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Arizona Leads The Way In Jury Reform
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By Julia Vitullo-Martin and Michael Rothenberg
Bridge News, February 17, 1997

NEW YORK-Whatever else they have done for better or worse, the O.J. Simpson trials have focused public scrutiny on what New York State Chief Judge Judith Kaye calls "our prized American jury system."All Americans have been able to follow, as closely or as distantly as they wish, two important jury trials, one criminal and one civil. Every element of judicial justice (evidence, courtroom procedure and verdict) has been open for all to see-and judge. Well before the Simpson trials, critics of American juries had proposed such radical reforms as abolishing the jury altogether and substituting panels of professional judges, sometimes along with professional jurors, to decide cases. Such critics argue that ordinary Americans are seldom intellectually able to understand the complex issues involved in civil litigation and often emotionally unable to render fair verdicts in criminal suits.

YET THE ONLY MAJOR STUDY ever undertaken of American jury behavior-one conducted in the mid-1950s by the University of Chicago Jury Project-concluded that a majority of jurors deliberated carefully, rationally and fairly. Our own view, after having interviewed over 2,000 New Yorkers on jury service, is that the Chicago conclusion remains true: Jurors respect their prized civic duty and work hard at being responsible, attentive jurors. Indeed, even though much has changed in society since the relatively benign times of the Chicago study, one statistic has stayed steady. The jury conviction rate has remained in the 60 percent to 70 percent range for the last half century. Further, jurors themselves believe in the system. In a 1993 poll by the National Law Journal, nearly 75 percent of some 800 jurors surveyed said that if they had a case of their own to be tried in the courts, they would choose to have it decided by a jury instead of a judge.

WHAT IS WRONG TODAY-and what needs reform-is not the jurors but the administration of the system in which jurors labor. First, jurors are paid very little. Like any free or very cheap resource, they are too often treated wastefully from the moment they first appear for jury selection until they are excused. Their time is rarely considered valuable, particularly when set against the convenience of judges and lawyers. Jurors are often made to wait for long periods while the court goes about what it considers to be more pressing business.

PROPOSED REFORM: Jurors should be paid at least minimum wage. (Only a handful of states pay more.) Lawyers and other officers of the court who waste the jury's time by, for example, not appearing in court on time should be severely sanctioned. Courts should be reorganized and kept open for judges to hear motions evenings and weekends in order to keep trials moving expeditiously, particularly when jurors are sequestered.

SECOND, the concept of a "jury of peers" has been eroded by the abuse of mechanisms that allow lawyers to manipulate the make-up of a jury. The most blatant tool for this is the peremptory challenge by which either side can get rid of a prospective juror for any reason, however arbitrary. The second most blatant practice is too frequent use of excessively long and intrusive questionnaires. In addition, many states have long lists of exemptions by which professional classes-doctors, teachers, police officers and others-are freed of service.

PROPOSED REFORM: Eliminate peremptory challenges, permitting challenges for cause only. That is, challenges that must be explained and approved by the judge. Require streamlined, simple questionnaires directed at matters of fairness only. Follow the example of New York state and abolish all professional exemptions. Until January 1996, New York state had more professional exemptions (24) than any other state in the union. Podiatrists, physical therapists and Christian Science nurses were among those excluded. This cornucopia of exemptions for favored classes limited the pool from which jurors were drawn, thereby thwarting the Supreme Court's ruling that the constitutionally guaranteed impartial jury be drawn from a cross-section of the community.

THIRD, even though jurors are often asked to decide technical and complicated issues, they are forbidden in many courts from taking notes during testimony, asking questions and discussing the case before being charged by the judge. Jurors are seldom given instructions on the law until right before deliberation. In other words, they are forbidden some of the most basic tools of acquiring and comprehending information.

PROPOSED REFORM: Follow the lead of the state of Arizona and offer jurors instructions on the law at the beginning of the trial. Permit jurors to take notes and to ask questions (perhaps by submitting them in writing to the judge first).Permit jurors to take written copies of the court's instructions into the jury room. And lastly, experiment with allowing the jury as a whole to discuss the case before deliberations.

ARIZONA HAS GONE SO FAR as to publish a bill of rights for jurors. So fundamental is the jury to the justice system that a bill of rights for jurors could function as a bill of rights for the justice system itself. Consider the beneficial effects on the entire justice system if just a few of Arizona's proposed rights for jurors were heeded. We would:

  • Treat jurors with respect and regard for their privacy.
  • Provide comfortable and convenient facilities.
  • Inform jurors of trial schedules, which are then kept.
  • Inform jurors of the trial process and applicable law in clear language.

THESE PLAIN IDEAS-courtesy, comfort, convenience, efficiency and information-would, if fully implemented, help restore both the jury and the justice system to their former pedestal. Jury service is a right and an obligation of citizenship. It is one of the distinguishing features of American democracy, notes Arizona's Judge B. Michael Dann. Yet, he rightly asks, are jurors treated in a manner consistent with their exalted position? In far too many cases, the answer is a definitive no. Citizens should seize this moment to consider and debate the state of the American jury in order to make whatever reforms are necessary to secure once again our right as Americans to a speedy and public trial by an impartial jury.

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Julia Vitullo-Martin is the director of the Citizens Jury Project at the Vera Institute of Justice.
Michael Rothenberg
is coordinator of the project's Ombudservice.

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