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Jury

In trials, a group of people who are selected and sworn to inquire into matters of fact and to reach a verdict on the basis of the evidence presented to them.

In U.S. law, decisions in many civil and criminal trials are made by a jury. Considerable power is vested in this traditional body of ordinary men and women, who are charged with deciding matters of fact and delivering a verdict of guilt or innocence based on the evidence in a case. Derived from its historical counterpart in English Common Law, trial by jury has had a central role in U.S. courtrooms since the colonial era, and it is firmly established as a basic guarantee in the U.S. Constitution. Modern juries are the result of a long series of U.S. Supreme Court decisions that have interpreted this constitutional liberty and, in significant ways, extended it.

History

The historical roots of the jury date to the eighth century a.d. Long before becoming an impartial body, during the reign of Charlemagne, juries interrogated prisoners. In the twelfth century, the Normans brought the jury to England, where its accusatory function remained: Citizens acting as jurors were required to come forward as witnesses and to give evidence before the monarch's judges. Not until the fourteenth century did jurors cease to be witnesses and begin to assume their modern role as triers of fact. This role was well established in British common law when settlers brought the tradition to America, and after the United States declared its independence, all state constitutions guaranteed the right of jury trial in criminal cases.

Viewing the jury as central to the rights of the new nation, the Founders firmly established its role in the U.S. Constitution. They saw the jury as not only a benefit to the accused, but also as a check on the judiciary, much as Congress exists as a check on the Executive Branch. The Constitution establishes and safeguards the right to a trial by jury in four ways: Article III establishes this right in federal criminal cases; the Fifth Amendment provides for grand juries, or panels that review complaints in criminal cases, hear the evidence of the prosecutor, and decide whether to issue an indictment that will bring the accused person to trial; the Sixth Amendment guarantees in serious federal criminal cases the right to trial by a petit jury, the most common form of jury; and the Seventh Amendment provides for a jury trial in civil cases where the amount in controversy exceeds $20.

Minnesota's Approach to a More Diverse Jury Pool

Many urban areas have encountered difficulties in providing racially and economically diverse jury pools. Critics of the criminal justice system point out that people of color are overrepresented in the number of individuals arrested, prosecuted, and imprisoned, and underrepresented on criminal juries.

In 1993 the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System issued a report that called for changes in jury management, so as to encourage diversity in juries. The judicial system took several steps to respond to the report.

The Minnesota Supreme Court amended jury management rules to authorize Hennepin and Ramsey Counties, the most populous and racially diverse counties in the state, to adopt new jury selection procedures that guarantee that, by percentage, minority group representation on the Grand Jury is equal to that in the two counties. Hennepin County implemented a plan that allows grand jurors to be selected randomly unless there are no people of color among the first twenty-one jurors selected, in which case the selection process continues until at least two of the twenty-three grand jurors are people of color.

At the state level, the judicial system secured funds from the legislature to raise the rate of daily juror pay and to pay for drop-in day care for jurors who normally do not use day care. The system also began to reimburse jurors for their mileage to and from the courthouse. These steps were taken to decrease the economic hardship on potential jurors who might otherwise ignore a jury summons or ask to be excused.

The modern jury is largely a result of decisions of the U.S. Supreme Court, which has shaped and sometimes extended these constitutional rights. One important decision was the Court's 1968 ruling in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, which requires states to provide for jury trials in serious criminal cases. Prior to Duncan, states had their own rules; Louisiana, for instance, required juries only in cases where the possible punishment was death or hard labor. The Court declared that the right to a jury trial is fundamental. In cases in which the punishment exceeds six months' imprisonment, it ruled, the due process clause of the Fourteenth Amendment requires that the protections of the Sixth Amendment apply equally to federal and state criminal prosecutions.Defendants may, under some circumstances, refuse a jury trial in favor of a trial before a judge. In 1965, the U.S. Supreme Court ruled that the constitutional right to a jury trial does not imply a related right to refuse one (Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630). It observed that juries are important not only to the defendant but also to the government and the public. The government, it wrote, has an interest in trying cases "before the tribunal which the Constitution regards as most likely to produce a fair result." Thus, in federal cases, rules governing Criminal Procedure allow a defendant to waive a jury trial only if the government consents and the court gives its approval. States vary in their approach, with some, such as Nebraska and Minnesota, requiring only the court's approval and others, such as Illinois and Louisiana, granting the defendant's wish as long as the decision is informed.

In 2002, a Jury Innovations Committee established in Florida offered no fewer than 48 jury-reform suggestions designed to make the system more efficient and user-friendly. The suggestions included requiring jury instructions to be made clearer and to allow jurors to discuss evidence as it is presented, instead of after deliberations begin.

Should the Peremptory Challenge Be Abolished?

aperemptory challenge permits a party to remove a prospective juror without giving a reason for the removal. This type of challenge has had a long history in U.S. law and has been viewed as a way to ensure an impartial jury. However, use of the peremptory challenge changed as a result of the U.S. Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny, and the changes have led some lawyers and legal commentators to call for its Abolition. They argue that these Court decisions have deprived lawyers of their absolute discretion in using the challenges and have turned peremptory challenges into challenges for cause. Defenders of the peremptory challenge believe that the new race, gender, and religious affiliation requirements initiated by Batson simply ensure that jurors will not be excluded on the basis of stereotypes.

Those who favor retention of the peremptory challenge point to its four purposes: The peremptory challenge allows litigants to secure a fair and impartial jury. It gives the parties some control over the jury selection process. It allows an attorney to search for biases during the selection process without fear of alienating a potential juror. If, for example, a juror appears offended by the nature of the questioning, that juror can be excluded even if the answers she gives do not demonstrate bias. Finally, the peremptory challenge serves as an insurance policy when a challenge for cause is denied by the judge and the challenging party still believes that the juror is biased.

Defenders of the peremptory challenge contend that the limitations imposed by the Supreme Court have not substantially impaired the use of the challenge. As a result of Batson, a peremptory challenge can be questioned by the opposite side if that side believes that it was based solely on race or gender. The reasoning behind this change is that striking jurors on the basis of race or gender perpetuates stereotypes that were prejudicial and that were based on historical discrimination. The only way to correct this record is to allow a party to establish a Prima Facie case of racial or gender discrimination. Defenders believe that to say Batson introduced race into the jury selection process is to ignore the part race has already played in the use of peremptory challenges. The other side has the opportunity to offer a nondiscriminatory reason for the challenge. The reason does not have to rise to the level of a "for-cause" challenge. It merely has to be a reasonable concern that can be articulated. Defenders of the challenge argue that this is an acceptable modification of the challenge.

They also point out that other characteristics of jurors are not bound by the Batson line of cases. A peremptory challenge based on a juror's religion, age, income, occupation, or political affiliation cannot be questioned as long as it is not a pretext for concealing race or gender bias. Therefore, argue supporters, the peremptory challenge is still a valuable tool in trial proceedings.

Those who argue for the abolition of the peremptory challenge come from two camps. One camp believes that the Batson line of cases was a mistake. This group would prefer to return to unrestricted use of the challenge but, knowing that overturning precedent is unlikely, recommends eliminating the challenge. The other camp believes that the racial, gender, and religious affiliation tests crafted by the courts are idealistic creations that are easily subverted in daily courtroom practice. The reality is that allegations of bias using Batson rarely are successful.

The group that believes that the changes following Batson were a mistake argues that the whole point of the peremptory challenge is that it is made totally within the discretion of the lawyer. A trial lawyer may have a gut feeling about a juror, a feeling that is difficult to articulate to a judge and does not rise to a for-cause strike. Prior to Batson a court would allow this type of peremptory challenge. Since Batson the lawyer is required to articulate a reason. The temptation for the lawyer is to invent a "reasonable" explanation rather than risk having the peremptory challenge denied.

These critics argue that the only way for a lawyer to protect a client under this new system is to interrogate prospective jurors concerning intimate, personal matters in order to create defensible grounds for striking them. Lawyers must take more notes during questioning and spend more time evaluating the answers of jurors. The selection of a jury is lengthened if this tactic is chosen, placing more pressure on an overtaxed court system. Therefore, contend these critics, it would be better to abolish peremptory challenges and try other methods of jury selection. One alternative is expanding challenges for cause, allowing lawyers to exclude prospective jurors for legitimate, articulated reasons that do not satisfy the tougher current standards of challenges for cause.

The other group that questions Batson points to the difficulty of achieving the racially neutral selection of a jury. Surveys have shown that motions to deny peremptory challenges because of race or gender bias are rarely made, and that when they are judges accept all types of questionable race-neutral explanations to refute them. Thinking in the legal community over this issue has led state judiciaries to reflect on the best course to take. For example, the Florida Supreme Court-appointed Jury Innovations Committee issued a report in 2002 that recommended the elimination of peremptory challenges.

Further readings

Griebat, Jeb C. 2003. "Peremptory Challenge by Blind Questionnaire: The Most Practical Solution for Ending the Problem of Racial and Gender Discrimination in Kansas Courts While Preserving the Necessary Function of the Peremptory Challenge." The Kansas Journal of Law & Public Policy 12 (winter).

Jones, Barbara. 2003. "Peremptory Challenge Should Have Been Granted." Minnesota Lawyer (July 14).

Montz, Vivien Toomey, and Craig Lee Montz. 2000. "The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law." Univ. of Miami Law Review 54 (April).

Cross-references

Litigation.

Jury Selection

Jury selection is the process of choosing jurors. Not all people are required to serve on the jury: Some individuals and members of some occupational groups may be excused if serving would cause them or their family hardship. The U.S. Supreme Court has held that the Sixth Amendment merely requires that jurors be selected from a list that does not exclude any identifiable segment of the community (Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 [1975]).Federal courts select grand and petit juries according to the guidelines in the Jury Selection and Service Act of 1968 (28 U.S.C.A. §§ 1861–78 [2000]). Generally, most communities use voter-registration lists to choose prospective jurors, who are then summoned to appear for jury duty. This group of prospective jurors is called a venire.

Once the venire is assembled, attorneys for both the prosecution and the defense begin a process called Voir Dire. Literally meaning "to speak the truth," voir dire is a preliminary examination of the prospective jurors, in order to inquire into their competence and suitability to sit on the jury. Although the judge may ask questions, it is primarily the attorneys who do so. Their goal is to eliminate jurors who may be biased against their side, while choosing the jurors who are most likely to be sympathetic. Attorneys for each side are allowed to reject potential jurors in two ways. They may dismiss anyone for cause, meaning a reason that is relevant to that person's ability and fitness to perform jury duty. And they may issue a limited number of peremptory challenges, which are dismissals that do not require a reason.

The process of voir dire—especially in the exercise of peremptory challenges to custom design a jury—has provoked controversy. Defendants may challenge a venire, alleging discrimination, but such complaints are difficult to prove. Thus, critics of the selection process have argued that it skews the composition of juries according to race, class, and gender. In 1990, the U.S. Supreme Court held that juries need not represent a cross section of a community, but merely must be drawn from a pool that is representative of the community (Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905). In 1991, it forbade prosecutors to use their peremptory challenges to exclude potential jurors on the basis of race (Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411). In 1999, the Supreme Court of Connecticut ruled that prospective jurors could not be dismissed solely on account of their religious beliefs, except when those beliefs would keep them from performing their duties on the jury (State v. Hodge, 726 A.2d 531 [Conn. 1999]). Along with other complaints—on issues ranging from efficiency to fairness—the decisions provided advocates of jury reform with further ammunition for their efforts to change fundamentally, and even to eliminate, juries.

Jury Size

Juries range in size according to their nature. Grand juries are so named because they are usually larger than petit juries, having from 12 to 23 members. Traditionally, petit juries have had 23 members, but the number is not fixed. In 1970, the U.S. Supreme Court held that the number 12 was not an essential element of trial by jury (Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446), and it has sanctioned juries of no fewer than six members in criminal cases (Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 [1978]). Parties in federal district courts, as well as in many state courts, can stipulate that the jury size be any number between six and 12. Commonly, federal district court juries consist of six persons for civil cases.

Jury Instructions

Throughout a trial, the jury receives instructions from the judge. The judge explains the relevant points of law, which the jury is bound to accept and to apply. The judge directs the jury to disregard inadmissible testimony and provides guidelines on the way to behave outside of court. During the 1995 trial of O. J. Simpson for the murder of his estranged second wife and a friend of hers, for example, Judge Lance Ito issued daily orders to jurors not to discuss the case with anyone. Some instructions vary across jurisdictions and according to judges, such as whether jurors will be allowed to take notes during the trial; generally, they may not. In certain highly publicized trials, the judge may sequester the jury—that is, isolate its members in private living quarters such as hotel rooms in order to shield them from trial publicity. Violating the judge's orders can result in a juror being dismissed from the trial in favor of an alternate juror.

Jury Verdict

Following the closing arguments in a trial, jurors deliberate in private to arrive at a verdict, which is then reported to the court by the jury foreman or forewoman. Defendants in federal jury trials have the right to a unanimous verdict. This is not true in state jury trials, where the size of the jury determines whether unanimity is required: A 12-member jury may convict without unanimity, whereas a six-member jury may not.

In some cases, consensus among jurors is very difficult to reach. When jurors fail to reach an agreement, the judge may issue an instruction known as an Allen charge, in which the judge tells the jurors to continue deliberating and to listen carefully to each other and to be deferential toward each other's views. Continued failure to arrive at a verdict results in a hung jury, which necessitates a new trial with a different jury.

In criminal trials in most jurisdictions, the jury's job ends with the delivery of a verdict of guilt or innocence on every count pertaining to the case, and the judge determines sentencing. In civil cases, juries generally determine the amount of a damages award.

Jurors sometimes exercise their right to protest against a law that they consider unfair or unjust by voting "not guilty" even though the defendant is guilty of violating that law. This practice is called jury nullification and it goes back to colonial times. An example of Jury Nullification would be when a juror who believes that marijuana should be legalized votes "not guilty" in a case in which the defendant is accused of growing marijuana. The Fully Informed Jury Association (FIJA), founded in 1989, provides information about jury nullification to prospective jurors who might not know that it exists as an option.

Further readings

Amar, Akhil Reed. 1995. "Reinventing Juries: Ten Suggested Reforms." University of California at Davis Law Review 28 (summer).

Conrad, Clay S., 1998. Jury Nullification: The Evolution of a Doctrine. Washington, D.C.: Cato Institute.

Leach, Brian E. 1995. "Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?" Southern Illinois University Law Journal 19.

Minnesota State Court Administration. Office of Research and Planning. 1993. Minnesota Supreme Court Task Force on Racial Bias in the Judicial System: Final Report. St. Paul.

Minnesota State Court Administration. Office of Research and Planning. Implementation Committee on Multicultural Diversity and Fairness in the Courts. 1995. Progress Report. St. Paul.

——. 1994. Progress Report. St. Paul.

Montoya, Jean. 1996. "The Future of the Post-Batson Peremptory Challenge." University of Michigan Journal of Law Reform 29.

Sklansky, Joseph J. 1996. "Right to Jury Trial." Georgetown Law Journal 84 (April).

Cross-references

Due Process of Law; Grand Jury.

jury

n. one of the remarkable innovations of the English Common Law (from the Angles and Saxons, but also employed in Normandy prior to the Norman Conquest in 1066), it is a group of citizens called to hear a trial of a criminal prosecution or a lawsuit, decide the factual questions of guilt or innocence, or determine the prevailing party (winner) in a lawsuit and the amount to be paid, if any, by the loser. Once selected, the jury is sworn to give an honest and fair decision. The legal questions are determined by the judge presiding at the trial, who explains those issues to the members of the jury (jurors) in "jury instructions." The common number of jurors is 12 (dating back a thousand years), but some states allow a smaller number (six or eight) if the parties agree. For a plaintiff (the party suing) to win a lawsuit with a jury, three-quarters of the jurors must favor the claim. Guilt or innocence in a criminal trial requires a unanimous decision of the jury, except two states (Oregon and Louisiana) allow a conviction with 10 of 12 jurors. Juries have greatly changed in recent decades, as the term "impartial jury" in the Fifth Amendment to the Constitution requires that the pool of jurors must include all races, ethnic groups, and women as well as men in percentages relative to the general population. Any failure to achieve that balance, or systematic challenges to those of the same ethnicity of the accused, may result in a claim on appeal that the jury was not fair---in popular jargon, not "a jury of one's peers." This does not mean that a Samoan male must be tried by other Samoan males, but it does mean that the potential jurors must come from a balanced group. Members of the jury are supposed to be free of bias, have no specific knowledge of the case, and have no connection with any of the parties or witnesses. Questions are asked by the judge and attorneys (called "voir dire") during jury selection to weed out those whom they may challenge on those grounds (challenge for cause). Some potential jurors are challenged (peremptory challenge) because the attorney for one side or the other feels there is some hidden bias. In well-financed cases this has led to the hiring of jury "specialists" and psychologists by attorneys to aid in jury selection. In a high-profile criminal case in which the jury might be influenced by public comment or media coverage during trial, the court may order the jury be sequestered (kept in a hotel away from family, friends, radio, television, and newspapers.) (See: juror, jury trial, challenge for cause, peremptory challenge, voir dire, jury panel, sequester, venire)

jury

noun adjudgment body, adjudicators, arbiters, arbitrators, array, assessors, body of jurors, determiners, judges of the facts, jurymen, panel, reviewers of fact, talesmen, tribunal, triers of fact
Associated concepts: acquittal by a jury, advisory jury, charge to the jury, empaneling a jury, fair and impartial jury, foreman of the jury, Grand Jury, hung jury, impartial jury, instructing the jury, invading the province of the jury, Petit Jury, polling a jury, right to trial by jury, Special Grand Jury, swearing of the jury
Foreign phrases: Matter en ley ne serra mise in boutche del jurors.A matter of law shall not be put into the mouth of jurors. Paribus sententiis reus absolvitur. When the opinions are equal, where the court is equally divided, the defendant is acquitted. Nemo qui condemnare potest, abbolvere non potest. No one who can convict is unable to acquit. Patria laboribus et expensis non debet fatigari. A jury ought not to be troubled by labors and expenses. De jure judices, de facto juratores, respondent. Judges deeide questions of law, jurors, questions of fact.
See also: panel

jury

a group of persons (in England and Wales 12, in Scotland 15) selected at random to decide the facts of a case and to deliver the verdict.

JURY. A body of men selected according to law, for the purpose of deciding some controversy.
     2. This mode of trial by jury was adopted soon after the conquest of England, by William, and was fully established for the trial of civil suits in the reign of Henry II. Crabb's C. L. 50, 61. In the old French law they are called inquests or tourbes of ten men. 2 Loisel's Inst. 238, 246, 248.
     3. Juries are either grand juries, (q.v.) or petit juries. The former having been treated of elsewhere, it will only be necessary to consider the latter. A petit jury consists of twelve citizens duly qualified to serve on juries, impanelled and sworn to try one or more issues of facts submitted to them, and to give a judgment respecting the same, which is called a verdict.
     4. Each one of the citizens so impanelled and sworn is called a juror. Vide Trial.
     5. The constitution of the United States directs, that "the trial of all crimes, except in cases of impeachment, shall be by jury;" and this invaluable institution is also, secured by the several state constitutions. The constitution of the United States also provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. Amend. VII.
     6. It is scarcely practicable to give the rules established in the different states to secure impartial juries; it may, however, be stated that in all, the selection of persons who are to serve on the jury is made by disinterested officers, and that out of the lists thus made out, the jurors are selected by lot.

References in periodicals archive ?
One need look no further than the cases on jury size and jury unanimity(283) to see that community representation is a Sixth Amendment value at the level of the seated petit jury.
The Batson rule presented the Holland Court with a lower, and more workable, threshold, much like the one the Court adopted in its jury size and jury unanimity cases.
The Court's jury size and unanimity cases show that the "jury" described in the Sixth Amendment is not just an impartial body, but also a representative one.