Michael S. Greco
President, American Bar Association
The Jury Trial System
And the Independence of the Legal Profession in the United States
Collegium of Advocates
Almaty, Kazakhstan
March 6, 2006
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It is a great pleasure to be in Kazakhstan. I thank the Almaty Collegium for
inviting me to address the group today, and look forward to a lively and productive
discussion.
My remarks today will focus on two areas of the legal system in the United
States: first, issues relating to jury trials and second, the independence of the legal
profession generally.
I understand that Kazakhstan has recently adopted a law creating a jury trial
system for certain serious crimes, and that many of you are interested in learning more
about how jury trials function in other countries. I hope that my observations on how the
jury trial system operates in the United States may be of some value to you as you
prepare to begin trying cases to juries.
The United States has used jury trials for both criminal and civil cases from the
very beginning of its existence. The right to a speedy, public trial by jury for all persons
accused of a crime is guaranteed by the Sixth Amendment to the US Constitution. This
constitutional right guarantees criminal defendants an impartial jury drawn from the
state or district where the crime is alleged to have occurred.
The Sixth Amendment also spells out the elements of a jury trial for criminal
defendants: criminal defendants are entitled to know the charges against them, to
confront witnesses against them and to call witnesses in their favor.
The Sixth Amendment also guarantees criminal defendants in the United States
the assistance of counsel in their defense, as does the revised Code of Criminal
Procedure in Kazakhstan. (See Articles 68-69 of the Kazakhstan Code of Criminal
Procedure, amended in 2002 by Law No. 363.)
It is important to note that for much of American history, poor defendants who
could not afford to hire a lawyer did not enjoy the full benefits of the right to counsel. It
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was not until the 1963 United States Supreme Court decision in Gideon v. Wainwright
that poor, or indigent, criminal defendants were guaranteed a lawyer, paid by the state,
if they could not afford one themselves.
Under the common law system used in the United States, jury trials are also
guaranteed for lawsuits in civil matters. The Seventh Amendment to the US
Constitution provides this right – originally set at all cases involving more than twenty
dollars, and subsequently increased to exclude minor cases that are now heard by
judges in “small claims” courts.
In practice, most criminal prosecutions and civil matters in the United States do
not reach a jury trial, although the right exists for nearly all major cases and
controversies.
In the criminal area, over 90% of all cases are resolved prior to a jury trial –
usually through a process known as plea-bargaining. Generally speaking, the pleabargaining process involves presentation of evidence by the prosecution that
convincingly demonstrates a defendant’s guilt – making a jury trial an unnecessary risk
for defendants. In many cases, prosecutors will also offer reductions in criminal charges
or sentencing as an inducement for a defendant’s guilty plea.
While there are criticisms of the plea bargaining system and concerns that
prosecutors in the US are given too much discretion, the system generally works well to
keep the wheels of justice moving and prevent the criminal jury trial system from being
overwhelmed by hundreds of thousands of cases that are likely to have a predictable
outcome when heard by a jury.
The jury trial system in the US, especially for criminal matters, has been
continuously reformed and improved upon throughout American history. It is not perfect
– no human institution ever can be – but it is fairer and more efficient now than it has
been in the past. For example, the right to serve on a jury has been extended over the
course of American history to include women, African-Americans and other racial and
ethnic minorities, young adults (between the ages of 18 and 21), and others who were
previously excluded from serving.
These developments have led to greater fairness in jury verdicts, giving criminal
defendants a much better chance of facing a jury of their peers rather than a jury of
elites. In recent years, many states in the US have also disposed of occupational
exemptions that automatically excused a wide range of professions and occupations
from serving on juries. This reform has also had a positive effect, as lawyers, doctors,
and other professionals are now eligible for jury service and can contribute to the
system of justice.
I will now address some of the core features of the jury trial system in the US
that may be of interest as you help to implement a jury trial system in your country:
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•
The Jury Pool
In order to ensure that a defendant receives a fair trial by jury, the American
system has been expanded to include as many citizens as possible in the pool of
potential jurors. In practice, this has been achieved by automatically adding to the
jury pool all people who have a driver’s license or state identification card, who
receive public benefits, who own property and pay taxes on it, and so on.
In most jurisdictions in the US, the jury pool is updated regularly to add new
names and make corrections to old addresses. When the time comes for a new list
of jurors to be summoned, or called to court, the jury administrator will randomly
generate a list of names to be called.
A broad jury pool is important for several reasons – it helps to ensure that
defendants receive a fair trial, and of equal importance, it creates public support for
the jury trial system when all adult citizens are eligible to serve on juries.
•
Response to Jury Summonses
People can be called to serve on a jury, but if they do not show up to court, the
system does not function properly. In some places in the US, only a small
percentage of people called actually appear for jury service – resulting in delays and
lost time for everyone involved.
Those courts are working to encourage citizens to answer the summons to jury
service by improving facilities and the general experience for jurors. But studies
have found, interestingly, that one of the leading reasons why citizens do not
respond to jury summonses is that they do not feel that they are qualified to serve on
a jury – that they to do not know enough about the law to pass judgment on their
fellow citizens.
As the jury system in Kazakhstan develops, you may also experience this
problem. If that is the case, it is important to educate citizens about the nature of
serving on a jury – that no special legal expertise is required, only an open mind, a
willingness to hear evidence from both sides, and the ability to make a fair decision
without being swayed by factors outside of the law and the specific facts of the case.
•
Jury Selection
One of the most important steps in the jury trial system – especially from the
viewpoint of lawyers – is selection of the members of a jury. In criminal trials in the
US, the jury selection process is a complex one with its own set of laws, court rules
and court decisions governing each step.
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In most jurisdictions, the judge oversees jury selection, but it is the lawyers who
play the most important role in determining who is ultimately chosen to sit on a jury.
Both the prosecution and the defense are allowed a fixed number of “challenges,”
which they can exercise to remove individuals from the pool of potential jurors.
There are two types of challenges:
“A Challenge for Cause,” which must include a reason why the prosecution or
defense believes that the person could not be a fair and impartial juror – such as a
predisposition against certain types of people or offenses, specific attitudes about
issues central to the case, or a personal or business relationship with someone
associated with the case.
“A Peremptory Challenge,” for which no reason must be given (the exception is
that peremptory challenges cannot be used in a pattern to exclude entire groups of
people from juries).
•
Presentation of Evidence to a Jury
Jurors process and act on evidence in a very different way than do judges. Most
obviously, jurors are not experts in the law. They are not called upon to rule on
motions while also considering evidence.
During long trials, it is also common for jurors to lose focus and attention on
detailed evidence. For those reasons, and many others, lawyers find that they must
adjust their techniques for presenting evidence to juries – to make it easier to
understand for lay persons, and to hold the attention of a large group (of 6 to 12
jurors).
Much of the focus of litigators in the US continues to be on how to best present
cases to juries, and much research is done on how jurors process and act on
information. Those of you who try cases in front of juries in the future will come up
with your own styles and strategies, and there are many examples and experiences
to draw on from around the world.
•
Prohibition Against Double Jeopardy
An important feature of the American jury system is the prohibition against
double jeopardy, which means that a person cannot be tried twice for the same
crime. If a jury reaches a verdict of not guilty, that verdict is final. Only in the cases
of a mistrial, where a judge declares that a fundamental flaw in the trial has
occurred, or a hung jury, where the members of a jury cannot come to a unanimous
verdict, can a person be tried again for the same crime.
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There are many other features of jury trial systems, and I look forward to
discussing them with you today.
Before I conclude, I want to say a few words about the importance of an
independent legal profession in advancing the rule of law.
Over the past seven months, I have been privileged to meet with dedicated
lawyers and judges from many nations around the world and have been deeply
impressed and inspired by the common thread that unites us all as lawyers: the
commitment to building and maintaining societies built on the rule of law – not the rule
of man.
The rule of law cannot exist without a strong and independent legal profession.
Lawyers serve as guardians of the rule of law, and we must stand together to
defend the legal profession from any threats to its integrity and independence.
In order to create and sustain a healthy, respected, and independent legal
profession, lawyers must continue to take the lead in promoting professionalism, the
highest quality education and training, and we must demonstrate that we can effectively
police ourselves – if we don’t, someone else will.
As I have said to our colleagues from many nations over the past year:
The legal profession today throughout the world has an important, and among all
professions perhaps the most important, role in advancing and protecting the rule of law
and defending freedom.
I believe that the bar associations of the world must communicate and
collaborate with each other in this effort.
We must never forget that we are one profession globally, that there are those
throughout the world who are attacking the independence of our profession in an effort
to diminish or marginalize our role in protecting the rule of law, and that you and I must
help each other in our efforts to protect the independence of the legal profession
throughout the world.
Nearly 400 years ago the English poet John Donne wrote these words:
“No man is an island, entire of itself; every man is a piece of the continent, a part
of the main . . . . Any man’s death diminishes me, because I am involved in mankind;
and therefore never ask for whom the bell tolls; it tolls for thee.”
I am an American lawyer but I am your colleague, and you are my colleagues.
The legal professions in the nations of the world are not islands; they are all part of the
main. We are of one profession.
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Any attack on the independence of the legal profession in your country is an
attack on the independence of the legal profession in my country.
Any attack on freedoms in my country is an attack on freedoms in your country.
And any harm to the people of your country because of the failure of the rule of
law is harm to the people of my country, and to humankind.
If we stand united as a profession throughout the world, we will withstand those
attacks. Divided we may fall. The bell will toll for the legal profession if we do not
succeed.
We must do all in our power to protect the independence of our profession and
the rule of law.
And we must never give in -- never.
Thank you for your kind attention.
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