i
fi
\
Towards A Politieal
Philosophy of the
Criminal Jury
Daniel J. H. Greenwood
S.A.W.
April
-
Professor Fiss
1984
4t.
' '."ri
,r
INTRODUCTION
Trp fundamental quetions a politieat
philosopher asks about
any institution are, is it good
or bad, does it read to more or
less
Justiee, should we have
it or not. But when these questions are
asked
of an existing institution, a prior
problem m,st be resorved
before
philosophic analysis ean begin.
Ife must know, at least in broad
outline, what the institution purports
to be and what it is in fact.
Burke and Marx arike have ta,ght
,s that institutions
may serve
hidden purposes, and that
both
j,stification
and attaek mr.st
penetrate beyond the ideologieal
surfaee.
criminar juries find facts. Fact-finding,
however, is only one of
at least four legitimate soeial roles
of the jury.l Juries also find or
sometimes make law, often
by giving eontent to vague
statutory or
eommon law standar*. They
serve as a limitation on
the power of
the judiciary and the poriticar
branehes, one of
many such cheeks and
balanees in our system. And
they are a reification of social
contract
theory, a rituar enactment
of the riberar notion that eoercion
is
justified only when authorized
by its vietims.
one could imagine a
iury designed to perform any of these
roles, and it wourd probably
rook quite different from jury
a
designed
for any one of the others.
The jury as we know
it, I will
argue,
embodies aspects responding
to eaeh of the four rores, and,
in
l.
Ifhile today met
eases are resolved
without juries,
,iffffffi}Hffixr*mr'rox''m*
.;-
2
addition,
st,l
sports remnants of its
use as a toor of majoritarian
qpression in the American
system of apartheid.
In this essay, I wilr
attempt to sort out different
institutionar features of
the jury and to
rerate them to the various
roles. charaeteristies desirable
or even
cruciar from the point
of view of one funetion may
be repreheruible
and dangerous from
another; a better understanding
of the different
functions and their interaetion
may enable us to better
mediate the
tensions inherent in
a contradictory, mqltifaeeted
irstitution.
I.
The Jury as Factfinder.
Jury factfinding has been
called the
',palladium of free
governmentr, ?he Federalist
No. gB, and ,,adapted to
the
investigation of truth
beyond any other
[systemJ the world ean
produee," Eldridge
Gerry (r 7gg) quoted in Note,
The changing Bore
of
the Jury in the Nineteenth
Century, T4ycleLJ. lZ0,
t\z (1964).
Faetfinding is usually eonsidered
to be the jury,s primary,
if not sole,
legitimate role, and, indeed,
rnost juries may well
do little more than
find faets' In this section,
I will exprore four aspects
of the jury_
large size' the unanimous
deeision rule, the exclusionary
rure, and
amateurism-whieh seem
most clearly related to
the juryrs faet_
finding role. rfh,e these
four factons may make
the jury a better
faetfinder than the common
raw judge, I eonclude,
other equarly
fundamentar institutional
eharaeteristics of the jury
point in
different direetions.
A.
Large size and unanimity.
The large size of the jury,
combined with the unanimous
:
:
3
deeision rule, seem Ukely
to improve its fact finding (rehtive
to
either a sihgre faetfinder
or a more lenient decision
rule) under
eertain reasonable epistomologicar
assumptions, and empirical
researeh seerns to bear
out this theoretical
result.
If
we assume that people
are more rikery to pereeive
a faet
co*ee'y than they are to make
any speeifie error, it follows
that
were a suffieien*y rarge
number of observers asked
to vote on the
faets, the eorreet resurt
wourd reeeive at least
a prurarity. It is
elementary sampling theory
that, ceterus paribus, a rarge
sample
more aeeuratety refreets
the whole than a small one;
hence, a
multipre decisionmaker sho,ld
be more accurate than
a single one.
But we ean take a more
sophisticated approach.
Faets, we
generalry assurne, are
aeeessibre to all and
the same for au. Truth
does
not vary with the truth seeker.
Thus, different individuals
shourd be abre to agree
on facts even if their
varues
differ.
111]: .:ivity
see,
in the sociat seienees, in
M. lrreber, MethodoloEy
(snils, ed. t g4g).
unanimity is possible,
laek of unanimity suggests
emor.
and
Any individual's pereeption
of the facts may be skewed
by his
interests, rogicar errors,
observationar imprecisions
and memory
failrrres- A singre faet finder
is untrustworthy. However,
interests.
and errorc are idiosyneratie:
different peopre make different
mistakes' If we require
them to diseuss and agree,
they are mope
likely to agree on the truth
than on any given e*or.
This is not only
beeause' as we saw
above, any given error
is ress likely to be shared
than the truth. In addition,
truth shorrrd have a persuasive
power that
is greater than errorrs:
that is, people shourd be
more willing to give
4
r+ mtl."ken beliefs in favor of correct
ones than the other way
8(rEu.
Ttris argument, then, stresses
that ordinarily agreement is
easier to reaeh about faets than
about error, and that this is
more
true in a rarger group than gglnrsi
a
one. Dialogue
often lea* to the
discovery of error; while juries
must diseuss and agree,
a singre judge
need not justify his decision
exeept in concrtuory fincringr
of fact.
Empirieal findings indicate
that juries as a whore are far
more
aeeurate than any individuar juror,
B. Hastie, s. penrod & N.
Pennington, Inside the Jury (lgg3)
at g2 (iury as a whore remembereq
on average' g0% of the
rerevant evidenee, but in
over 75% of the
eases, the most aeeurate juror
remembered ress than half),
thus
supporting the notion that
individual errors are both
important and
idiosyneratic' Furthermore, juries
with unanimity rules deliberate
longer than those with ress
stringent decision rules, are
more
satisfied with the results, and
are more ukely to reach the
resrrrt
deemed eo*ect by outside
observers. Ig. at ch. 4. The
unanimity
rure has signifieant effeets (in
7 0f 43 eases, an eight person
faetion
di&l't win, id. at g6) and they
seem to be in the direetion
predicted by
the theory. Larger juries
with more stringent majorities
afe more
eonsistent and more aecurate.
obviously, this is a drastiea,y
oversimplified pieture, true,
if at
all, only in a statisticar sense. psyehologists
have identified many
instanees in which the proeess
may go wrong:
for instanee, some
individuals, often those of
higher soeio-economie status,
seem to
have disproportionate perst*sive
power that is not dependent
on the
"
"
i'-i!.
+t*"
qparlty of their arguments.
Their views thus may be overvarued,
with
the speaker, not the aecuraey, providing
the persuasive foree.2 tn
addition, groups seem to have powerf,l
a
internal pressure towards
unanimity and conformity. I. Janis
has shown how this dynamic
ean
lead to drastie errors in insular
and eohesive gloups whielr-_unrike
the
jury-work together over long periods
of time. I. Janis, yietims
of
Grouothink (t9?2).
Fina'y, and most importan*y in the
Ameriean experience,
shared Drejudiee may be more widespread
and more powerf,ly
persrrasive than shared pereeptions
of the truth. This last problem
may be aceentuated to the'point of
transforming the
different institution altogether,
if
j,ry into a
the jurors are chosen speeifieauy
for certain shared prejudiees, as in the
erassic Engrish
speeial (Btueribbon) jury, see G. Wiltiams,
The proof of Guilt ZS9 (1963) (only
those jurors likery to be
"sympathetie to property,'), the Alabama
struck jury upheld in Swain v.
Atabama, 3g0 U.S. 202 (1965) (de
facto
exelusion of blacks) or witherspoon
death quarified juries,
ltritherspoon v. fllinois, Bgl
U.S. Sl0 (l96g) (persons absolutely
oppposed to death penalty may
be excluded from jury authorized
to
impose it), Hovey v. superior
court of Arameda county, 616 p.2d
-{;;i
*4r'
ffi
..-.,rt,
3;j1:lf:s,plt1ljs,,r€s,
espeeiauv seem to evoke this
;f"il:?ff Tl?:::11s:{:l"r;.":-5;;;ili6#:6'ffiff#i'"
la,u[nontv
ffi
+ffi 3E$li?"t:r,,r"l'::*j:h.:'"q$'l'jHlift "Hffi,,r.
ili'iEf,:#fl ,h:t*::i:fif.ttil#:'1ilili";ft '"[TX]"i'l;,
H,Tf [ltT*:*lll*:;"1{;:ii:,i#'fr ;i""il",,,:,:T:i}H#
-fff5.I#:l_0"*l_o*t1,go'"iJ*,i;,"'i;;ffi:.,nlili.f ?li,liti
5i3Hi"lti,ilf
""Tp,"rr*i"."o-r,--,iig*iini[,"iJ,lJ'H..;lili*,.
:ilt;"$U:,"i:l:Sl"i:"?,"i.#f;.;::..#lJii#f#liffi
#
p;;;,lilT
follow
ilfi tead or unopposed
.i-
+i&r:
""x'3
t?S
#4i
6
I
ffll,
1312
(Calif.
1980) (death
qualified jury more likely to convict)r
Grigsby v..Mabry, 569 F. Supp. l2?3 (8. D. Ark. 1983) (same).
Prejudiee, of eourse, may
afflict a single decisionmaker
as easily as a
group one; this argument goes to how the decisionmaker, single or
multiple, is chosen, rather than to the desirability of one over many.
B.
The Exclnsionary Rule
A less jury specific argument is that juries are a convenient
way of glving content to the rules of evidenee. To the extent that
these rules are taken seriously either as promoting correct faetual
findings or for other reasons, it is probably essential that the persct
administering admissibility not be the person determining guilt:
Notwithstanding the panegyrics often reeited to the judgers ability to
put inadmissible evidence out of his mind, no human is likely to avoid
a natural proeess of evaluating inadmissible evidence in aceordance
with preconceptions created by-ex hypothesis-convincing but
unreliable exeluded evidenee. See, e.g.,
H.
Kalven & H. Zeisel,
&
American Jury (1966) at Ch. 9 Qudges more likely to conviet than
juries when only the former have seen arrest reeord). For theoretical
analyses, see T. Kuhn, Strueture of Scientifie Revolution (1970); N.
Harson, Patterns of Discovery (1958).
This, of eourse, only argues for a separation of functiors,
whieh, presumably, could be satisfied by two judges as well as by
judge and jury.
C. ematqgrism.
Juries areftompooed of amateurss jurors hear one case and then
go home. This amateurism may lead juries to be more likely to
7
eorcider eaeh case individually than wottld a judge who hears the
same story over and over again. As Justiee Fortas has said,
defending the jury system, tjudges do sometimes tend ... to take a
somewhat jaundieed view of defendants.rt Quoted in Scheflin, Jury
Ngllification: The Bight to Say No,
45 S. CeL
L. BeY. 168' 213 (1972)
(no eitation given).
This is an extersion of one of the better defenses of plea
bargaining: in a system where an overwhelming proportion of
defendants are guilty, partieipants are likely to beeome so innured to
gUilt as to fail to reeognize oecasional innoeence. Plea bargaining
filters out many of the clearly guilty, but enough remain that judges
are likely to forget that not all defendants are guttty. Jurors, by
their very amateurism, are more likely to look at eaeh case with a
fresh eye. (Of course this argument can be stood on its head: Jurorc
are simply naive and dontt see through defense
Williams,
Tri4 q!.]Qu!!! (1963)
tricks.
See G.
(where one jury deeided many similar
eases, acquittal rate dropped dramatieally).)
A related argument is that jurors, as amateurs, will not feel
constrained by professional relatiorships that may affeet the
impartiality of judges. Unlike judges, they do not have to work with
the same poUee witnesses and DAs again and again. Thts they may
have an easier time disbelieving police, who, although notorious in
journalistie cireles for routine perjury, are eommonly taken by judges
to be paragons of upright honesty. But eompare Note, Did Your Eyes
Decieve You? Expert Psyehologie Testimony on the Unreliability of
Eyewitness ldentification, 29 Sttn" L. Bey. 969 (1977) (iuies
8
ov€r€stimate the aeeuraey of poliee eyewitnesses) to Manson v.
Brathwaiter
4S2 U.S. 98 (19??)
(making similar error).
These arguments are more directly connected to the jury than
are the ones considered previously. The arguments considered in A &
B above, point to deficiencies in our usud alternative factfinding
system, the single eommon law judge. Many European slrstems
reeognize the validity of these arguments against a single factfinder,
but nonetheless reject the jury system. Rather, they have multiple
judge panels for fact finding, at least in serious eases, and to the
extent that they recognize exclusionary rules, may give that funetion
to yet a different iudge.
In eontrast, the argument from amateurism strikes to the heart
of the jury system: no system of judieial factfinding eould match
this. Unfortunately, it is also the weakest of the arguments. It is an
empirieal question whether repeated exposure to similar eases makes
judges I'jaundicedrr or streetwise, and whether jurors bring a fresh
view or are merely naive. There is no a priori reason to believe that
one of these factors
will eorsistently overwhelm the other in a truth
seeking proeess, and, fr.rthermore, until we develop an independent
method of determining the truth, there is no way to determine the
question empirieally. Kalven & Zeisels famous study found many
eases where judges believed
that the jury had taken a different view
of the eredibility of witnesses. But I know of no way to determine
whether judge or jury was more often eorrect.
I
Separation of substantive and proeedural (exelrrsionary rule)
dccisionmdcers, multiple faet finders with a unanimity rule, and
perheps even amateurism, then, are reasonable parts of a
fair
faetfinding apparattrs. But the jury has other equally basic
institutional features that a modern man must find shocking in an
effeetive faetfinder.
First, juries are passive. Althottgh formally they are permitted
to submit questions and even to call witnesses on their own, in
praetice they simpty watch a show put on before them. Combined
with the completely indefensible rule that they may not take noteot
this limits the likelihood that jurors will understanFor even
remember-the issues developed before them. Judges, even in the
common law system with its ethos of judieial passivity, take a more
aetive role in the proeeedings and thus may develop a more
sophisticated understanding. One actively involved head may well be
better than twelve Passive
ones.
Second, the juryrs deliberations are seeret, seemingly preeluding
the free intelleetual discourse and public debate reeognized
as
essential to the pursuit of truth at least since John Stuart Mills On
Liberty (1859) and enshrined in our First Amendment. It pronounces
deeision in a eonclusory manner, in the style of arbitrary officials or
ficts
announcing articles of faith, and without the justifieation,
argumentation and explanation eharacteristic of all other fact
seeking enterprises. Its deeisions are, ordinarily, unreviewed and
irreversible, rather than published and eritieised.
On the other hand,
it
shoutd be noted that our judges, at least,
f,
t0
do no
better. Their factfindingE are also announced in a eonelusory-
if somewhat more detailed-manner,
and generally are not subjeet to
review. Furthermore, even in the scientific community, errors of
fact-as
opposed to interpretation-are ordinarily discoveredr
if
at
all, by duplieation of experiments the results of whieh no longer
seem
plausible. Duplieation, not debate, is the key-and duplieation is
impossible in a criminal
trial.
These failings may not be the
iur
s.
Finally, jurors receive no technieal training. They need not
have Ph.D.s in soeiology, psychology, criminolgy or economies--in
short, they are laymen, not scientifie experts. This seems to
represent a rejeetion of the norms of the seientifie community, but in
this respeet as well, we should note, they do not differ much from
eommon law judges. Judges, too, are laymen in this sense: nothing in
their training particutarly qualifies them to be faet finders. The only
possible advantage they may have over jurors is on-the-job
experience, and as we have seen, that euts both ways.
Juries seem a defensible method of fact finding,
if less than
clearly deserving of the more spectacular encomiums. But the jury is
not so obviously superior to such alternatives as mr:ltiple judge
panels, or scientifically trained speeial masters, required to justify
their conelusions (and eapabte of doing so)3 as to merit without more
its central role in our constitutional jurisprudence. A brief glance at
3. That they know how to artieulate rationalizations of their
deeision is, of eourse, no assurance that the decision itself will be any
better. See G. Williams, The Proof of Guilt 314 (1955) (quoting Lord
decision, because it
Mansfiel6advice to a
will probably be right, but do not give your reasons, beeause they will
probably be wrongr') (tne purported reasoning is ex poste facto
ne@ur
rationalisation).
rtl
tl
the
eas will help suggest what that more might be, although, as we
shall see, tne ir,stitutional opposition of the judiciary to the jury
makes the judges a less than dispassionate guardian.
II.
trl,aw and Fact Complieatelyrr
Our criminal juries are not pure fact finders. A purely faet-
finding jury would deliver a speeial verdict-as the juries of Old
England occasionally did when they disapproved of the law, e.g. The
Dean of St. Asaphts Caser
2l
How. St. Tr. 84Tr9461 950,
it
wottld
announee a factupl finding alone, and refuse to say whether the law
had been
violated. Our juries, in eontrast, deliver general verdiets of
gurlty or not guilty; they I'resolve both law and faet complicatelyrn
Bushells Case, 6 How. St. Tr. 999,
l0l5 (I670). The general verdict
ensures that the jury, not the judge, applies the law to the faets.
In this country, until the 1830rs, juries were generally
tolfas
they still are in Indiana and Maryland, U.S. v. Dougherty, 473 F.2d
tIl3,
I133 (D.C. Cir. 1972Fthat they were "the judges both of the
Iaw and the fact in a eriminal ease, and ... not bound by the opinion
of the eourtrrr United States v. Wilson, Fed. Cas. No. 16, 730
(C.C.E.D. Pa. I830), quoted with additional eitations in Howe, Juries
as Judges
of Criminal Law,
52
Ecw. L. Bev. 582' 589 n.22 (1939).
Lawyers routinely argued the law to the jury, disputing the judgers
interpretation, see, e.9., J. Alexanderr Trial of John Peter Zenger
99
(1963). Indeedrh tn" Massachusetts Constitutional Convention of
r,
1?88, the Massachusetts Chief Justiee argued that the lack of a bi}l
of rights in the Fedpral Corstitution
$ras no eause
for eoncern, since
l2
jurieg would never conviet under uneonstitutional laws (quoted in
Sparf & Harsen
v.
United States, I56 U.S. 51, 144 (1895) (dissent)),
while in 1?90 Supreme Court Justiee Wilson went even further,
stating that whenever
rra
differenee of sentiment takes place between
the judges and the jury, with regard to a point of law '.. the jury must
do their duty and their whole duty; they must deeide the law as well
as the
faet."
156 U.S.
at
at
159, see also id.
144 (John Adams to
similar effect).
By the end of the nineteenth century, sentiments had shifted.
Sparf & Harsen v. United States, 156 U.S.
jury was properly instrueted that
it
5l
(1895) (holding thet a
could not return a verdict of
manslaughter, where the evidence supported only murder). While in
the l790ts a jury might have relieved no irstruetiors at all or
contradietory instructions delivered seriatum by judges (and often
counsel as well), M. Horwitz, The Transformation of Ameriean Law
l?80-1860 (I977) at 28, today
it
is well settled that law is argued only
to the judge, and the jury will be told that its function is merely to
find the facts and apply to them the law,
as
stated by the judge.
Compare United States v. Dellingerr 4T2 F.zd 340, 408 (7th Cir. 19?2)
(upholding refrsal of judge in Chicago 8 trial to tell iurors they must
obey their eorseiences) with Sparf (dissent) 156 U.S.
John Adams Wks. 253-5 (17?1) (uis
it
at I43, quoting
2
not an absurdity to suppose that
the law would oblige them to find a verdiet aceording to the direction
of the eourt against their own opinion, judgment and eonseiencett).
But see United States v. Dougherty, 4?3 F.zd I I l3 (D.C. Cir. l9?2)
(fact that juries are instructed to obey judge, doesntt mean they
I3
qhquld do so).
However, late nineteenth eentury attempts to restrict the jury
to pure faet finding by the special verdict have been deeisively
rejeeted. E.g. united states v. Dougherty 4?3 F.zd
cir.
lllg, ll92 (D.c.
1972) (holding that while nullification instruction was properly
refused, iuryts role is to apply the law to
facts). In a eriminal
ease,
the judge may not ask for a speeial verdict, even in addition to the
general
Even
verdict. united states v. spock,
416 F.2d 165
(lst cir. Ig6g).
if
there are no factual issues, the defendant has the right to
have a jury apply the law to the known faets: there is no eriminal
equivalent to the eivil summary judgment for the
plaintiff. cf.
Everett v. U.S., 396 F.zd g?9 (D.C. Cir. lg64) (Wright, J, dissenting)
(defendant should be allowed to withdraw guilty plea
even though no
facts in question' so that jury eould pass on curpability).
Furthermore, despite the Sparf instruction, the juryrs general verdiet
will not be second guessed, at least when it is an acquittal. Horning
v. Distriet of Columbia, 254 U.S. l 85, l
'rhas the power
Bg (1920)
(Holmes,
,f
to bring in a verdict in the teeth of both law
.) 0ury
and
factstt).
The general verdiet, then, eruures that juries have some part in
determining, or at least applying, the
law. Differing interpretations
of this part are possible, and the eases do not improve the clarity of
the situation by suggesting that the jury,s *rightil may not extend as
far as itsttphysical powerr'r Sparfr I56 U.S. at 62 n.l and dissent at
l?3, or that the jury may have both power and rights about whieh
nonetheless should pot be told, united states
lllS (D.c. cir. l9?2). In the next seetiorxr,
v.
it
Doughteryr 4?3 F.Zd
we shall explore three
l4
dfferent politieal roles of the jury,
"""n
o, whieh is hidden behind
the generd verdiet.
Itr. Jury as Normfinder
Norm finding is one of the most aneient of jury functions-the
earliest medieval juries may have been summoned to determine loeal
traditiors even before they began to try individual cases. Green, The
English Law of Homicide 1200-1600, ?4 UictL L. BGv. 414 (19?6).
Today, juries are
still required,
under the guidance of legislature and
eourt, to determine community standards in many eases.
The elearest example of this phenomenon is not eriminal: the
law of negligence. In negligenee eases, the eommon law does not
fully determine the deeision on a given set of faets. Even if the
defendant's behavior is stipulated, the faet finder must determine
whether that behavior met the standard of due eare. Clearly this is a
normative deeision, even though
it
is given to the fact finder.
In eriminal eases, the hiding of normative questions under
factual labels may be less obvious but it is equally prevalent. AII
criminal juries must determine blameworthiness or culpability. This
is why a criminal
juy
ean never be irstrueted to
facts are proven as a matter of
1aw0
conviet
even
if
the
), the faetfinder has the
exclusive right to determine whether that behavior met the standard
of eriminal misfeasanee. Once again, it is clear that the faet finder
is being entrusted with a question of law.
In many speeific areas, the jury has an even bigger role in
determining the meaning of the law. In 1973, for irstance, the
D
15
Sqpremr Court lrled that whether given material is obscene is
nsentially
a question of factr" Miller v. California, 413 U.S.
I5,
30
(19?3), and gave up on tryrng to articulate the meaning of
I'contemporary community standards of obseenity.rt Apparently,
juries may now determine what standard to apply and may aPPty
different standards in different contexts. Hamling v. United States,
4I8 U.s. 8? (I9?4) (upholding jury finding that while book was not
obscene, direet mail advertisement
for it was obscene).
In MeGautha v. California, 402 U.S. 183, I99, 20? (1971), th€
ttgrantirg
Supreme Court, no doubt improperly, upheld the praetiee of
juries the discretion" to determine when to impose the death Penalty
rather than requiring the legislature to'rrefine further the definition
of eapital homieides.'r Apparently Furman v. Georgia, 408 U.S.
(19?2) reverses this position, Adams v. Texas, 448
238
U.S. 38, 4l n.l
(1980). Nevertheless, for at least a century and a half, MeGauthat
402 U.S.
at 299, legislatures had commonly delegated to juries the
eritically important normative task of distingUishing between eapital
and non-capital murder.
Even under the post-Furman regime, where states are required
to specify the standards the iury is to use in imposing eapital
punishments, juries may remain the crueial normfinders. The Texas
eapital offense statute upheld in Jurek v. Texasr 428 U.S. 262 (1976),
for instance, requires the jury to decide, inter alia,rrwhether the
conduct of the deiendant in killing the deeeased was unreasonable in
resporse to the provocation,
if
any, by the deeeased.tr Tex. Code
Crim. Proc. Ann. Art. 3?.0?1(bX3) (emphasis supplied).
I6
question, is as essentially
Beasonabteness, though labelled a factual
rrnmative.in the murder context as it is in the negligenee area'
States v'
Nor are these isolated instances' See' e'g" United
Eiehbergr439F.2d620'625(D'C'Cir'19?I)(Bazelon'C'J'
to iury)'
concurring) (definition of irsanity left largely
and
overcriminalization, vague or incomprehersible statutes,
conelusorycategorizations(suehasthedestinctionbetween
jtstifiable and non-justified self-defense) ensure that the realm of
mechanicaljrrrisprudencewillbelimited.Juriesmwtapplylawsto
realistst
facts; neeessarily theyr like the judges studied by the legat
willoftenhavetodetermineorevencreatethemeaningofthoee
Iaws.
Thejury'srelatiorshiptothelawasannouncedbythejudSe
law judge to
may be seen asl analogous to that of the eommon
Legislation is written in broad terms; judges
statutory legislation.
must both
fill in the gaps and interpret
a way as to avoid clear
the statutory language in such
iniustice. since judieial deeisions are made
withspecifiefactsituationsinmind,thejudgeismoreabletotake
jtrstiee in speeifie eases'
into aceount the partietrlar requirements of
Whilejudgemadelawinthusnecessarilymorespecifieand
perticularized than the broad principles of legislated statutes,
still
bound by preeedents and thus somewhat abstraet.
Jurie
it
is
may
aettowardsjudgemadelawasjudgesdotowardslegislativelaw:
theyfillinthegapsandinterpretthelawinsuchawayastoavoid
jury decisions are not
elear injwtiees fn a partieular ease. sinee
and sensitive
preeedent setting, they can be even more partieularized
l7
to the equities of the ease than are judieial decisions in the eommon
law tredition. See United States v. Dougherty, 4?3 F.2d at 1142
(Bazelon,
i.,
dissenting) (jury is important beeause, 'rthe drafters of
legal rules cannot antieipate and take account of every case where a
defendantrs eonduet in tunlawftrlf but not blameworthy, any more than
they can draw a bold line to mark the boundary between an aeeident
and negligenee.rr). Cf. Hixt v. Goats,
(ttThe
I
Rolle 25? (1616) (Coke, J.)
jury are Chancellors").
Critics 6syg qellgd this kind of jury lawmaking eapricious and
arbitrary, offensive to the judieial goal of proteeting expeetations,
and contrary to the rule of
law. With Jnstiee
Holmes, they have
advoeated that legislatures and especially judge define the law mone
closely so as to reduee jury diseretion. Baltimore & Ohio R. Co. v.
Goodman, 2?5 U.S. 66 (1927) (trwhen the standard [of eonductJ is elear
it should be laid
down once for all by the Courtstt). But see Pokora v.
lYabash Rwy. Co., 292 U.S. 98 (1934) (Cardozo, J.) (9. & O. B. Co.
rule unworkable). Some of these critieisms are valid: in particular,
due to the secrecy of jury deliberations and the non-preeedent setting
character of their holdings, jury decisiorui are not easily suseeptible
to clear eriticism and organized debate. Thus, they may aet as a
strong eonservative foree, maintaining old patterns that would have
been abolished had they been subject to the light of day.
However, the aeeusation that jury norm finding is arbitrary,
capricious and without prineipled basis seems ineorrect, at least
under certain circumstances. lYhen the law is truly a refleetion of
community customs and beliefs (whieh neeessarily presupposes the
often problematie existenee of a eommunity with such shared
customs and beliefs), the jury is likely to be the most effective of our
irstitutiors of maintaining a known and predictable law. Jurors are a
I8
sendom slice of eivil society
itself; true eustomary law-if it
existr
strould be refleeted in their eorseiousness'
the law
speeifically, juries will be predietable and reliable when
discover it
they mtrst use exists as a social fact, where they ean
often
rather than having to mediate between competing versions.
the
moral intuitions are widely shared, even when we disagree about
we may have
theoretieal jnstifieations that seemingly underlie them.
similar reactions to a given, novel, situation, without precisely
from partieular
knowing why. The common law slrstem of reasoning
situatiors to abstraet principles (rather than the reverse, as is
fact
typicalofmorebureaueraticsystems)restsonthebeliefthat
particular instanees,
eommon sense and moral intuitions, exereised in
systems and
are more likely to lead to jtrstiee than are philosophic
the
abstraet theorists. Even the theorists themselves seem to aceept
primacyofmoralintuitiorswhenrinthernannerofJ'Rawls'A
Theorv of Justice (19?1), or Thomson, A Defense of Abortion' I
phifcophy and Publie
AffeiE 4?, (197I),
they treat theory 8s no
more than a tool for rationalizing moral judgments: the unreflective
judgmentbeeomesasortof'moralfact'tobeexplainedasa
grammarian explairs native speeeh. In both modern philosophy and
eommon law adjudieation
it
is the holding, not the reasoning, which is
bindirg.
Clearly,itisnotalwaysthecasethatmoraljudgmentsare
sharedrorthatwehaveaeommonsoeiallanguageofmoral
intuitions. But on those oeeasions where our society is sufficiently
the
culturally unified that moral holdings are more reliable than
t9
thgrics
a theoretieal pietrrre in
wtrieh lustify them, we ean construet
wtdctrjrrieswottldbemoreeffeetivethanjudgesatreaehingeorreet
corsidering circumstances where
deeisions. By assumption, we are
peopleingeneralwouldegleeonthecorreetresultinagivencaltepublieally known (even if it remains
where the law or social norm is
enough to cover most
inartieulate), generally aecepted, and detailed
just Jrstiee Stewart,'tknow it
situations. In short, when we, and not
v. United States, 156 U.s. 5l'
when we see it.'' cf. Sparf & Harrsen
("As every eitizen "' is conelusively
I?3 (I895) (Gray, J., dissenting)
presumedtoknowthelaw,andeannotsetrrphisignoraneeofitto
his peers must
from criminal responsibility "'r a iury of
excuse him
be presumed to have equal knowledge
""u)'
in this sense, it is a type of
when the law is generally accepted
jury will be at least as effective at determining it
social fact, and 8
as any other
fact.
that any
The jury's large size should eff'ure
reeeive undue weightt while
individual juror's idiosyncracies do not
will foree the juy to agree on
the unanimity requirement generally
reasonable to eaeh juror'
the only result which will seem more or less
namelY the correet one'
singleness' mey
A single iudge, on the other hand' by her very
bemorelikelytobeswayedbypersonalidiosyneraeies'and'in
(ex hypothesis) eonfused
addition, is far more likety to be misled by
eonceptualized eommon
theories and often overly rigid or wrongly
Iawprecedents.Ajudgemayfollowwhatshethinksthelogical
implieatiorrsofpreviorrsdecisiorsrequirethelawtobe,whilejurors,
the eommon sense
untutored in peculiar legal logie, will opt for
20
tilflt.
Because juries
will generally reaeh the eommon serure result,
their verdiets will be higtrly predietable. The law, even though
wuecorded in precedents, will be safe from the destablizing impulses
of reforming judges. Furthermore,
it will not stray far from
the
norms of the eitizenry: jury justiee inherently reflects soeietal
values. Indeed, the first judieial attaeks on jury prerogative in this
c"ountry seem motivated less by a desire
for more predietable law
than by a desire to change the substance of the law faster (and
sometimes in a different direction) than juries wished. M. Horwitz,
The Tranformation of Ameriqan Lery
(1977) (iudges sought to
lI!Q:l!!q,
141-3' 84-5' 28-9
trarsfer the soeial costs of indwtrialization
to random individual victims by lowering damage awards in tort,
eminent domain, insuranee, and similar eases, while juries resisted,
e.g. by applying comparative negUgence doctrines even when directed
not to do so).
lYhen eommon moral intuitions do reach the case in question,
the jury offers the ultimate in particularized justice. The results
may appear arbitrary and unpredictable to the outside (academie)
observer: but that is an optical illttsion. The very same close look
end immersion in the facts
that eonstitutes particularization is also a
refusal to generalize and call many eases alike despite small
differenees in their faet situations. Without generalized rules,
results will not be readily predietable by observers who know only a
few details. Nonetheless, sinee by hypothesis the law to be applied is
eommon sensieal and aecesible to every citizents intuition, the results
2t
wttlbequiteclearinadvancetothosemostcloselyinvolved(or
would b€,
if
serse, and
they were not so elosely involved in the other
interest)'
thus unable to see the truth for their
Theassumptiorsunderlyingthisdeferseofjurynormfinding
showitslimits.Aboveallelse,theremrrstbeanearlyuniversally
acceptednormforthejrrrytofind.Thatis,eithertheeasebeing
what is not very different,
tried mrrst be determined by eustom, or,
common
the proper rule to spPly must be apparent to 0iterally)
sense.Asocialconsensusastotheeorrectresultintheeasemtst
precedethetria};jrrrieseanonlyreflecteorulensull'theyeannotbuild
it.
where the law (or
The iury as law finder, then, ean only operate
is unitary and known
at least the part whieh the jury is determining)
toall.Intheabseneeofeonsensus,thejurorswillbeforcedto
chooseamongeompetingvisions,andthechoicetheyrrltimately
makewillnecessarilyreflectthearbitraryluekofthedrawin
the jury ehoice may itself
randomly chosen lurors' Occasionally
createaeonsensusthatdidnotpreviouslyexist.ButthetrialofJohn
PeterZengetsurelymustbeasexceptionalastheSupremeCourtls
Brownv.BoardofEducation:onlyrarelywillthelosersinsucha
eontroversyreeognizethelegitimaeyofthevietors'position.
Ordinarily,intheabsenceofeonsensus'ifthejuryeomestoa
and aecidental' To be sure'
deeision, it will be perceived as arbitrary
leading
theorists have hdd glest diffieulty jnstifying the other
See,
of ctrooEing between eompeting norms in our society.
methods
EarY'
e.g. Cover, Forword: Nomos and Narrative' 9?
L' BeY' 4 (1983)
22
oudgegkilllaw)rJ.Ely,Democraerl&Distrrrst(1980)(valueehoiees
bViualiciaryareillegimate),8'lVolfe'InDefenseofAnarehism(19?5)
(representativedemocraeyindefensible),TheFedera}istPapers(1?8?)
J' Rorrsseau' ryjlgig
(majoritarianism oppresses minorities)'
basis for legimate government)'
Contract (corsensr'rs as only
determiners, the judiciary, the
However, our other leading law
.*4I.
,-&
*fi
s
.,..*i
,+.
d.
;&,
".,ttr.
.::
,;&l"dl
' I.,
.
Iegislatrrresandtheexeeutivebenefieiaries,haveatleastone
predietability' The
the jury: finality' and hence
advantage over
''ei:
.i'!r,
,,1!f
'i
i:g
.!
*,
;1.:
j
Lt -s
- I 'r
.
i:
.i'jt{il.
'r-'ffi.
losersinanyconflictbetweencompetirrgvisiorrsofjtrstieemayhave
noreasontorespectlegislative,exeeutiveorjudieialdeterminations
,r'&
ffi
aslegitimate.Butatleasttheycanpredictthelikelygovernmental
respoffietocontinuedstrrrggle.Ajtrrydecision,ontheotherhand,if
itrefleetsnotconsensrrsbutratheratemporaryandlocalvictoryfor
ffi
#
r!
oneside,offerslittleornoevidenceastohowthequestionwillbe
resolvedinthefuture.Forthisreason'juryverdictsarelikelytobe
points for future debate'
slippery to serve as foeal
too
Fina]ly,sincethecompositionofjtrrieswillehange,theycannot
the
group-which might be able to control
be used by one social
consisten0y
judieiary, exeeutive or legislature or exeeutive-to
of
jury as law finder depends on a notion
coerce other groups'4 The
PoPulerlaw,Iawfoundintheheartsandmindsofthepeople.Neither
a
iury' chosel g$t from jury
4. Of eourser a nonrepresentative
inglish
;- tn" iignt"dtith centurv
single unif ied *"rr" ir'i"v-'"!i,
over the rest of soeiety'
crassts riue
surely did, as
"slniltitrat
i5vl see-swain v'
"n
lyPe g{
For a more ,"o"nttl*",i'prJ
wriiie edUa-nia struck i,ry)'
Arabama, 380 U.S.;ffi'(f6;5) t",
li.ifs
l
23
oppresson nor soeial reformers can look to a representative jury as a
tool toward their goals:
it
cannot find laws the purpose of which is to
remake soeiety. Law that is designed to oppress or to edueate, to
improve or to change the people must eome from another source, one
eapable of imposing a steadier
will on the world.
The less the law tracks eonventional morality (whether
deliberately, or because there is no eonvention to track on the issue)
t}re less likely jury law finding is
to be eorreet or predietable. In
these eases, judges, ruling from a more theoretieally informed
intuition, and in any case foreed to be somewhat consistent by stare
decisis even when their theoretieal analysis is weak, are almost
eertainly preferable. Reported deeisiors may be superfluotts where
easies
are determined by social eonsensus, but in these more diffieult
situations, they allow the intellectual debate that perhaps ultimately
might lead to agreement. (Conversely, when judges find themselves
unable to rationalize their decisions, and when neither rationales nor
precedent seem to explain the results, judicial deeisions will be
suspect. If, despite their inarticulateness, the decisions really do rest
on an underlying soeial eonsensusl,
but att of us know
jnry.
And
if
it
when we see
if, that is, not jttst
Jttstiee Stewart
it, the issue should be sent to the
the soeial norm is not agreed upon' so that judicial
inarticulateness reflects the fundamental laek of any prineiple behind
the deeisions, the judiciary ought to defer to the legislature where,
perhaps, the parties ean work out a mutually acceptable compromise,
and
if
not, political power will ereate politieal prineiples.)
lE'-
24
changing' society the iury
ln our multiethnie, polynomic' rapidly
aglrormfinderisextremelylimitedinitseonceivablylegitimate
seoPe.Jrrriescanonlyfindlawsthatalreadyexist;theyarepoorly
in a polynomic society' The
organized to mediate controversies
of
and the inerease in its rate
society
increase in diversity of our
socialehange,whichhavebeenrefleetedina''statutifieation''ofthe
Law 95 (197?)' have
law, G. Gilmore, The Ages of American
eommon
atsoled,properly,toadrastiereductioninunguidedjtrrydiseretion.
Jurynormfindingshouldbelimitedtoundefinableboundariee
In thce
of the law is of primary importance'
and where
flexibility
areasritcanpreventeommentatorsandlateriudgesfromfabefy
analogizingeasesandbuildingrtrleswherenoneshouldbebuilt(e.g.:
in addition' eommunity
who blink are liars). When,
witnesses
gtving
and not subiect to ehange'
standards are partietrtarly elear
be a way of avoiding the pressure
their enforcement to the jury may
ofreformingminoritiesthatcouldexerciseexcessivepowerinthe
(e'g'' arguably' negligenee: the
and judicial branches
legislative
jury,sunresponsivenessmayenableittomaintainthelawinthisarea
inthefaceofpowerfulpressuregroups(irsrrraneecompanies,Iarge
might have an easier time influeneing
corporate tortfeasors) tnat
a criminal
legislatures' I have been unable to find
iudges or
to the
poliee and proseeutors are subject
equivalent, perhaps beeause
samepressuresasludgesandlegislators.See[fromwht.collarcrime
prosecutedl.)
eourse: Rich & powerfr,rl rarely
Jrrrynormfindingthusplaysanimportantbutrestrietedrolein
oursystem.wherethelawisclearlyknownrespeeiallyifpowerfttl
..,',:9'
t',':rk::
25
but numerieally tiny groups would like to change
it, jury
norm finding
may be,an'effective, eonvenient way of preserving a clear and
predietable
law. But the secreey
and inartieulateness of the jury
limit discussion and debate of this reeeived law. Malus usus
abolendus est; even genuinely universally aecepted morality may be
better subject to the light of day. The jury as lawfinder has some
good points and some bad ones, but hardly seems Uke a tllamp of
liberty" or
&n essential component
of 'fthe American scheme of
jgstice.tt The next two roles we shall discttss have stronger claims to
those titles.
W.
The Jury as Cheek and Balanee: Nullifieation
"The purpose of the jury
trial ... is torprevent opression by the
Government."' Williams v. Florida, 399 U.S. ?8, 100 (1970)' quoting
Duncan v. Louisiana, 391 U.S. 145, 155 (1968),
cf.
Federalist Papers
No. 83 (criminal juries a "defense against oppressionrt and a ltbamier
to tyranny'r). The Court sees the possible sourees of oppression as
ttthe eorrupt or overzealous prosecutor and
or eceentrie judger"
,@'
391 U.S.
...
the eompliant, biased,
at 156. In this section' I
examine the jury role most clearly directed at preventing rrarbitrary
impeaehment, arbitrary methods of prosecuting pretended offenses
and arbitrary punishment upon arbitrary convictionsrrr Federalist No.
83, or in Duneanfs more direet words, at "prevent[ingl oppression by
the Government.rr
The Supreme Court, however, has an overly limited view of the
possible sources of oppression in a legal system. Overly zealous
26
trunfounded eriminal charges'rt and "biasedrr
Pt@eutonl do bring
ffies eertainly exist: the Dissentts claim that those problems
ttmedieval or coloniat soeietytr (and thus'
disappeared with the end of
into the
that the jury was obsoleseent in 1?89, when it was introdueed
U'S' at 51?' is
Federal and alt the new State eonstitutiors), 391
absurd.ordinarily,thorrgh,thejrrrycanproteetagairstthese
narlower roles of faet
anomolous autoerats without straying from its
finding and defining norms under the guidance of eourt and
legislature.
Sometimesrhoweverrthesoureeofgovernmentaloppression
the
will be prosecutors and judges who simply do their iob-enforeirg
jtllty resistanee
Iaw-when it is the law itself whieh is unjtst. Then
beeomes
steps out of the two roles already diserrssed, and
rrguilty as
nullification: jury refusat to eonvict those who are
ehargedtt but are not guilty in the eyes of the
jurors. compare united
(19?2) (Bazelon, J., dissenting)
States v. Dougherty, 4? 3 F.2d l l I 3
(ngllifieation appropriate where a ndefendantts conduet is
tunlawful
protect the
but not blameworthy"). while Jttstiee white seeks to
eliminate
innoeent from lttrnfounded criminal eharges brought to
enemi6r, nullifieation seeks to proteet the technieally ggj!!a' those
minority of the
who tuve broken a law whieh at least a substantial
eitizenry believe is trnjust.S John Peter Zenger, our
mct
famous
r-ejeets ntrllifieatiort in favor of a
S. Jtstiee{hite eonsistently
tlline[s, 39 I U'!'
more majoritari* ril* C"*pard WilnersiPoon v..(proper
to packjurv
J-)
;i-d O6'6liiai""E oGentins, j'oineo by White,
380
ri.
etauama,
Swain
law) and
;;h
all
(permissible
to_exelude
"oniroibisial
"f
"
U.S. 20, (1965) tCo,[i, per lYhite, J.)
419
Uf"of.r from jgry in racial crime ease) witn taytor v. Louisiana,
il;;ri"rt
27
benefieiary of jnry nullifieation, admitted eaeh of the aets alleged in
the indictment and was acquitted nonetheless.
Nullifieation differs from norm finding in two crucial respects.
Together, they elucidate certain institutional features of the jury
left
mysterious by the narrower normfinding role, and in addition, point to
a wider legitimacy of the inry as a politieal institution in a polynomie
soeiety. First, the nullifying jnry, unlike the normfinder, eannot be
understood as acting under the ultimate authority of the legislature.
The norm findingjury defines the law where the legislature and
eourts have
left it
vague; the nullifying iury refuses to enforce law
that clearly exists. The normfinder is analogous to a eommon law
judge, $ving meaning to the law in the interstiees and laeunae of
the
Iegislative eommand, perhaps bending the language of the statute to
give
it
the effect that presumably would have been intended, but,
ultimately, subservient to the legislature. In eontrast, the nullifying
jury is an autonomous power. Like a proseeutor exercising his
unreviewable power of non-enforeement, the nullifying jury is not
merely interpreting legislative intent.
It
its own, whieh, again like the prosecutor,
has priorities and values of
it
ean use to deeline to
apply the legislative mandate in a specific situation.
Ftnt 5 eont.
U.S. 522 (1975) (Court, per White, J.) (where juror opinions on the law
are not in question, jrrry must be representative). The Cor.nt has
been almost equally hostile: the Witherspoon majority seeks to allow
norm finding but not nullification. But see Horning v. Distriet of
Columbia, 254 U.S. 135, 138 (1920) (Jruy has "the power to bring in a
verdict in the teeth of both law and facts").
--
28
this autonomous power to unilaterally prevent governmental
action is not anomolous in our system. On the contrary, the
Ameriean system is stacked agairut the exercise of governmental
power. The eharacteristic Ameriean solution to the problem of
tyranny is the structure of multiple vetos known as Ichecks and
balanees.rt We give many and varied
irstitutiors the power to prevent
governmental action. To beeome effeetive a statute must overeome,
first, the rigorous hurdles to majoritarianism erected by the
founders-lengthy legislative terms, eonsent of both houses of the
Iegislature, one of whieh, in the federal government, is deeidedly
non-majoritarian, as well as eorsent of the President or governor.
Even after a statute is enacted into law, courts may refuse to
enforee
it
on constitutional grounds, or may intepret
it out of
existenee. Once a statute is legitimized by the eourts, the judieiary
ordinarily views itself as obligated to enforce
it
in every case
properly brought before them, but see Rizzo v. Goode, 423 U.S.
362
(I976), but they do not look outside the court room to determine how
cases get
there. Prosecutory discretion to enforee the law in a
haphazard or diseriminatory manner is virtually unreviewed, United
States v. Falk,4?9 F.zd 616 (?th
cir. l9?3) (rare suceessful defense
on grounds of discriminatory prosecution: defendant established he
was only one proseeuted of ten thousand known offenders).
Prosecutory discretion to not enforce the law at all is entirely
unreviewed, A. Goldstein, The Passive Judiciary (1982). Regulatory
ageneies, police, and proseeutors eaeh have virtually total discretion
to deeline to charge violators of a dttly enacted criminal statute,
tr a
=l
as
,1
29
leglslatnrea have full discretion to decline to eriminalize in the first
fllcc. JurJ discretion to do the same is but one of many sueh eheeks
and balances on the too swift exereise of state power. Cf. Dunean v.
Louisiana, 391 U.S. at 156 (r'Fear of uncheeked power, so typieal of
or.r State and Federal Governments ... found expression in the
criminal law in this insistenee upon eommunity participation in the
determination of guilt or innoceneett).
The
first distinguishing feature of nullifieationr then, is that
it
relies on the jury as an autonomous souree of power not subservient
to the other branches. The seeond differenee is its passivity. The
normfinding jury determines the law and applies state powel
aceordingly. In contrast, the nrrllifyingiury can only prevent the
application of state power. A nullifying jury refuses to conviet a
teehnically guilty defendant; that is all.
These two features make the nullifying iury a very different
creature from the normfinder. The normfinding jury expresses a
soCial eofftensus, and, aS We haVe seen, loses mueh of itS ratiOnale
when that coneensus is
lacking. But the nullifying jury is different.
Even when natural law is no longer seen as embedded in the
consciousness of the citizenry, when fundamental values, rights, even
th€ Good itself, are no longer trarsparent, when the Shekhinah has
left the Temple and our
God is hidden, nullification is
still jttstifiable.
The law, onee eonsisting of itself evident rightsrrr has beeome
mysteriors and esoteric, no longer
fit for jury determination but
rather a subject for erudite seholarship and philosophie speculation by
the seholiasts of the academy and the judieiary, skilled at
it
I
.t.
'1
.
1
rl
"l:H
fl)
ru,:l
,fl
diety. But the nullifytng
interpreting written relies of a now silent
jgry do€s not depend on self-evident law' It only requires Prosaie
E
eheeks,balaneesandminorityrights.
$
{
to be found by the jury'
Rather than relying on eolleetive norms
.,,
"i',
: r.ei
,."$i
nullifieationtakesitsjt'stificationfromthefactofsocialeonfliet
'i*
.&.:
#
andthepossibilityofillegitimatecoereion.Theclassiealliberalism
of checks and
in our Corstitutions and their systems
ffi
expressed
re
governmental power
balanees focused on the problem of tyranny:
.,:
e:.
,i':
,Jr::1
:..4t
e.
wasthemostfearedsoureeofiltegitimatecoercion.lYithintttis
only relatively
power such as the nullifyirrg jrrr s needs
view, a veto
weakjustifieation.Thisjrrryneednote:rpressthewillofsociety;it
isnotamajoritarianorcorsensualirstitution.Sineecoercionis
irstitutiors must be eonvinced
suspectr many people in different
beforethegovernmentwillact.Thejrrry,likethelenglhytermsof
Senators,
jtst
towards
serves to dilute any sudden impetus
lawmaking.
power' a check and
The nullifying iury, then, is a eountervailing
abalancerasortofeitizensteouneilofreview'Assuehitisoneof
jury is one of the most
oarty, but from a liberal point of view' the
of these obstaeles is
peculiarly appropriate of these cheeks' Eaeh
intendedtolessenthegovernment|sabilitytoactwithoutgeneral
agreementthatitoughtto.Butalltheparticipantsintheeheeking
part of the state
process-excePt the jurors-are themselves
irstitutions.Liberaltheoryemphasizestheseparationofstateand
soeiety;incontrasttoHegelrthistraditionneveridentifiesthe
interestoftherepresentedwiththatoftheirrepresentatives.The
-.,,.d...at;
31
state and each of its eomponent parts have interests of their own.
And while the irstitutional imperatives of the judieiary differ from
those of police, exeeutive and legislature, the liberal must
nonetheless worry that even
if all these groups agree,
they
still
may
not refleet the interests of the eitizenry.
In eontrast to the various state irstitutions, a jury has no
interest of its own. Beeause jurors have
little contaet with their
sueeessors, they eannot edueate them; the jury eannot develop
institutional traditions or independent poliey preferenees (eontrast
the State Department or the judiciary).
It
has no
continuity: it is
composed of private eitizens who remain private exeept for this one
moment. The liberal jury, a group of randomly chosen private
persorui who mr.st spprove the applieation of a partieular law in a
partieular ease, is a splendid reifieation of liberal distrust of the
state: Governing is not left to the government alone.
Among the apparently oddest characteristics of the jury are its
brief life spsr its anonymity, its conclusory decisions, and their
finality in one direetion (aequital) but not the other (conviction).
Each of these eharacteristies is poorly e:rplained by the functiors of
faet and norm finding, but each is equally clearly related to
nullifieation. In addition, nullification permits a radical
reinterpretation of the unanimity requirement in a polynomic society.
Seerecy; utramwerability, and conelusory and unexplained
deeisions are ctEracteristie of another of our fundamental politieal
institutiors: voting. Voting, in a representative democracy, is the
#
32
and executive: proteeted by
r.rltimate eheek on the legislature
seefeey'withoutneedirrgtoappealtoarticulatedrationales'the
government' Absent secreey'
peacefully overthrow the
voters can
into automatic ratification of elite
voting generally degenerates
decisiors,asinNapolegnicFranceormodernEgyPt.Theseeret
ballotproteetstheindividrralvoterfromimproperpresstures;elosed
jurydeliberationssimilarly-ifnotpreeiselyanalogorrsly-proteetjwy
hinder iudges in their natwal
decisions. concl,sory jury verdicts
jury or treat it as a lower eourt' If the
tendency to seeond guess the
reluctant to determine
jury gives no reasons, the judges will be more
maintain
good enough' Seereey helps
that the reasons glven arentt
the power of the better
jury independence and ability to resist
and public or private powers'6
institutionalized judieiary, legistature,
jtry elearly cannot have the
Unanimity in the ntrlifying
meaningithasinthenormorfactfinder.There,unanimityhe}ps
truth; here' there may well be no
assure that juries aglee on the
truth. Unanimity is merely
a continuation of the general
6.Seerecyaloneisnot,however'asufficientdefenseagairst
[T;;*JXf;;*jU.,f*tt:*:J[i]11',:,1'i'tilldl"[ns-"i1.
jtry io aieuit eontrary-to the evidenee
tgeg) that the po*J'?tne
;i il i,'oi-" tt :1"r-"J[n,tJt::ffitr"f,:l1i'"":
ffi th; ,"* ", hr"'n
;;'ilh"t" m"tJ the general verdictrr
with judicial review of
incorreet.
s";r="Fi';;;i". ir;il;il6G
#,***[ti..*;;i:r*nJllx",lii+;:T"."1'"""totor"in'vorvedindetermi*f
;i,;ffi
*t'L:l}:"J$:1}'"iil,1:.'
to Bead the civil Rig
impedes review'
tn"i-i"ot"oy
it"priit
The argument in
ifi;Gn;rio"'
not
thit it
,il?-ii"r,
Precludes
it'
_;
33
purposeofthenullifylngiury:notonlymaya
majoritY of the itnY
a single iuror may. This is an
bloek the prosecution, but even
allowed to sit on
any minority group that is
for
resPect
of
expression
entitled to exereise the veto'?
the j,ry: they, too, will be
has reieeteilihis
?. Interestingly, the Supreme Court
notion of
juryasp!or-eetiiil,{,#Jl'.'^T:il jl"J.:nn$ilil,filJ;"
n:Jff"fr3[",:;;5';iiigei],'rinioingaperemptorv-challenge
systemtiratpreve**te{t:rl6;liiT,;'rf?iEf; ,Xfi'l}fri"rtyg,
the
I';-iJiii-di,i"rtvrromiiruvcrrarsed
Ii:H:'.ffi IrI;H,H:";;;ffi
tnatbenatiy' I discnss Swain'
-inlin""r t" impose
with determrrung
j,rri r*i"r'oonttict, altho,gh it eo,ld
infra, as a perverrio. of tn"
sreat
""
i,rv gantedthe
Fequarry wiu un#[&;;;;ormrinoing
well
apply
tiatiriesio
discretion oy
"rirni"rr
;i the white establishment'
ffivi;;;;i
uroaiiffi;;
because the case so
-*
aPt here'
Witherspoon is partiet'fTfY
ajoritarian/ consensus and
clearly illustrates
iiJ
onoi"" U"ir"""r,
Tif]::H#l*Tju#ff
[rr;i'#',ilf
"r',n'::1:$:iil'1"Y
penatty' Apparently
o"atn
wrretnei^tr;i.,;,iie ;d"i* [n"
ihis deeision, but the statute
no standar* *"r"'p'J;r"iiffii;*"_ri.,
the death
persons
jury
law
also excludeo frorn'tne iurY
irstaneeof
penalty. me rtrinoiJ'i"i, drt!"' is a ciassic
arti r i ci al
determine
rytfi!g'4-"::g**t
[H[#i] $*ffi'"Hl;ixr.r.i*HtiJ.
*
orrlyJrrstieeWhiteacceptedthisexclttsionofjurorsforno
(one of whieh
*tir.'iir" oin"r opinions
iury to be
premis";;ii;;rder for the See
Thiel v'
lYhite joined) staril-rom the
u"
t"ILit""g.1t*Inlt and
progenv'
neutral, iurors'nni
"*eluded'
its extensive
"t"
irs;trr trg+e) (rgzs)
southern pacifie'i.fr.; ffi
(rePresentative
siz
iig u.-s.
espeeiarly TayrorT. i?iri"ii,
iurors were
tne disagreement was over a.whieh
eross section
f.agt-finder, felt
reason other than legislati-ve
i*v
",""'i' #;didiirir,i-iriii
biased. The disse"#;
mifln-tbe inclined to
presumably
that jurors
were Uiasfi aiO exeiuOaOte,
"r"n*O-t*no""ei,*glt"iriii-p,i*ity
bend the facts,
i-tre maiority, in eontrast,
even without *rei"tai]ii-"iv _gr""iri;
acceptstnejury's"ri;i'{ildilg-t-ora*ohene6seesthatopinionson
not source-s of bias but'
when the death penaltyis lgprogri"t"
Ilowever' since
"t"
J"t"t'i*tion'
rather, the raw ;;i;ti""l "tii'" i*v
ineteatt' penalty is sometimesthat
the legislato, n*?Liid"d tl-t
*t'ii-i"-*iluna to eorsider only
appropriat", nJ'i-Iildi"g luror
" unatteraotv bppor"oJ*orr ,ry 6e exeluded'
ootion: Henee,
a Giitimate iurv role' and
ffiiv
obugtas
""o"ptr?''Itiii;;iil';t
as
34
t!r*r,
nullifieation is intimately related to asymmetrical
apparent reason why factfinding or
iudsial review. There is no
normfindirrgjuriesshorrldbemoresubjeettoreviewwhentheyfind
forthegovernmentthanwhentheydon't.However,itisobviotrsthat
thisisrequiredinanultifieationeontext.Ajuryfindirrgforthe
action; like a poliee decision not
defendant is a veto of government
toinvestigateoraproseeutorialdeeisionnottoindict,itshouldbe
however' tus no
final. A iury findirg in favor of the government'
sueh speeial
on virtue; other
standing' This iury claims no monopoly
in the system must remain vigilant as well.
drecks and barances
Ftnt 7 cont.
juror opposition to
tn"3*tiilffii*
sees unalterable
-*"qu"1ti+v
into the deeisionm aking pr
irrerevaniintr,oion
fi"r_i,
essentlal eomponent of
to interfere with the right reasons-tui"t "n
diseussed in the text'
the fair jury. und"i inE-uu"ral model be entitled to veto its
th; il;th;;"titrh"utj
ffi#;i;df even,itn"V
oirly a minority' (The Court reports
apptieation
"t"
about 4ox of the polled
opponents at the tirne-io have bLen
populace).
Acorrrtwhiehrespectedjurorstoagreaterdegreemighthave
ar-e capable of putting aside
assumed tn"t prop"ii,l'*iruotla i**
in Witherspoon aPpear
improper r"**.'-WiU" non" of ine opinions even in extraordinary
to eonsider this opti;;6is position is taken
:
r;'s*:ff
:##im:qlilry,$;r'#,t,3'r;'r;5''il"Jf;
a
as
made
had
he
himself was,'the rlrv 6"rt man" to review-deeision
(5th
trial iudgeX
o"riJ=J.'B;;';ft"h;ic;;'ti'
srz F'2d
1044
ci.ieis:i(ia*iti"ob-iasagains,*i"dli$:fr?J'l;irTli::??flq
Ut*tHT#'5',i:Idi'"1*ttTIipr'v'I""iii"tiaer<6ouvderendant'
*"#;*:#tli"*i:"1;;i';'{ffi }:fJTJ'n""gi:*tororgetthev
-"..q
lrT
35
to work each of the
For the system of eheeks and balances
variousirstitutionalactorsmusttakeresporsibitityforitsaetiors.
stamp
check points may simply rubber
Otherwise each of the mtrltiple
that someone else' somewhere elset
assuming
action,
proposed
the
improper' In practieet this failure
would have stopped it it it were
probablY haPPens'
The iury system as we rwr
it
may often play precisely the
oppositeroletotheonepostrrlatedinthentrtlificationmodel.Judgeo
seemtousejtrriesasadevieetoeasetheircorseienees.Sineerno
oneislikelytosuffer.ofwhoseconductthey[thejurorsldonot
v' Adams' 126
United States ex rel' MeCann
morally disapprove"t
8.2d174,775-6(2ndcir'1942)(L'Hand'J')'thejudgefeelsless
the defendant' The jury
responsibility for her part in eondemning
part of thelr
enabling them to share a
ileases the burden on judges by
Duncan
sometimes awesome resporsibility"t
v' Louisiana' 391 U'S'
145'186(1968)(dissentingopinion).Thisiselearlybad.Judgesare
of the law as someone
in any ease predisposed to see the morality
elsesproblem.Theyshorrldnotbefurthereneouragedtojrrstdotheir
iobsrlikegoodGermarsrwithoutconsideringthecoruiequences'
v'
for the maiority in United States
Judge Leventhal's approaeh
Dougherty,4?3F'zd11l3(D'C'Cir'I9?2)(acknowledgingthe
legitimacyofnullifieationbutdisallowingirstruetiontothateffect)
in its right to
the problem' The jury' not irstructed
eompounds
question
law' may ehose to leave that
eonsider the legitimaey of the
tothejudge,rationalizing,asthejrrrorsdidinUnitedStatesv.Spock,
that the defendant' although worthy'
416 F.zd 165 (Ist Cir. 1969),
36
.ras
nguilty as ehargedr'r J. Mitford, The Trial of Dr. Spock 232 (1969).
Meanwhilc, the judge,
if
a devotee of the esoteric eult of
nrrllifieation, may feel that she need not consider the acceptability of
the law, for that is the
jurls role.
In short, rather than judge and
jury supplementing each other as cheeks on arbitrary powerr eaeh
passes
the buek to the other and it stops nowhere. No one feels
responsible for the ultimate morality of the deeision to conviet,
imprison or execute the defendant.
Far better would be the inverse of Judge Leventhals approaeh.
Jurors should be taught about nullifieation, in order to impress upon
them the full responsibility and gravity of their task.
If
they are not
prepared to conviet under these circumstances, then the defendant no
doubt shouldnrt be convieted: Ordinary people are not likely to go
overboard in releasing enemies of the society which they are.
Judges, on the other hand, should be given sophisticated empirical
studies demonstrating that, in faet, jurors almost invariably evade
this duty, and like Milgramts subjeets simply obey the voiee of
judicial authority. That would leave both judge and jury responsible,
as they should be,
for the coereion they set in motion.
V: The Jury As Social Contraet: Whose
Community Conscienee?
The traditional English jury eharge ends, I'to this charge he has
pleaded g,rill.y and puts himself upon his eountry, whieh eountry you
are.fr Schefiin
hob.
Dyke, Jury Nuttification, 42 l.aw & Contemp.
6
51, 145 n.260 (Autumn 1980). The last legitimate jury function
ahO Van
I shall e:rplore stems from this perception of a eommon interest
37
between jury and eeeused. As an unmediated element of society
itself, the jury condemrs not as the bxternal power of the state, but
direetly in the neme of the community 8nd publie opinion.
The nrrllifieation theory diseussed in Part fV, supra, relies
heavily on the elassic Ameriean notion that state power is
particularly suspect. But in the criminal law (and, as liberal theorists
have increasingly elearly realized, in most other sreas alr well), the
state is not the sole, or even the primary, souree of illegitimate
coereion. The criminal is at least as dangerous as his imprisoner. llle
need, then, to take a wider look at the legitimation of powerr leading
to the model of a jury of peers, an enactment of the soeial eontaet.
Liberal theorists have often resorted to a metaphor of a social
contract. The contraet exprsses the idea that coereion is legitimate
when the apparently eoereed person has eonsented in advance.
However, usually people donrt go around consenting to be coercedt
and, even
if
they did, one might suspect that the consent itself was
coerced.
These two faetors have determined much of soeial eontraet
theory: On the one hand, the eontract is a quasi-contraet. Theorists
do not elaim that parties e:rplicitly agreed. Rather, they infer an
agreement from social relatiorships. The philosopher claims that we
would have agreed to this contraet
if
we had bargained to a
eonelusion, not that we aetually did agree to
it. g!. J. Getman and J.
Blackburn, LeDeL Eelqlienq (1983) (labor arbitrators eommonly see
themselves as aiming at the agreement union and management would
have reached, but didntt).
G
38
On the other hand,
for the idea of eonsent to have any power,
the eonserit must be free and uneoereed. Corsent exacted at gun
point will not do. But see, R. Noziek, Anarey, State, and Utopia
(1974) (apparently corsidering even physically coerced eorsent to be
'tfreett). Thus, theorists commonly ereet elaborate restrietions and
safeguards, extending the eommon law eontract doetrines of duress,
mistake, adhesion or even unconscionability. Most fundamental has
been the attempt to strueture the bargain in sueh a way as to treat
each individuals interest equelly to every other personrs. In the
earlier theorists this idea that people should consent without over
valuing their personal, particular interests and position in society was
expressed by moving the eontraet into an imaginary pre-soeial state
of nature. J. Locke, Second Treatise on Government (1689); see also
B. Noziek, Anarehy, State, and Utopia (197a); B. Ackerman, Social
Justiee in the Liberal State (t 980). More reeently, Bawls has
suggested a veil of ignoranee whieh nllsrys the eontractors to know
what types of lives are available but not which one would be their
own. J. Rawls, A Theory of Justice (1972); see also J. Bentham, A
Fragment on Government (directly holding that each individuals good
has same value as eaeh
other individualts).
Consent theory, then, does not require asking the criminal to
eonsent to his own punishment. His immediate personal interest
would blind him; even
if
he believed generally that eriminals should
be punished, he would probably want an exemption for himself.
It
is
to prevent this kind of free riding or self dealing that Rawls requires
his contractors to agree on the principles of jtstiee without
m
39
j
'Ibrle4eoftheirparticrrlarsituation:theyshouldnotputtheirown
gwd above the Good.
Imposition of the law by
I
jury of the defendantts peers is
perhapstheclosestrealworldapproximationofdeliberatiorrbythe
defendanthimselfbehindaveilofignorance.Thejrrrorseanbe
wNeh he would have made had h€
interpreted as making the deeision
eoming from different
not been so intimately involved. The iurors,
life possibilities' By agreeirg
walks of life, represent the different
views equal weight' and
r.rranimously, they give eaeh of their
frrrthermoredemorstratethatawidevarietyofpeoptewithdiftciE.
publie Power and on the harm
interests would aglee on this use of
eatsedbytheprivatecoercionitismeanttoeliminate.lYhileeac*r
requirement
juror reasons from her own perspective, the unanimity
shouldefftlrrethattheresrrltisacceptabletoall,muehasthe
hypotheticalsoeialcontraetforeesustolookatsoeietyfromthe
The iury, then, says to the
perspective of each of its members.
yourself would have
people like you eondemned you' You
defendant:
done the S8me. Cf.
!p$$,
156 U.S.
at 12? (dissent) (uror who iudges
nowmaybetheaceusedlater;they'lalternatelytasteofsubjeetion
ard rulett).
soeiety and the
The jury eondemrs in the name of the
eommunity.Aiudgerincontrast'eondemnsinthenameofthestate'
Thejuryismadeupofordinarycitizens,likethedefendant.Ifthey
arehispeersinasuffieienoyrealserse,ifthecommunitywhieh
in puttin$ himself upon
them together is suffieiently strong, if
binds
hiseountryrhehasputhimsetfuponhiscomrades'thejuryean
40
egtrmninthenameofthedefendarrthimself.Itspeakswherehis
(Cf' S' Freud' Civilization and Its
too weak slPerego did not'8
(superego as internalization of
Discontents 72-85(Straehey' ed' 1961)
is separate and apart' He is
social norms).) The iudge, in contrast'
vestedwiththemajestyoftheState,dressedinrobesderivedfrom
snerainwhichgovelnmentwasnotofbutagairstthepeople.The
His authority stems not
judge is a member of a legal priesthood'
but from his ability to
from his representation of the defendant
interpretthesemi-sacredtexts.A.deToqueville'lE@
(tne iury I'sanetions this decision by
Ameriea 286 (BradleV, ed' I946)
represent and [the iudgel by that
the authority of soeiety whieh they
of reason and of lawtt)'
the others I have
This jury function, more clearly than
of the composition of the iury'9
disctrssed, points up the importanee
Torepresentsociety,thejurymrrstberepresentative:pickedfroma
crosssectionofsociety.Torepresentthedefendanthimselfbehinda
of his peers'
veil of ignoranee, it mrct be eomposed
S.Notethatthejurymayeondemnthedefendantinthename
iuuy autonomoutsly. Instruction
of soeiety or nimseli, ,iiiriout aeting ilrd government will not
by the judge in tne*I'Jw'iriiurirnJ6y
of the defendant
interfere with the jury's statrrre "' '"pto"intative
the oower of
and his soeiety so long as the i*V""ilo*f,-eiercises
anO in ine general
interoretation irnpiioi't in tn"'rigirt "f ;diiti*iion
irlroitt of mixed law and fact'
important in other areas'
9. I do not mean to impty it is.nott 301
(catif. le80) for a
see Hovey v. supeiioi'iil[lite 1.30
that l{ithersooon death
dise,ssion of recent empirieal *otf. inaio"ting
,no'i likely to oonfrJt-"i":,,
seleeted i,ries
grounds.
"r"
""
p*-tTtmt
"T
41
is of crueial importance'
The definition of Peers' then'
Definirrgp€ergnarrowly-whichhasneverbeendoneinthiseountrybetween w make empathy
worrld imply that the differenees
peer defining
mrst vary aeeording to the
impossibte, or that the law
characteristie' Defining
it
of
broadly' then' affirms the community
Cotrt' thus' has repeatedly
all Ameriean eitizens' The Supreme
and
groups may not be deliberately
reaffirmed that identifiable
systernatieallyexeludedfromthejrrryvenire.E.g.Thielv.Southern
PaeifieB.B.,328U.S.21?(1946)(oaytauorers)istrauderv.lYegt
Virginia,I00U.S.303(I880)(non-whites);Taylorv.Louisiana'419
announee that
do otherwise would be to
To
(women)'
(19?5)
U.S. 522
not part of the American polity'I0
the excluded group is
Butaffirmirrgcommunitywherethereisnonewillnotdoeither.
TheAmerieanjuryhasneversufferedfromexcessivelydefendant
centeredrnarrowdefinitionsofpeer'Onthecontrary'adefendant
419
his grouPr Taylor v' Louisiana'
has no right to g4f, iurors from
challenge systems have often
U.S. at 538, while peremptory
guaranteeddefactotheiury"asanirsrumentoftheeconomieally
no longer
328 U'S' at 224' that is
and soeially privileged,"
Bclmitted de
iure'
$p!'
dominant sector of
A jury ehosen only from the
society,suchastheinevitablyallwhiteAlabamastruckjrrryrrpheld
of
202 (1965)' is an irstrument
in Swain v. Alabama, 380 U'S'
with pretensions to justice'
oppression
*f'.t{ot
a society
challenging the-venire
10. For this reason, a defendant
gtotrp' tavtor' 419 U's' et 526'
not belong to the ";;;d;d
need
42
Tlremythofeommunitystrouldnotbeallowedtoobscuresocial
reality.TheSupremeCourtin@geffeetivelyhetdthatblaeksand
white
whites are peeE, and thus blacks ean be tried by a
jt[y'
But in
alargelyracistsociety,thesystemupheldinSwainworksotherwise.
of all blacks,
The peremptory ehallerrge system allows elimination
380Us.at205(noblaekshadservedonapetitjuryinpreviowlS
years), 380 U.S. at 233 (dissent) (no black had ever served), and
itnigger loverstt as
presumably all known
well' Then' the iury is
(and oeeasionally
tnrsted with diseretion to interpret vague statutes
murder), in
to nullify elear ones, for irutance those prohibiting
with the elear communal norms of the subsociety from
accordance
which
it
predictable and
is chosen. Alabama has ereeted a highly
reuablenormfindingjr.rry;butthenormsareofacommunitywhieh
orcludes large segments of Ameriea'lI
TheSupremeCourtupheldanallwhiteAlabamajury'scapital
womsnt because
eonviction of swain, a blaek male, for raping a white
have held
of the importance of peremptory challenges. They should
peremptory challenges uneorutitutional, as incompatible with the
deceney'
most fundamental notions of democratie politieal
ll.
It is probabty not eoincidental that, in 1955' iuryint{els
the
far more oornroi, and the right to them far broader
i. Z"isel, Tire Aqeriean Jnrv 16 (1966)' By use
South. g. Kalven
wene
Jetction and e@eremptory
;i k;i tn- *nite "iiO
mononomic'
;ilii;"6, i*oo "oura u" restricted to a narrow,
trse of norm finding
effective
i.ryo.
stratum of soeietyl-init
qntem even where the Blaek codes did not
to maintain the dual legal"fi"weA
(Bradley'
aoolv. Cf. A. Oe toqut"viUl, t pemotrgcy iq e*eriea 282
ea. iglel (itrors always taken from ruling clastl''
,,... {," t
43
Penemptory ehaltenges are said to eruture a fair
trial.
They do
not. Indeed, there is little reason to think that they improve the
aceuracy of faetfinding, while they elearly pervert the politieal
functions of normfinding, nullifieation, and eomunity eonscienee.
Lawyers,
it
is saidr.use ehallenges to remove biased jurorsr when they
are unable to artieulate why they think the juror is biased.
Apparently, the reason that they are unable to artieulate these
suspicions is beear.se they are based on racism, ethnic prejudiee or
beliefs that people in particular professions or from eertain
neighborhoods are biased. See, e.9., Babcoek, Voir
Dire:
Preserving
the Wonderful Power, 2? Sten L. Bev. 545 (1975) (defending this
praetiee). Setting aside the question of whether beliefs of sueh
questionable validity ought ever to be the basis for aetion in a eourt
of Iaw, and assuming that lawyers are eorrect in their identifieatiors
of undesirable jurors, there is still
[ttle
reason to believe peremptory
challenges reduce bias.
Lawyers dontt challenge biased jurors. Assuming they have
suffieient information and are not simply aeting out of irrational
prejudiee, they challenge jurors who are unusuallyl2 Ukely to vote for
the other side. This would inelude, for instanee, jurors who are
12. A rational ehallenger would ehallenge only unusual jwors.
Challenge of an ordinary one would not help-if she were replaced
with another normal juror the ehallenge would be wasted, while if the
replacement were unusually favorable, the opposition would ehallenge
her. A challenge system neeessarily reduces variation and drives the
jnry towards the norm, whatever it is, of the venire.
Ti
'j
44
lt'
if
,lpraallv [kely to deeide the ease on its merits,
the lawyer
raeet
bclteved the merits to be with his opponent. In a ease involving
one side
wil
(tney ean be eounted uPon as
always prefer raeist jgrors
supporters regardless of the faets)r and thus
will ehallenge the mct
clear norr'racists.
seeks
But,itissaid,thelawyerswillcompete,andeventhougheach
to the
only his elients interest, an invisible hand will lead them
just resutt. This is wrong as well. competition only ensures that
peoplepereeivedtobeunusuallylikelytovoteforonesideortJle
other-whether for good or bad reesorul-will be removed Therc i*no
is making thc
conneetion between this unusualness and bias: bias
likely
decision for the wrong reasons, but one could be unusually
vote one way for the
!g!!
to
reasorul. In a generally racist community,
jnrors (tney alone will vote
non-racists may be the only non-biased
given suffieient
aceording to, and because of, the merits). But,
wotrld win
challenges, they will always be removed by the side that
if
polarized
race $rere the only issue. Furthermore, in a race
side,
eommunity, blaela will never sit in raee related eases. one
them' of
fearing that blacks will vote for the black, will challenge
collge' whites who vote for whites, being the norm, eorrld not be
eliminatedbyperemptorychallenges:Theyarenotg!@Ylikely
to be hostile.
Theperemptoryehallengesystemisirrationaltmderany
jury e:rpresses
eonception of the jury except one: that the
eommunity'
eommunity norms, and only some of trs are part of the
and eaeh
I{ithout the ehalleDg€sr both blaeks and whites would sit'
;
"'I
q
1,
't
*3
I
?1
45
';{j
--iY't
'**
rould have to convinee the other before eonviction would be
pocdue. If Ku Kltx Klan lynch mobs lvere aequitted, one assumes
thetblackmurdererswouldbeaswellrinretaliation'Andina
pnoteet
procBs not trrlike thet by whieh hostile nations learn to
eaeh
othersembagsies,orlaborandmanagementlearntoaceept
allow
arbitration orders, the two eommunities would have to learn to
to have
the applieation of law to their own in order
it
apply to the
other. Rather than the jrny being an irstrument of majority tyraruty,
to live with
beeome a useful part of our Proeess of learning
it
would
41
eaeh other in mutual resPeet.
r
.1
t
;i