Should We Have Professional Juries?
posted by Daniel Solove
According to Legal Profession Blog:
The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”
The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.
What should one conclude from this case?
The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”
But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:
I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .
Additionally, jurors are usually prohibited from taking notes. . . .
In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).
The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?
Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.
Third, many judges disallow note-taking. But in lengthy trials — or even in trials lasting a day or two — how are jurors supposed to remember the details? And in the case Martin describes, the jurors weren’t allowed to take notes about the law when the judge instructed it. I’d like to try an experiment — give a bunch of judges an hour lecture about a specific set of legal rules, not let them take notes, and then see how much they remember. This is difficult even for those with legal training — imagine how hard it must be for those without such training!
Many law professors rail against student-run law reviews, where students select the articles. “How can we let a bunch of amateurs decide which scholarly articles have merit?” so many professors wonder. Professors complain more about this than our legal system, where we have a bunch of amateurs decide cases and apply the law. As Justice Oliver Wendell Holmes once wrote: “[I]f a question of law is pretty clear we [judges] can decide it, as it is our duty to do, if it is difficult it can be decided better by twelve men taken at random from the street.”
At least in civil cases — and perhaps in criminal ones too (this gives me more pause, for the jury’s ability to check the power of the state in criminal cases has significant value in my opinion) — I believe we should have professional juries, with basic knowledge of the law (and perhaps even a full three-year legal education).
In addition to basic knowledge of the law, professional juries should also be trained in the latest empirical evidence that would help them best assess the factual evidence in a case. Jurors should be trained in the studies about the reliability of eyewitness testimony (which isn’t very reliable) so they can weigh it appropriately vis-a-vis other evidence. They should be trained about which cues and aspects of a witness’s demeanor are likely to indicate whether he or she is telling the truth, as currently jurors use their own intuitions in this regard, which may or may not be correct. And so on.
Jurors should be paid a real wage for their services. Currently, we slough off the costs of our legal system on people randomly selected for jury duty.
We’re in the 21st Century, and our legal system uses a method of adjudication that was invented in the Middle Ages. It’s time for a more professional way of resolving legal disputes, one where the decisionmakers are not a bunch of often-unwilling people plucked from the street, forced to upend their lives to resolve the disputes of others, and without the expertise to evaluate the facts and apply the law.
March 20, 2009 at 11:04 am
Posted in: Civil Procedure, Criminal Law, Empirical Analysis of Law, Law Practice, Tort Law
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Responses (18)
dave hoffman - March 20, 2009 at 11:06 am
Dan,
How do you reconcile your view of jury service’s accuracy with the tremendous amount of empirical data that real-world juries agree with professionals (judges) almost all of the time, are less erratic than individual judges, and that jury service significantly increases levels of civic trust and engagement?
Colin Miller - March 20, 2009 at 11:08 am
Here is an interesting article which touches upon this issue to a certain extent:
Bound and Gagged: The Peculiar Predicament of Professional Juries
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1147084
Daniel J. Solove - March 20, 2009 at 11:27 am
Dave,
There are many cases where the outcome is basic common sense, and for these cases, judges and juries are likely to agree. But I found while clerking for a federal district court several more complex cases where the juries didn’t understand the law at all. In some areas, such as fact-finding, juries and judges are equally ignorant of the empirical studies about witness demeanor, truth-telling, etc.
Regarding the fact that juries are less erratic than individual judges, I presume that this is likely the product of the fact that there are 12 jurors versus just 1 judge. Therefore, one specific person’s ideology isn’t likely to have as much of an influence on a jury than with one judge. It would be interesting if there’s a study that compared a jury composed of 12 people randomly selected with a jury of 12 judges.
Regarding civic trust and engagement, that’s a benefit for sure, but should it be at the cost of having a legal system where the decisionmakers lack expertise? If having lay people fly airplanes or do brain surgery or so on led to greater levels of civil trust and engagement, should we do it? There are other ways to generate more civic trust and engagement. I also have a post I’m working on about how jurors aren’t treated particularly well — it is amazing that they feel so good about their experiences, because I think that in many instances, they’re treated terribly.
Chaya - March 20, 2009 at 1:08 pm
Why not just abandon juries altogether and rely on judges, or alternately panels of judges, who are already trained in deciding matters of law? Or adopt the French model and abandon them for all but the most egregious criminal cases? I can’t say I really see any particular advantage to juries especially in civil trials.
I didn’t know that often jurors aren’t allowed to take notes. What possible advantage does that have?? That seems completely unproductive to me.
Bruce Boyden - March 20, 2009 at 1:42 pm
The prohibitions on juror notetaking, and the way instructions are given, make no sense. I’ve long thought that the explanation is that we just don’t care deeply if the jury gets the facts or the law right. The jury is an oracular black box that legitimizes the outcome by making it mysterious, not by making it reliable. It seems in many opinions I’ve read that the existence of the jury is almost a relief for the judicial system — it allows the repeat players (judges) to avoid having to make some very hard calls (not that they don’t already make a lot of hard calls).
Dave, does your “Whose Eyes” article cite the literature you’re talking about? Re: the judge-jury correlation, I’m a little skeptical of that; I imagine a lot of cases are within some zone of uncertainty as to the correct result, and the judge may simply be agreeing that the decision was within that zone of reasonable outcomes. This does not seem inconsistent with my suspicion that, in a lot of cases, the judge has no strong view at all on who should win, and doesn’t even want to form one. Are the judges being asked their opinion beforehand somehow? Or are we just going by the lack of successful JNOV motions?
Howard Wasserman - March 20, 2009 at 4:15 pm
I think the issue of note taking varies by court and even by judge; my federal district judge allowed jurors to take notes and even provided them with notepads.
I believe that the prohibition against notetaking comes from the same (not necessarily realistic) place as the prohibition on sending transcripts into the jury room–we want the jurors to focus on “the evidence” and neither their notes nor the transcript is “the evidence” and, if allowed in the jury room, would distract them from what they are supposed to be paying attention to.
I think I agree with Chaya–if we are going to abandon the jury, let’s just move all the way to judicial fact-finding. Wouldn’t a professional juror eventually morph into a judge anyway, equally knowledgeable about the law as the judge. Plus, judicial fact-finding gives us openness, because the judge must make explicit factual findings and legal conclusions. Which may just prove Bruce’s point–the jury is acceptable because of the mystery and we do not want openness.
Brett Bellmore - March 20, 2009 at 9:29 pm
Well, of course they can’t take notes: What use would mushrooms have for notes?
The jury system in the US is seriously distorted by the efforts of all the other players in the court to deprive the jury of any real power.
Paying jurors a decent wage is a good idea. Having a class of professional jurors a bad one. It would completely defeat the notion of a jury of one’s peers, transforming it into a jury of government employees. The judge and prosecutor are already on the government payroll, often the defense attorney. Add the jury, and what chance would the defendant have?
David Bernstein - March 21, 2009 at 9:15 pm
Amen. BTW, the U.S. is the only country in the world to routinely use juries for civil cases.
dave hoffman - March 21, 2009 at 10:19 pm
The note-taking issue varies from state-to-state, and from Court-to-Court, as howard writes. More generally, check out Vidmar and Hans’ new edition of the American Juries: The Verdict for lots of data about jury performance.
Dan writes: “But I found while clerking for a federal district court several more complex cases where the juries didn’t understand the law at all. In some areas, such as fact-finding, juries and judges are equally ignorant of the empirical studies about witness demeanor, truth-telling, etc.” There’s lots here, but the bottom line question, based on Dan’s anecdotal experience, is whether expert juries (however composed, however selected) would be better than lay juries or judges at fact-finding problems in “complex” cases. I tend to doubt it, except in very specialized patent/damages problems. Given the many benefits of juries (very good credibility finders, strong legitimacy effects, etc.) I wonder why you would be so quick to throw out the entire system for a bare handful of outlier cases.
W/r/t the outliers, I wonder what hypotheses you have as to why the parties, knowing that the jury may misunderstand the law, opt into the civil system by avoiding arbitration or settlement. That is, many complex commercial disputes are already adjudicated by expert arbitrators. Doesn’t that alleviate the concern?
Also, it is unclear why you think that professional adjudicators (i.e., non-judge experts) would be any better at avoiding cognitive biases, anchoring, etc. Check out Rachlinski’s work on judges for a somewhat darker view of the ability of even those expert fact finders to be unbiased!
As to David’s point about ours being a unique system, that’s of course correct. So what? There aren’t terribly many common law countries in the first instance! Isn’t citing to foreign law frowned on these days?
peter - March 22, 2009 at 12:58 pm
Dave — I agree with much of what you say, but I hope your comment about “citing to foreign law” was meant at least half in jest.
First, at least when we are talking about the common law, there is something downright peculiar about the idea that our concepts of tort, contract, etc. derive from the same bases as those in England, Australia, New Zealand, Canada, etc. — but that American exceptionalism has so thoroughly changed them that on its face, it’s evident that we just shouldn’t pay any mind to any of those courts.
Second, if even if one accepted that rather odd view, it would hardly follow that in consequence, these other jurisdictions’ wisdom about the competence of juries in the civil context — an issue that does not turn on doctrine but practical experience — is also irrelevant. Or is the view that (a) the doctrine is easier to understand in the US, and that’s why civil juries make sense here rather than in jurisdictions where it got all complicated, like England and Australia; or (b) that US citizens are more inclined to listen the judge, and digest and apply what the judge says, in those other jurisdictions. So again, I hope that was meant as a joke.
Brett Bellmore - March 22, 2009 at 1:12 pm
I don’t think anybody EVER thought that citizen juries were particularly good triers of fact or law. You look at the historical cases cited as the basis of why we have trial by jury in this country, one thing leaps out at you: They’re all cases of jury nullification, where the jury refused, sometimes at terrible cost, to convict, despite the law and the facts being against the defendant. I mean, let’s face it: William Penn was GUILTY.
The citizen jury is there to be the conscience of the community. It’s there to nullify if need be. This notion immensely offends the legal professionals, who apparently think the law itself is an expression of that conscience, and really, really do not like the thought of themselves as agents of oppression.
And so, they’ve done all they could to deprive the jury of this roll. Which is the only roll they actually are fit to perform.
But that’s not the fault of the jury.
Orin Kerr - March 22, 2009 at 1:13 pm
Dan,
I assume you would agree to be a professional juror?
Diane Levin - March 22, 2009 at 1:48 pm
Dan, the professional jury already exists. It’s called arbitration.
Daniel J. Solove - March 22, 2009 at 2:57 pm
Dave writes: “Given the many benefits of juries (very good credibility finders, strong legitimacy effects, etc.) I wonder why you would be so quick to throw out the entire system for a bare handful of outlier cases.”
Since when are juries good “credibility finders”? My understanding is that people are generally not good at assessing the credibility of witnesses, especially eye-witnesses. This is true for both judges and jurors, but a professionally-trained adjudicator might be much better at assessing credibility.
It strikes me as rather hard to believe that juries can apply the law well. We ask our students to do much of the same thing in law school exams, and there are many who struggle with this task. Law is difficult and complicated! Believing that a jury can possibly understand and apply the law based on hearing it for the first time in one brief lecture strikes me as more preposterous than believing in Bigfoot. Some cases are resolvable by common sense, but as we know, the law and common sense often don’t correspond. In cases where the law is counter-intuitive, I can’t believe that juries really decide based on the law.
So you must believe either one of the following:
1. Juries have an astounding capacity to really understand and apply the law (legal training is so overrated!); or
2. The law doesn’t matter a whole lot in many cases.
Daniel J. Solove - March 22, 2009 at 3:10 pm
By the way, when I refer to professional juries, I am referring to a jury that has training in the law as well as training in fact-finding. Professional juries should be trained in how to evaluate witness credibility, about the reliability of eye-witness testimony (which is highly unreliable), as well as about other empirical studies regarding how best to assess witnesses and facts.
Diane — it is true that arbitration is a kind of professional jury, but arbitrators often don’t have the kind of training I envision above.
It is interesting that currently so few cases wind up going to trial. Most criminal cases plea out and most civil cases settle. I’ve often heard attorneys talk about a jury trial as a “crapshoot” or a “gamble.” So our system works as follows: It encourages people to settle/plea because the alternative is basically very-expensive and fraught with a significant degree of randomness/arbitrariness.
Brett Bellmore - March 22, 2009 at 8:01 pm
So, what’s the next item on the agenda, after abolishing the citizen jury? Mandating that you have a law degree to hold public office?
My personal opinion is that, on the day we get “professional” jurors, Claire Wolfe’s “awkward stage” will have ended.
Chris - March 23, 2009 at 2:07 pm
A law professor screws up a pretty basic thing as far as juries go, and your response is that non-professional juries are idiots and that people like law professors should be full-time jurors. Attorneys talk about juries as crapshoots and gambles all the time – particularly when they are engaging in CYA. Yet I also hear a lot of attorneys say that more or less juries usually get it right (the real crapshoot tends to be damages). Above all else, your notion of juries is incompatible with our system of justice. You are advocating for the elimination of jury trials in favor of bench trials – only it isn’t one professional judge making the calls on fact, it is several. Amazingly, even judges (and law professors sitting on juries) aren’t always right and they bring their own biases and problems into the courtroom (how many appellate lawyers think their appeal at the 9th Circuit is a crapshoot?). The jury is meant to reflect the common sense judgment of the community – I don’t see how your proposal protects that.
Monte - March 23, 2009 at 2:59 pm
My fear with a proffesional jury would be that over time the jurors would loose thier independence from the system. If your a juror for a small county, and the professional jury pool isn’t that large, you will quickly come to know the prosecutor, the judge, and in some cases the police officer witnesses. I don’t think you could let it get to the point the same juror had the defendant more than once. But when the juror has already relied on a witnesses testimony once, and agreed with the same prosecutor once, are they really going to be able to freshly evaluate the new case? Certainly the training could cover it, but will that really be enough? When the judge and prosecutor start to run together as part of the system, the only hope left is that the jurors will be an effective check.
The other problem is who exactly do you fill the professional juror pool with. Will it be an upper middle class group? A true cross-section of society? (But if they are getting paid $60,000+ a year, for how long does a juror represent thier ‘old’ economic class? Everyone could support a profesional jury system because they imagine it would be full of intelligent thoughtful people just like themselves, but who would really be serving in the system?
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