the prosecutor upon the ground that it is contrary to the evidence.
The judge disagrees with the jury because he is more pro-plaintiff about as often as the jury disagrees with him because it is more pro-plaintiff. Whereas the greater leniency of the jury toward the criminal defendant is congruent with popular expectations, the equality of pro-plaintiff response between judge and jury in civil cases is in sharp contrast to popular expectations. (Kalven, 1964) Thus, in fact the jury possesses a power of nullification which, from time to time, has been exercised in prosecutions which the jurors, as representatives of the community, regarded as particularly odious or unfair. The weakest link in the chain of enforcement is our boasted jury system. (Durant, 1929) The most significant and critical for the jury, perhaps the most unexpected result is the degree of similarity between judges and juries verdicts. In criminal cases, the judges reported agreement with the jurys verdict 80 percent of the time; both agreed to acquit in 13 percent of the cases and to convict in 67 percent of the cases.
In the 20 percent of the cases in which they disagreed, the jury was likely to acquit six times as often as the judge. There is probably no other area of jury behavior that trial lawyers believe more important or about which they believe they have more expertise than that of predicting the kinds of people who are likely to have the most to say and the greatest influence in the jury room. Trial lawyers are interested in the socioeconomic, social and psychological characteristics of prospective jurors as a practical matter. They believe that selecting a jury with the right combination of social characteristics can mean the difference between winning and losing a case. Researchers have asked two general questions about this issue. Are some jurors more influential than others in determining the groups decision; and, if they are, which types of jurors are most likely to have the greatest influence?
There are significant differences in jurors performance by the educational, occupational, ethnic and racial, and sexual characteristics of the jurors. Those differences were manifest both in the amount and the quality of the jurors participation. According to recent studies, men talked more than women and said different kinds of things. Men were more likely to emphasize task-related topics while women were more likely to say things that reduced tension in the jury and served to unify the group.
Men were more likely to initiate topics, women were more likely to react to comments or questions rose by men. Other studies showed that jurors who enjoyed higher socioeconomic status, i. e. , held more prestigious jobs, had more education, were more likely to be elected foreman and to participate more actively in the discussions. When these same characteristics were compared for criminal juries, the differences produced by socioeconomic status carried over; but the sex-role differences did not. In criminal juries, women talked as much as men and about much the same issues. About twenty-five years ago some 1, 500 jurors were surveyed in Utah concerning their reactions to having been called for jury duty. (Moffat, 1944) The jurors were almost unanimous in their response that they found their service an interesting and worthwhile experience.
They were strongly opposed to the idea of abolishing the jury system. Interviews with 1, 500 jurors in New York City conducted about a dozen years ago revealed that among jurors who actually sat on a case and suffered no economic hardship, over 80 percent indicated that they would like to serve again. (Broeder, 1959) In another survey of a medium-sized community in the Midwest, 94 percent of those who had ever served on a jury said they would like to do so again. Among a cross-section of residents of that same community, 90 percent said that if they were ever involved in a criminal case, they would prefer to have a jury over a bench trial. There was some disagreement, however, about the extent to which it was appropriate for judges to engage in particular kinds of questioning such as cross-examination and even questioning designed to clarify the full effect of a witness testimony.
This illustrates that there is considerable uncertainty about the proper boundaries of the jury role in criminal trials in general, and it can be argued that these boundaries need to be clarified. In its concern to improve the efficiency of jury system, judges should take a more interventionist approach towards trial proceedings. However, Doran suggests If a jury system were in place instead of a system of trial by judge alone, the judges would have to decide how to direct the jury, but the jury would make the ultimate decision in each case, and the nature of the general verdict would conceal whether or not it drew inferences from the accused silence. (Doran, 1995) There are several ways as to how the jury system should be changed to ensure that the court processes are used exclusively for the trial of offences which are genuinely connected to the emergency situation. In broad terms, these proposals fall into two categories. The first approach is to widen the range of offences capable of being tried by jury, either by taking some offences out of the Schedule or by making more offences subject to the power to reschedule. The second type of proposal is to change to a system of certifying in, rather than certifying out.
Detailed consideration of the options would be beyond the scope of the present work, but as we have argued elsewhere, the case for reform is strong on two counts: first, in view of the fact that ordinary defendants are routinely denied the right to jury trial because of the vagaries of the scheduling system as opposed to the nature of their alleged offence; and secondly, in the light of evidence that the normal system of trial by jury is working satisfactorily. Bibliography: Abraham, Henry. The Judicial Process. Oxford University Press, 1968 Broeder, Dale. The University of Chicago Jury Project.
Nebraska Law Review, 38, 1959. Doran, Sean and John Jackson. Judge without Jury: Diploma Trials in the Adversary System. Oxford University, 1995. Durant, C. Law Observance: Shall the People of the United States Uphold the Constitution.
Durant Award Office, 1929. Frank, Jerome. Courts on Trial, New York, 1963. Kalven, Harry Jr. The Dignity of the Civil Jury. Virginia Law Review, 1964.
Mayers, L. The American Legal System, rev. ed. Harper, 1964. Moffat, David.
As Kurors See a Lawsuit. Oregon Law Review, 24, 1944 - 1945. Paulson, M. C. Legal Institutions Today and Tomorrow. Columbia University Press, 1959.
Strodtbeck, Fred. Jury Project. The Jury and the Defense of Insanity, Chapter 2, Boston, 1967.
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