Vol. 5, No. 3 (March, 1995) pp: 111-115
WE, THE JURY: THE JURY SYSTEM AND THE IDEAL OF DEMOCRACY by
Jeffrey Abramson. New York: Basic Books, 1994. 308 pp. Cloth
$25.00.
THE JURY: TRIAL AND ERROR IN THE AMERICAN COURTROOM by Stephan J.
Adler. New York: Times Books, 1994. 285 pp. Cloth $25.00
Reviewed by James P. Levine, Doctoral Program in Criminal Justice
and Department of Government, John Jay College, City University
of New York.
On the last page of his book on the American jury system, Jeffrey
Abramson says: "By the time this book reaches print, there
undoubtedly will be fresh trials splashed across the headlines
and animating dinner conversations across the land." (p.
250) Little did he realize how prophetic he would be, as we are
now being treated to daily television coverage and hourly recaps
of what has been called the "trial of the century" --
the O. J. Simpson case. Pundits galore have been rendering
interpretations of the case as it unfolds, but Abramson's
thoughtful book which came out before the trial started has much
more to offer in helping us understand and assess the jury's role
in that case and others. Whether Simpson's jury convicts, acquits
or hangs, Abramson's book will help us understand what happened.
It is a useful addition to the still too-sparse book-length
literature on juries.
The focus of WE, THE JURY is policy analysis; Abramson is
interested in assessing the jury system and critiquing specific
practices. Thus, specific chapters focus on policy questions that
have been debated historically and continue to cause controversy
today: the appropriate venue for trials, jury nullification, jury
selection practices such as the use of peremptory challenges, the
expanding utilization of "scientific" jury selection,
the unanimous verdict rule, and the jury's role in capital cases.
Treatment of these issues is aided by two perspectives that
infuse the book's contents -- careful description of the jury's
historical evolution and rooting of the analysis in a normative
theory about democratic politics. In arguing that the jury's
strengths and weaknesses emerge from its popular base, Abramson
helps us understand decisions such as the first Rodney King
verdict which have so damaged the jury's reputation. In his own
words: "The direct and raw character of jury democracy makes
it our most honored mirror, reflecting both the good and the bad
that ordinary people are capable of when called upon to do
justice." (p. 250) At its best, the jury in Abramson's
estimation functions as a uniquely deliberative populist
institution, an opportunity for a relatively diverse group of
citizens to apply law and interpret evidence drawing on their own
experience and responding to their own values. In critiquing
various jury practices, Abramson starts from an unabashedly
stated ideological position: he favors "deliberative
democracy." He wants to enhance cross-cultural communication
on the jury which he thinks makes judgments fairer and more
rational, but he deplores policies such as proportional
representation of races, ethnic groups, and genders which would
turn jury decision-making into little more than an instrument of
pluralist politics. His particular version of democratic theory
works well enough in assessing certain policies such as
broadening of jury pools and elimination of
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peremptory challenges, but it fails to help him reach consistent
positions on other issues. He favors informing juries of their
power to acquit the factually guilty if applying the law would be
unjust as a means of democratizing law enforcement, but he would
remove the jury's role in making death penalty decisions because
studies have shown a degree of racial prejudice at work. This
inconsistency is forgivable, however, as an inevitable result of
Abramson's refreshing pragmatism -- his recognition that there
are other values such as combating racism that compete with
democratic ideals in the fashioning of optimal judicial
processes.
Little new ground is broken in WE, THE JURY but a copious amount
of important information on juries is assembled with commendable
documentation produced in the forty-five pages of notes. There is
perhaps a bit of excess: some of the material is a restatement of
well-known historical material, such as the lengthy treatment of
John Marshall's handling of jury selection in the Aaron Burr
treason case. Similarly, while the well-respected empirical study
of life-or-death decisions made by Georgia juries in capital
cases done by Baldus and his colleagues is indeed worthy of
substantial coverage, one wonders if it was necessary to give so
much detail that footnotes 74 through 136 in Chapter 6 (pp.
295-296) are with one exception references to Baldus's book. But
since this is a book primarily intended for a lay audience most
of whom are unaware of these materials, such substantial
borrowing from the work of another is perhaps justifiable.
There are occasional tidbits which even assiduous students of the
jury probably do not know like the wholesale exclusion of Native
Americans from the jury (p. 129). Illuminating insights also
appear in the text, such as the point that a person willing to
presume a defendant's guilt in a jury consultant's poll where
there are no consequences might well be more open-minded while
performing the truly awesome responsibility of actually serving
as a juror (p. 159). But the jury research community should not
expect to discover a great amount of new data, as the strength of
this book is in its plausible interpretation of facts already
known.
While Abramson's treatment of the literature on juries is rather
comprehensive, there is one glaring omission -- the voluminous
body of mock jury studies. Although such simulations have
profound methodological shortcomings which have been detailed
elsewhere, their sophistication has improved markedly in recent
years and they have helped us understand many aspects of jury
decision-making such as the jury's handling of different kinds of
evidence. Abramson brings in some such material when he treats
the relationship between juror demography and bias, but treatment
of other issues such as jury nullification would have been better
informed by touching base with this kind of research.
It is not surprising that Abramson should largely ignore this
body of work, as he comes to the study of the jury from his roles
as a practicing lawyer and a political theorist. This vantage
point is a source of the book's strength in coming to grips with
pithy normative issues, but it also contributes to
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occasional flaws in analysis. Demonstrating the causal impact of
assorted variables on jury decision-making is no mean feat, but
Abramson's distance from the world of empirical social science
occasionally causes him to slip into dubious cause-and-effect
claims. Thus, in dismissing the impact of scientific jury
selection on a Los Angeles jury's failure to convict Peggy
McMartin and her son of sexually abusing children at their
pre-school, Abramson says: "The fact that a second jury also
deadlocked is further indication that the verdicts were the
result of flawed evidence not perfect jury selection (p.
170)." There is simply no way to show conclusively what
factors were at work by comparing outcomes in two trials.
This, however, is nitpicking. Such lapses are few, and they are
minor. WE, THE JURY formidably tackles many of the central issues
that command the attention of those of us who study juries. It
provides many rich historical and contemporary illustrations to
show the evolution of the American jury, exposing its positive
features and its pitfalls. It is not surprising that its author
is a professor of politics, because unlike many works on the jury
this one cogently fuses description of its functioning with
important issues of political theory. Alexis de Tocqueville, who
a century-and-a-half ago rightly noted in DEMOCRACY IN AMERICA
that the jury was "above all" a political institution,
would be proud of the book. So should the contemporary profession
of political science.
In contrast to Abramson's balanced presentation, Stephan Adler's
tract is a thinly-veiled attack on the jury as it presently
functions. Despite lip-service paid to some of the jury's virtues
and a conclusion that argues that it is an institution worth
keeping, the author's anti-jury predilections emerge early in the
book and set the tone throughout. Adler's contempt for juries is
no secret.
Adler is the legal editor for the Wall Street Journal. This no
doubt accounts for the book's format: it is reportage, a series
of six case studies based primarily on examination of transcripts
and interviews with jurors. To Adler's credit, several of the
cases he looks at escaped the glare of publicity; there is new
material for the jury connoisseur, much of it unearthed by dogged
investigation and presented in a riveting, well-written fashion.
But to a much greater extent than Abramson, Adler uses his
material to jump to unwarranted conclusions about the bases of
jury decisions. The cases are grist for his polemic, not
heuristics to help us better understand jury functioning.
Except for the conclusion, each chapter of this book details a
particular case in which the jury's verdict is second-guessed. He
is impressed with one verdict, a Texas jury's decision to
sentence to death a triple murderer (who himself had been a
victim of severe child abuse). As for the other verdicts, Adler
is at odds with the juries who are portrayed as biased,
manipulated, or just plain stupid. These blunders, such as the
acquittal of Filipino "first lady" Imelda Marcos in the
face of substantial incriminating evidence of financial
skullduggery, reveal the ineptness of the jury and the dire need
for reform. As Adler himself puts it, the wonderful promise of
the jury suggested in so many judicial opinions and much
political rhetoric is dashed by the keen disappointment of its
woeful
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behavior. The cardinal flaw in the analysis is the assumption
made by Adler that he is right and the jury is wrong. This is an
error parallel to the one made by Kalven and Zeisel in their
classic work THE AMERICAN JURY (Boston: Little Brown, 1996) where
they assumed that judges presiding over jury trials could figure
out the correct outcome and that any discrepancy with actual jury
verdicts was the result of extralegal factors that contributed to
the juries' mistaken results. Just as it may have been the juries
in such cases who were correct and the judges who were wrong, so
too here: Adler's version of reality could well be off-base and
the juries may have gotten it right.
The consistent direction of the discrepancy between the author's
judgement and the juries' verdicts renders the analysis
particularly suspect. In the two criminal cases, the jury acquits
when Adler would have convicted. In the three civil cases, the
jury opts for the plaintiff (in one case awarding $8.15 million)
when Adler sees no liability at all. Could it be that Adler's own
pro-prosecution, anti-plaintiff conservatism interfered with his
ability to see things objectively?
We will never know the answer. For despite the admirable care
that went into these investigations, it is methodologically
impossible to know with certainty what "really"
happened and to put one's fingers on the "real" causes
of the jury's decisions; it is all guesswork. He claims in his
review of a suit against Pizza Hut for having served too much
beer to someone who wound up hitting a bicyclist with her car
that the jury was swayed by lawyers' shrewd appeals concocted on
the basis of prior case presentations to a focus group engineered
by a jury consultant. Says Adler, in explaining why Pizza Hut
settled the case after a mistrial rather than risk a second
trial: "[Jury consultant] Art Patterson's behind-the-scenes
advice to [lawyer] Cohen had proved crucial in forcing Pizza
Hut's hand." (p. 113) But for the focus group, Pizza hut
would have won and justice (in Adler's view) would have
triumphed.
This conclusion is specious. Not only is it impossible to ferret
out the decisive influence on the jury, but this is just the kind
of case where facts and values are inherently mixed and the jury
is forced to make some kind of political judgment. In assigning
blame for injuries caused by a drunk driver, the jury had to
examine the chain of responsibility. And in so tracing it back to
a business which refused to train its employees about refusing to
serve alcohol to intoxicated patrons, the jury had to make a
judgement about the social responsibilities of corporations.
Perhaps there are no right or wrong answers, but alternative
outcomes the legitimacy of which depends on one's political
perspective.
I am a supporter of the case study in jury research, recently
having written a still unpublished defense of this methodology.
But the major drawbacks of this approach, threats to
"internal validity" and the perils of drawing
conclusions about causation, undermine Adler's analysis. It is
incumbent on practitioners of this methodology to use utmost
caution as they unravel the underpinnings of verdicts, and this
Adler
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failed to do. In an instructive little book entitled CASE STUDY
RESEARCH: DESIGN AND METHODS (Newbury Park, CA: Sage, 1989),
Robert Yin gives the following sage advice: "Case study
research is remarkably hard, even though case studies have
traditionally been considered 'soft' research. Paradoxically, the
'softer' a research technique, the harder it is to do (p.
26)." Although Adler makes valiant attempts to use other
studies to bolster his analysis, the cases are the foundation of
his analysis and the overly facile conclusions which he reaches
demonstrate the wisdom of Yin's words. Adler's damnation of the
jury is not justified empirically.
The jury is a hard nut to crack; it remains a mystery. It
deliberates in secret; it files no report explaining what it did;
and it generally disappears into anonymity after presenting its
verdict. Mock jury research can probe some of its dynamics, but
concerns about the artificiality of such simulations do not go
away. Thus, for all the outpouring of articles on the jury in
social science and legal periodicals, our knowledge of the jury
is still primitive.
This is all the more reason why both Jeffrey Abramson and Stephan
Adler deserve congratulations. Without waiting for "all the
data to be in" which will take decades if not centuries,
they dare to give us the "big picture" -- a portrait
and an evaluation of an enigmatic institution which is an
enduring source of political debate. Anyone who would like to
have more enlightened perspectives in partaking in these debates
would do well to read these two books.