Jury improvement, not reform

The jury is unique among American institutions because it provides the only opportunity for most citizens to become directly involved in decision-making. It is arguably our most democratic institution.

In recent years, a perception has arisen in the media and in public discourse that there is something amiss in American jury trials, that jurors cannot be trusted with decision making about important public matters and that the jury is in need of reform. But since the 1960s, researchers have provided evidence that the overwhelming majority of juries reach conclusions that are, by almost any standard, the “right” ones. They are the ones that judges would have reached, or they are the ones that most other juries would have reached. Media scrutiny of jury verdicts or damage awards in high-profile cases is unavoidable, and it may even be a positive development insofar as the public has become more aware of the mechanics of the jury trial. When a few notorious cases are used to suggest that jury decisions, in general, are suspect, however, such scrutiny can be counterproductive. It can point us towards remedies that curtail the abilities of the jury, when much of the systematic research on the jury, by the American Judicature Society and others, points us in precisely the opposite direction, towards making courts more responsive to the concerns, uncertainties, and comprehension skills of the average juror.

Among serious students of jury deliberations, there are many who would argue that the term “jury reform” is a misnomer. As G. Thomas Munsterman of the National Center for State Courts has argued, a more appropriate term is “jury improvement.” The jury improvement movement has included those who advocate more careful jury summoning and selection procedures; those who advocate streamlining trials to minimize the demands of jury service on citizens; those who advocate new procedures such as juror question asking and note taking during trials; and those who advocate allowing more frequent and clear communications between jury and judge or providing greater guidance to deliberating jurors.

These proposals seek to strengthen the democratic nature of the jury trial. While there is no avowed “anti-jury” movement, many states have considered and rejected proposals such as those listed above on the rationale that not all citizens are well-equipped to serve as jurors. Democracy can be messy and cacophonous, and the jury is no exception. Many arguments for restricting the power or representativeness of the jury have been made on grounds of efficiency, on the grounds that opening up jury procedures too much can bring about more, not fewer, irrational verdicts. But we believe such arguments are groundless.

In their efforts to improve the system, many courts have worked collaboratively with jury researchers to study jury performance and develop experiments that did not harm the integrity of the trial and that were approved by litigants. And such collaboration should continue. In fact, the work of the American Judicature Society on the jury has the twin aims of encouraging new research on jury performance and facilitating communication between researchers and practitioners. Arguments in favor of retention of the status quo, or for anti-democratic remedies to “problems” in the jury system, are unsupported by available evidence. Such arguments must not be allowed to distract from the effort to improve this important institution.