CHAPTER 6
LEGISLATIVE JURIES
“Judicial decrees may not change the heart. But they can restrain the
heartless.”
– Martin Luther King, Jr.
Frank Gavin: The weak…(he lights a cigarette)…the weak have
got to have something to fight for. Ain’t that the truth? You want
another drink? Jimmy? (He places the glasses on the bar for
Jimmy to fill.) See that’s why the court exists. The court doesn’t
exist to give ‘em justice. The court exists to give ‘em a chance at
justice. [Emphasis added]
Laura: Are they gonna get it?
Frank: They might. They might. See, the jury wants to believe…I
mean, the jury wants to believe. It is something to see. I gotta go
down there tomorrow… pick out twelve of ‘em. All of ‘em. All
their lives…think, “It’s a sham. It’s rigged. You can’t fight city
hall.” But when they step into that jury box…and you can just
barely see it in their eyes. Maybe. Maybe.
Laura: Maybe, what?
Frank: (Long sigh) Maybe I can do something right.
The Verdict,
Scene 101
In this chapter I propose an improvement to the initiative process
that combines some aspects of the current initiative process with the
deliberative aspects of jury trials. The increasing number of initiatives
placed on ballots provides evidence that United States citizens do not
want to rely solely on the representative system of lawmaking.2 Likewise,
A scene from The Verdict, 1982, Twentieth Century Fox, Director, Sidney Lumet, FoxZanuck /Brown Productions, screenplay by David Mamet.
2 According to M. Dane Waters, “[S]ince the first statewide initiative on Oregon’s ballot
in 1904, citizens in the 24 states with the initiative process have placed approximately
1,900 statewide measures on the ballot…. In 1996, considered by many to be the ‘high
water mark’ for the initiative process, the citizens placed 102 measures on statewide
1
the advent of National Issue Forums and other citizen panels demonstrate
a trend toward public deliberation.3 What has not been proposed is a
process that would bring these two trends together. I propose Legislative
Juries© as a possibility for that process.
ballots and adopted 45 (44%).” Waters, M. Dane, “The Battle Over Citizen Lawmaking,
(Durham: Carolina Academic Press, 2001), p. xv.
3 Evidence of this can be found in several recent developments including the formation
of National Issues Forums (discussed in detail later in this section), the advent of James
S. Fishkin’s deliberative opinion polls, and Bruce Ackerman’s proposal for “Deliberation
Day,” just to name a few. See Bruce Ackerman and James S. Fishkin, “Deliberation
Day,” The Journal of Political Philosophy, Volume 10, Number 2, 2002, pp. 129-152.
A. Why Juries?
In Chapter Five I provided justification for the importance of
deliberation. I have not yet provided justification for the use of juries.
Thus, before I discuss my proposal for legislative juries, I need to provide
some justification for how the model of the jury would assuage some of
the concerns about participatory democracy: tyranny of the majority;
apathy; the absence of deliberation; and the average citizen’s
unwillingness to set aside biases and to attend to the public good.
In Democracy in America Alexis de Tocqueville discusses the
importance of juries in a chapter entitled “What Tempers the Tyranny of
the Majority.” He begins with the following assertion:
The jury may be an aristocratic or a democratic
institution, according to the class from which the jurors
are selected; but there is always a republican character in
it, inasmuch as it puts the real control of affairs into the
hands of the ruled, or some of them, rather than into those
of the rulers.4
De Tocqueville claims that juries can provide the most benefit to the
public when they are used both in civil and in criminal cases. He
proceeds to enumerate all the positive ways in which juries can have a
great influence on the “national character”:
Juries, especially civil juries, instill some of the
habits of the judicial mind into every citizen, and just
those habits are the very best way of preparing people to
be free.
It spreads respect for the courts’ decisions and for
the idea of right throughout all classes. With those two
elements gone, love of independence is merely a
destructive passion.
Juries teach men equity in practice. Each man,
when judging his neighbor, thinks that he may be judged
himself…
4
De Tocqueville, p. 272.
Juries teach each individual not to shirk
responsibility for his own acts, and without that manly
characteristic no political virtue is possible.
Juries invest each citizen with a sort of magisterial
office; they make all men feel that they have duties toward
society and that they take a share in its government. By
making men pay attention to things other than their own
affairs, they combat that individual selfishness which is
like rust in society.
Juries are wonderfully effective in shaping a
nation’s judgment and increasing its natural lights. That,
in my view, is its greatest advantage. It should be regarded
as a free school which is always open and in which each
juror learns his rights, comes into daily contact with the
best-educated and most-enlightened members of the upper
classes, and is given practical lessons in the law, lessons
which the advocate’s efforts, the judge’s advice, and also
the very passions of the litigants bring within his mental
grasp. I think that the main reason for the practical
intelligence and the political good sense of the Americans
is their long experience with juries in civil cases.5
Although the benefits of serving on a jury may not be quite as
extensive as de Tocqueville claims, I nevertheless agree with him and
with Lani Guinier’s claim (Chapter Three) that the jury process of
deliberating and arguing to consensus might provide a hope for the
future of citizen lawmaking. You may remember from earlier chapters
that both Guinier and Calhoun provide the example of juries and what
happens in the jury process as a paradigm for reaching democratic
decisions. In invoking the jury paradigm, they are in good company. As
stated earlier, John Stuart Mill argues that citizens must be involved in
local government to improve themselves both mentally and morally.6
Serving on a jury is one way to be involved in local government. In
addition, de Tocqueville argued that Americans understand virtue as
5
6
De Tocqueville, pp. 274-275.
Mill, CRG, p. 254.
"self-interest properly understood."7 Thus, when American citizens come
together to work out a public problem, as on a jury, they begin to
recognize that contributing to the common good furthers their selfinterest—properly understood. So it appears that the jury paradigm
provides at least a partial answer to all of the concerns mentioned above.
The jury addresses tyranny of the majority by selecting jurors at
random from a broad cross-section of society. The jury addresses apathy
by involving a great number of citizens every year as they are called to
serve on juries.8 The jury puts people in a position to deliberate, set aside
their own self-interest, and argue to consensus toward a common goal.
Thus, I conclude that the paradigm of juries (a democratic and
deliberative process) provides some hope for addressing the concerns
about citizens being involved directly in lawmaking.
Finally, before I continue with my proposal for legislative juries, I
should address the obvious objection that juries might not be as
promising or effective as de Tocqueville hoped. Why might the efficacy
of juries need to be defended? One response comes to mind
immediately—the O.J. Simpson trial. Gerald F. Uelmen, who served as
co-counsel for the defense in the Simpson trial, cites a survey taken after
the trial.9 He writes,
From the perspective of public opinion, the biggest loser in
the trial of People v. O.J. Simpson was not the prosecution.
It was not Judge Ito. It was the jury…[T]his is how those
7
De Tocqueville, p. 417.
It is estimated that over 5,000,000 American citizens will be called to perform their
civic duty as jurors during the year 2004 according to statistics compiled by the Arizona
Supreme Court. See “The American Jury” at the Arizona Supreme Court [website];
available from http://www.supreme.state.az.us/jury/american.htm.; Internet; accessed
May 15, 2004.
9 Uelmen, Gerald F., “Jury-Bashing and the O.J. Simpson Verdict,” Harvard Journal of
Law & Public Policy, Winter, 1997.
8
survey respondents rated the performance of the Simpson
trial participants: Judge Ito, 70% good or excellent;
Marcia Clark, 79% good or excellent; Johnny Cochran,
58% good or excellent; the jury, 30% good or excellent.10
The Simpson trial and the Rodney King trial (which was almost as
heavily publicized) have sparked an increased interest in and concern
over the jury process and have prompted many suggestions for reform.11
While researching the recent criticisms (and defenses) of juries in
America, I found surprising results. First, many who defend the
American jury system still rely primarily on historical justifications
offered by Blackstone, Hamilton, and de Tocqueville. In addition to the
previously quoted passage from de Tocqueville, the following quotations
lauding trial by jury were used repeatedly in law review articles.12
Excerpts such as the following from William Blackstone’s Commentaries
on the Laws of England were often quoted:
In settling and adjusting a question of fact,
when intrusted to any single magistrate, partiality
and injustice have an ample field to range in; either
by boldly asserting that to be proved which is not
so, or by more artfully suppressing some
circumstances, stretching and warping others, and
distinguishing away the remainder. Here therefore
a competent number of sensible and upright
jurymen, chosen from among those of the middle
rank, will be found the best investigators of truth,
and the surest guardians of public justice.13
10
Ibid., p. 475.
See e.g., Gerald F. Uelmen,”Jury-Bashing and the O.J. Simpson Verdict,” Harvard
Journal of Law & Public Policy, Winter, 1997, and Lisa Kern Griffin, Book Review: “The
Image We See is Our Own: Defending the Jury’s Territory at the Heart of the
Democratic Process,” Nebraska Law Review, 1996, p. 334.
12 See, e.g., Daniel P. Collins, “Making Juries Better Factfinders,” Harvard Journal of Law
& Public Policy, Winter, 1997, p. 491, and Lisa Kern Griffin, Book Review: “The Image
We See is Our Own: Defending the Jury’s Territory at the Heart of the Democratic
Process,” Nebraska Law Review, 1996, p. 334.
13 William Blackstone, Commentaries on the Laws of England, v. IV, p. 380 (11th ed.,
11
1791).
In addition, Alexander Hamilton’s famous quotation from the Federalist
#83 was often cited,
The friends and adversaries of the plan of the
convention, if they agree in nothing else, concur at
least in the value they set upon the trial by jury; or
if there is any difference between them it consists
in this: the former regard it as a valuable
safeguard to liberty; the latter represent it as the
very palladium of free government.14
The one other justification commonly relied upon to defend the
use of juries is also from the eighteenth century. In his famous work
entitled Essai sur l’application de l’analysse a la probabilite des decisions
rendues a la pluralite des voix (1785), the French mathematician and
social philosopher Marie Jean Antoine Nicolas Caritat, Marquis de
Condorcet, proposed his famous defense of majority rule. Paraphrased
by H. P. Young, the reasoning is as follows:
Enlightened voters honestly attempt to judge what
decision will best serve society. They may
occasionally judge wrongly. But assuming that
they are more often right than wrong, the majority
opinion will very likely be “correct.” This is just a
property of large numbers and is intuitively
obvious when there are only two possible decisions.
Condorcet rigorously demonstrated this proposition
using the newly developed calculus of probabilities.
He then proceeded to show how the idea could be
elaborated into a whole series of results about the
reliability of decisions of a voting body, depending
on its size, the competence of its members, and the
number of alternatives under consideration.15
This reasoning has become formalized in the literature on juries
as “Condorcet’s Jury Theorem.” Simply stated, the idea is “that a group
Alexander Hamilton, The Federalist Papers, ed. Clinton Rossiter (New York: Penguin
Books USA, Inc., 1961), p. 499.
15 H. P. Young., “Condorcet’s Theory of Voting,” American Political Science Review, Vol.
82, No. 4, December, 1988, pp. 1231-32.
14
will make a better decision than an individual.”16 Since 1998, the
Condorcet Jury Theorem has been discussed frequently in the debate
over unanimous versus majority decision rule with jurors acting as
strategic voters. The most recent articles in the debate support
unanimity over majority rule claiming, “unanimity performs better than
any alternative rule in minimizing probability of trial error and
maximizing expected utility.”17 For this reason, as I shall discuss in some
detail later in my proposal, decisions by legislative juries should argue to
consensus. Although reaching a consensus is not exactly the same as
unanimity, it is closer to unanimity than majority rule. I will clarify the
distinction and defend arguing to consensus as the standard for
legislative juries in Chapter Six.
The other surprising feature of this debate over juries is that,
while the proponents of juries rely on historical/theoretical support for
the jury system, the critics rely on “not more than the a priori guess that,
since the jury was employing laymen amateurs in what must be a
technical and serious business, it could not be a good idea.”18 So, what is
most surprising is the paucity of empirical evidence on this side of the
16
Fedderson, Timothy and Pesendorfer, Wolfgang, “Convicting the Innocent: The
Inferiority of Jury Verdicts under Strategic Voting,” American Political Science Review,
Vo. 92, No. 1, March 1998, p. 23. See also, David Austen-Smith and Jeffrey S. Banks,
“Information Aggregation, Rationality and the Condorcet Jury Theorem,” American
Political Science Review, Vol. 90, No. 1, March 1996; Serena Guarnaschelli, Richard D.
McKelvey, and Thomas R. Palfrey, “An Experimental Study of Jury Decision Rules”
American Political Science Review, Vol. 94, No. 2, June 2000; Peter J. Coughlan, “In
Defense of Unanimous Jury Verdicts: Mistrials, Communication, and Strategic Voting,”
American Political Science Review, Vol. 94, No. 2, June 2000; and Dino Gerardi, “Jury
Verdicts and Preference Diversity,” American Political Science Review, Vol. 94, No. 2,
June 2000.
17 Peter J. Coughlan, “In Defense of Unanimous Jury Verdicts: Mistrials,
Communication, and Strategic Voting, American Political Science Review, Vol. 94, No.
2, June 2000, p. 375.
18 Harry Kalven and Hans Zeisel, The American Jury, (Boston: Little, Brown, and
Company, 1966), p. 8.
debate. Reviews of recent law review articles on the efficacy of juries
reveal that the first (and last) major empirical study comparing judges to
juries was done circa 1960 as part of the Chicago Jury Project.19 Even
the most recent literature on judges and juries still cite the study done by
Harry Kalven, Jr. and Hans Zeisel. The results of that study are compiled
in their book, The American Jury.20
Kalven and Zeisel state that the purpose of their book was not to
decide whether the jury is a good institution but to find out how the jury
is performing.21 Their approach was to compare the decisions of juries
with the decisions that would have been made by judges.22 The book
begins with a brief introduction to the jury tradition:
The Anglo-American jury is a remarkable political
institution. We have had it with us for so long that
any sense of surprise over its main characteristics
has perhaps somewhat dulled. It recruits a group
of twelve laymen, chosen at random from the
widest population; it convenes them for the
purpose of the particular trial; it entrusts them with
great official powers of decision; it permits them to
carry on deliberations in secret and to report out
their final judgment without giving reasons for it;
and, after their momentary service to the state has
been completed, it orders them to disband and
return to private life. The jury thus represents a
deep commitment to the use of laymen in the
administration of justice…23
19
This major study of the American jury system was undertaken at the University of
Chicago Law School during the late 1950s and early 1960s pursuant to a grant from
the Ford Foundation.
20 Kalven, Harry and Zeisel, Hans, The American Jury, (Boston: Little, Brown, and
Company, 1966).
21 Ibid., p. 11.
22 Abbott, et al., state in section 7.03 (c) Jury Competence and Impartiality that “[O]ne
approach to the assessment of jury competence and impartiality is to compare the
decisions of juries with the decisions that would have been made by judges. Since the
reasoning is that judges may be taken as a measure of competence, the finding of
similarity between the decisions of judges and juries serves as validation of the
decisions of juries.” See Jury Research: A Review and Bibliography, Walter F. Abbott,
Flora Hall, and Elizabeth Linville, (Philadelphia: American Law Institute, 1993), p. 64.
23 Kalven and Zeisel, p. 3.
Following this apt description, the authors then turn to some of
the more famous critics and defenders of the jury system in order to
demonstrate that there are heavyweights on both sides of the controversy
regarding juries. One pointed criticism came from a former Dean of the
Harvard Law School when he stated bluntly:
The jury trial at best is the apotheosis of the
amateur. Why should anyone think that 12
persons brought in from the street, selected in
various ways, for their lack of general ability,
should have any special capacity for deciding
controversies between persons?24
Immediately following this question, Kalven and Zeisel respond
with some famous defenders of the jury system including Alexander
Hamilton, de Tocqueville, and Blackstone (all of whom have already
been cited above), and then add the following quotation from Lord
Justice Devlin,
Each jury is a little parliament. The jury sense is
the parliamentary sense. I cannot see the one dying
and the other surviving. The first object of any
tyrant in Whitehall would be to make Parliament
utterly subservient to his will; and the next to
overthrow or diminish trial by jury, for no tyrant
could afford to leave a subject’s freedom in the
hands of twelve of his countrymen. So that trial by
jury is more than an instrument of justice and more
than one wheel of the constitution: it is the lamp
that shows that freedom lives.25
Thus, Kalven and Zeisel conclude that, “after two hundred years,
the debate over the jury system, with distinguished participants on both
sides, is still going on apace.”26 In an attempt to bring some empirical
evidence to bear on this controversy, they designed a research project
24
Ibid., p. 5. Kalven and Zeisel cite Dean Griswold, from the 1962-63 Harvard Law
School Dean’s Report, pp. 5-6.
25 Ibid., p. 6.
26 Ibid., p. 7.
based on a sample of 3,576 jury trials and a survey of 555 judges. 27 The
research design was fairly simple:
By mail questionnaire trial judges were asked to
report, for cases tried before them, how the jury
decided the case, and how they would have decided
it, had it been tried before them without a jury.28
The results of the study were examined in several different ways
including breaking the data down into the categories of civil versus
criminal trials and analyzing the results by region and by state.
Ultimately what they found was that—across all categories—judges
would agree with the jury findings about 76% of the time.29 In the 962
cases where there was disagreement, they found the following:30 40% of
the disagreements resulted from juror sentiment about the law31 or juror
sentiment about the defendant32; 54% of disagreements resulted from
issues of evidence33; and the remaining 6% resulted either from facts
only the judge knew34 or from a disparity of counsel.35 Since over 50%
27
Ibid., pp. 35-37. Kalven and Zeisel admit from the outset a number of
methodological problems with their study, including sample size and self-reporting by
the self-selected survey respondents. However, they defend their method given the
limits of available data. One gets a sense of how difficult this study was when you
realize that no other researchers have attempted a similar study.
28 Ibid., p. 45.
29 Ibid., p. 56.
30 Ibid., p. 155.
31 The category “jury sentiments about the law” included coding for particular instances
of “jury equity,” that is, the jury’s decision implies “criticism of either the law or the
legal result.” Ibid., p. 107.
32 The category “jury sentiments about the defendant” included coding for “all reasons
for judge-jury disagreement attributable to the personal characteristics of the
defendant.” This would include the jury’s sentiment about defendant’s circumstances as
varied as “the crippled war veteran who evokes intense sympathy to the loud mouth
who alienates the jury.” Ibid., p. 107.
33 The category “evidence factors” contains any condition for disagreement between
judge and jury concerning issues of evidence including that the jury “[A]t times may
evaluate specific items of evidence differently; at other times the jury might simply
require a higher degree of proof.” Ibid., pp. 106-107.
34 The category “facts only the judge knew” included the occasional circumstance that,
“during or prior to the trial, and important fact will be come available to the judge but
not to the jury, such as whether the defendant had a prior specific criminal record or
not.” Ibid., p. 107.
of judge-jury disagreement was about evidence, Kalven and Zeisel
concluded that when the jury and judge agree on issues of evidence, the
24% disagreement rate would be reduced by more than half. Given that
judges (viewed as the experts) agree with the jury’s decision more than
three-fourths of the time, the conclusion reached by Kalven and Zeisel
was that juries do a very good job. According to the literature to date,
that conclusion remains either unchallenged or affirmed by the few
empirical studies done since that time.36
Although this influential study sheds some light on the efficacy of
the jury, what is missing from the debate are actual statistics about how
often judges overturn jury verdicts. There are some statistics about the
success of appeals in general, but appeals are granted for a variety of
reasons, so this does not necessarily reflect badly on the jury’s work.37
In fact, from the limited empirical evidence available, it appears that
when verdicts are reversed it is usually because a later court determines
that the law has been misapplied. But the application of the law is the
purview of the judge, not the jury.
35
The category “disparity of counsel” included the coding for the “instances in which
the superiority of either defense or prosecution counsel was given as one of the reasons
for the jury’s disagreement with the judge.” Ibid., p. 107.
36 See Neil Vidmar, “The Performance of the American Civil Jury: An Empirical
Perspective,” Arizona Law Review, Fall, 1998, p. 4. Vidmar claims, “The American Jury
continues to be cited as a leading study of civil as well as criminal juries…” and
“Research findings bearing on the performance of civil juries yield little support for the
extreme claims charging juries with poor and irresponsible performance.” (p. 32)
37 One such study of appellate reversals (this is all reversals, so it includes reversals of
jury trials and judge trials, not just the reversals of jury decisions) in the U.S. Court of
Appeals for the Second Circuit during the two-year period July 1, 1989-June 30,1991
rendered the following: “For the two-year period there were 2025 appellate decisions
and 491 reversals (in whole or in part), for an overall reversal rate of 24%…The largest
category of reversals consists of interpretations of a written document, usually a federal
statute…” See Jon O. Newman, “A Study of Appellate Reversals,” Brooklyn Law Review,
Spring, 1992, p. 1. This study indicates that reversals are more often about the
interpretation of laws or statutes, but this statistic includes judge trials and jury trials.
There are no separate statistics about reversals of jury trials, and thus, no separate
statistics about reversals based on the jury’s competence as fact-finders.
The accepted division of labor in a jury trial is that the jury
decides the matters of fact, and the judge decides the matters of law.38
So appellate judges are more often overturning the interpretation of the
law made by other judges than setting aside the factual findings of the
jury. The data that would cite how often the jury gets the verdict
“wrong” is difficult to find because the data relating to when judges
specifically find fault with the jury’s work is not extrapolated from that
larger body of statistics regarding appeals in general.
However, some law review articles did discuss the ability of a
judge to set aside the verdict of a jury.39 This is known as the “judgment
notwithstanding the verdict” or more commonly referred to as j.n.o.v.
(judgment non obstante verdicto). According to the literature and
supported by the relevant case law, this rarely happens.40 One reason for
this is the guarantee in the Seventh Amendment to the Constitution of the
United States that:
I]n Suits at common law, where the value in
controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried
by jury, shall be otherwise re-examined in any
38
“The United States Supreme Court has recognized the rule: ‘The controlling
distinction between the power of the court and that of the jury is that the former is the
power to determine the law and the latter to determine the facts.’ Dimick v. Schiedt, 293
U.S. 474, 486 (1935).” See J.Wilson Parker, “Free Expression and the Function of the
Jury,” Boston University Law Review, May, 1985, p. 23, n. 7.
39 One major study (in progress) has examined data gathered since 1970 by the
Administrative Office of the United States Courts and disseminated by the Interuniversity Consortium for Political and Social Research and found that “jury and judge
trials both experience an appeal rate of about 21% and a reversal rate also of about
21%.” In other words, the difference in reversal rates of jury trials vs. judge trials was
nil. The overall conclusion was that “[N]othing striking distinguishes jury trials from
judge trials, from the overall vantage.” See Kevin M. Clermont and Theodore Eisenberg,
“Appeal from Jury or Judge Trial: Defendants’ Advantage” [working paper online];
available from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=202768; Internet;
accessed March 20, 2004.
40 For a complete list of the relevant cases see William Powers, Jr.,”Judge and Jury in the
Texas Supreme Court,” Texas Law Review, Vol. 75: 1699.
Court of the United States, than according to the
rules of the common law.41
In addition, every lawyer I asked about the j.n.o.v. assured me
that judges almost never set aside the jury’s verdict.42 This was repeated
to me so often that it began to sound like dogma. This does seem to be
supported by at least one study. According to William Powers, Jr., who
studied judges and juries in the Texas Supreme Court,
A court can properly overturn a jury’s finding and enter
the j.n.o.v. only if there is no legally sufficient evidence—
that is, only if there is no evidence more than a scintilla to
support the verdict…A hallmark of this entire body of law,
however, is extraordinary deference to juries.43
Thus, it appears that the work of a jury is protected, if not almost
revered. This examination of the efficacy of juries has revealed that while
the critics of the jury system rely on some generalized misperceptions,
the available evidence is that the outcome of juries matches what the
judge (expert) would decide as much as 76% of the time. Thus, given
that the empirical evidence has revealed that juries agree with the expert
opinion more than three-fourths of the time, and given the theoretical
justifications for juries cited above, I conclude that there are good
reasons to adopt the model of the jury for citizen legislatures as a way to
improve the current initiative process.
“The Constitution of the United States” reprinted as Appendix B in West’s Business
Law, 2nd ed., ed. By Kenneth W. Clarkson, Roger LeRoy Miller, and Gaylord A. Jentz (St.
41
Paul: West Publishing Company, 1980), p. 993.
42 I particularly have to thank Dr. Jeffrie G. Murphy, Regents Professor of Law at
Arizona State University, for assuring me that what I was hearing was correct and for
referring me to his colleague, Michael Saks, whose area of expertise is juries. In a
phone conversation with Professor Michael Saks of Arizona State University on March
10, 2004, he confirmed that I had researched the relevant studies and statistics. I also
thank Professor Saks for leading me to the work being done by Theodore Eisenberg and
his colleagues at Cornell University. They are attempting to follow Kalven and Zeisel’s
work and produce the next major study on judges and juries.
43. William Powers, Jr.,”Judge and Jury in the Texas Supreme Court,” Texas Law Review,
Vol. 75, p. 1699.
Before I proceed to describe the model of the legislative jury in
more detail, I should attend to two questions that might be raised at this
point. One question is, how is the legislative jury process different from
the process that takes place when the legislature debates a law and then
puts it on the ballot as a referendum? The second question is a more
general version of the first question, that is, how is this process any
different from what the legislators do now when they debate and create
laws?
My answer to both of these questions is essentially the same. My
proposal for legislative juries (as an improvement to the initiative
process) differs from state legislatures in the following ways. First, the
debates that take place during state legislative sessions are debates
among a select few elected politicians. In the state of Arizona, for
example, the total number of legislators in the state congress is ninety.
Thus, the number of legislators involved directly in the making of the
laws is limited to that number. Because of the rate at which incumbent
legislators are re-elected to their positions, the number of different
people who may be involved over the years is minimal and limited to
professional politicians.44 The legislative jury process would involve a
greater numbers of average citizens in a deliberative, legislative process.
If even ten initiatives are placed on the ballot in a given year, and twelve
citizens are called for each jury (in a two-stage jury process), then at
44
Although the adoption of term limits is increasing the numbers, a recent study of 96
chambers of the state legislatures (those for which electoral data were available)
demonstrated that “[A]ll of the incumbency values are substantially above 50%,
confirming that incumbency is everywhere an advantage. Most, in fact, are over
90%….” See John M Carey, Richard G. Niemi, and Lynda W. Powell, “Incumbency and
the Probability of Reelection in State Legislative Elections,” The Journal of Politics, Vol.
62, No. 3, August, 2000, p. 681.
least another two hundred and forty citizens will be involved in the
process each year.
In addition to involving greater numbers of citizens in creating
legislation, the legislative jury process would have educative benefits for
those citizens. As stated earlier, being involved in considering the public
good helps to educate citizens. This direct involvement in the legislative
process would also have the benefit of putting average citizens into the
role of the legislator. Such “hands on” involvement should give citizens
a better understanding of how difficult it is to create legislation. This, in
turn, could lead to citizens being more sympathetic toward legislators.
B. THE MODEL
The Judge: Mr. Galvin? Mr. Galvin? Summation?
Frank Galvin: (He rises slowly.) (Sigh) Well… you know, so
much of the time, we’re just lost. We say, “Please, God, tell us
what is right. Tell us what is true.” I mean, there is no justice.
The rich win, the poor are powerless. We become…tired of
hearing people lie. And after a time, we become dead. We think
of ourselves…as victims. And we become victims. We become-we become weak. We doubt our selves. We doubt our beliefs.
We doubt our institutions. And we doubt the law. But today, you
are the law. You are the law. Not some book, not the lawyers, not
a marble statute, or the trappings of the court. You see, those are
just symbols of our desire…to be just. They are--They are, in fact,
a prayer. A fervent and a frightened prayer. In my religion…they
say, “Act as if ye had faith. Faith will be given to you.” If--If we
are to have faith in justice… we need only to believe in
ourselves… and act with justice. I believe there is justice in our
hearts.
The Verdict, Scene 22
Now that I have given some justification for both the importance
of deliberation and the promise of juries, I turn to the task of describing
the model I propose—a model of initiative by legislative juries.
Thankfully, I do not have to start from scratch in this
undertaking; obviously much of my model is patterned after the
American jury trial process. However, given that the legislative jury will
be used for the purpose of creating initiatives (as opposed to deciding
guilt or innocence), the jury trial process is not perfectly analogous. To
offer a brief preview of what will be presented in more detail later in the
chapter, the similarities between the well-known jury trial and the
proposed legislative jury include, but are not limited to: random
selection process of 12 members; voir dire in order to uncover biases that
might affect an impartial deliberation; the gathering of information
regarding the legislation to be done in open court with the public invited
to observe (but not participate) unless called upon as witnesses; expert
witnesses brought in to provide instructions (including attorneys who
may be randomly selected to instruct the jury on matters of law, when
necessary); deliberation and argument toward consensus in private; and
reaching a unanimous decision.45
The obvious dissimilarities include, but are not limited to: the
absence of an adversarial process; no plaintiff or defendant, and thus no
attorneys advocating or judges presiding; the presence of a neutral
moderator guiding the process of deliberation; and, the end goal as
legislation, not finding of guilt or innocence. I shall outline the process
more concretely as we proceed and thus attend to the specifics of the
similarities and dissimilarities at that time. However, because of the
obvious dissimilarities, I augment my model for legislative juries by
adopting (in part) the format for deliberation used in the National Issues
Forums.46 So before I continue with my proposal, let me first provide
some background on the National Issues Forums.
Around the country public deliberation is being promoted
through the use of National Issues Forums.47 The Kettering Institute has
created a network of Public Policy Institutes in several regions across the
nation. Through the Public Policy Institutes, communities are
encouraged to bring forward critical issues in order to discuss those
45
There is a slight caveat regarding this similarity because arguing to consensus is not
exactly the same as reaching a unanimous decision. I discuss this later in the chapter,
but the focus for legislative juries will be on consensus rather than on unanimity.
46 The idea of joining the jury model with the NIF model in order to create legislation
first occurred to me when I was attending a seminar (during the summer of 2002) on
how to hold National Issues Forums.
47 National Issues Forums is a network of citizens and their organizations. NIF is public
space.
issues in a “non-confrontational, non-partisan manner.”48 These
National Issue Forums provide:
[a] way to develop deliberative skills. To deliberate
means to weigh. NIF forums and study circles help
citizens weigh carefully the advantages,
disadvantages, costs, and trade-offs of basic choices
about an issue…We call that doing deliberative
democracy.49
In every forum, a trained moderator leads the forum.50 The role
of the moderator is
1. To provide an overview of the process of
deliberation—the rationale for the kind of work the
participants are getting ready to do.
2. To ask questions that probe deeply into what is at
stake in the issue and in each choice.
3. To encourage participants to direct their responses
and questions toward one another.
4. To remain neutral throughout the discussion, while
encouraging participants to explore all facets of their
own and others’ opinions.
5. To keep track of the time, so participants can move
through a discussion of each of the major approaches
and into an ending period of reflections.51
In addition to the moderator, every NIF has a person designated to
record the proceedings. The role of the recorder is:
1.
2.
3.
4.
48
To support deliberation by reminding forum
participants of their key concerns, the areas of
greatest disagreement, and the benefits and tradeoffs
their discussion highlighted.
To serve as a written record of the group’s work that
might feed into future meetings of the group or
additional forums.
To help inform other members of the community
about the outcomes of the deliberation.
To capture the tensions, tradeoffs, and common
ground for action.
National Issues Forums [website online]; available from
www.nifi.org/ppiarticle.html, p. 1; Internet; accessed October 25, 2003.
49 NIF website, p. 1.
50 NIF offers public workshops where people come together to learn more about
convening and moderating forums. For more information visit the NIF website:
www.nifi.org/ppiarticle.html
51 Ibid., p. 3.
5.
To express main ideas in clearly written, brief
phrases.52
The purpose and description of National Issues Forums is
described in this paragraph about the use of forums and/or study circles:
Many NIF conveners choose to organize single forums
around issues of concern in their communities. Most
single forums last two to two and one half hours. Many
others, however, arrange multiple sessions (study circles)
to allow participants greater opportunities to examine
issues in depth. Some groups set aside time for two
meetings; others might devote a separate session for each
choice. And some plan ahead of time for a session after the
forum to come back together to consider next steps. Some
communities begin their examination of an issue in a large
group forum and then break off into smaller groups for
subsequent sessions. The reverse also can be helpful—
starting in small groups and culminating in a larger
community forum. National Issues Forums is about
encouraging public deliberation. The needs of your
community will drive the schedule in which deliberation
can best occur.53
In order to facilitate positive, respectful, deliberation the NIF has
adopted a set of “ground rules” for the forums:
1.
2.
3.
4.
5.
6.
7.
8.
9.
52
53
Ibid., p. 3.
Ibid., p. 3.
The moderator will remain neutral.
Everyone is encouraged to participate.
No one or two individuals dominate the
conversation.
Listen to each other.
Practice mutual respect and attentiveness; really try
to understand the other person’s point of view.
Maintain an open mind. Be prepared to explore new
ideas and to change the way you view the issue.
Everyone understands this is not a debate.
Speak your mind freely, but don’t engage in personal
attacks.
Address your remarks to the group. Don’t hesitate to
question other participants to learn more about their
ideas.
10. As the discussion proceeds, try to identify the areas of
agreement and disagreement. Is there common
ground that could be the basis for group action?54
The mock forum that I attended as part of a workshop on
moderator training was entitled “By the People: Americans’ Role in the
World.” The workshop began with the facilitators distributing a
pamphlet with the same title and introducing the following issue for a
forum proposed for November, 2002:
As the only superpower since the end of the Cold War,
America exercises unparalleled global dominance. Yet, the
September 11 attack showed us that we are not immune to
the world’s problems. Powerful and prosperous, yet
neither entirely secure nor universally liked, Americans
are uncertain about their role in the world in the twentyfirst century. This issue book presents four perspectives on
the question of what kind of world we want our children
and grandchildren to live in. 55
After introducing the issue, the facilitators directed us to the
pamphlet and instructed us on the ground rules for the forum. The next
step was to introduce some possible approaches to the issue (described in
the pamphlet). According to the pamphlet, each approach should
“represent a distinctly different way of approaching an issue, with its
own set of benefits, drawbacks, and tradeoffs.”56 Offering the different
approaches is supposed to reinforce the notion of public deliberation in a
positive way. The moderator’s guide suggests that moderators should
clarify at the beginning of a forum that
[T]he work of the forum is to weigh each approach, to
“work through” consequences and tradeoffs, and to form a
Taken from the Discussion Guide from “A Public Deliberation on The Coming of Age”
sponsored by the Arizona Community College Association, St. Luke’s Health Initiatives,
National Issues Forums, 2002.
55 From the NIF Moderator Guide for the forum entitled “By the People: Americans’ Role
in the World,” November, 2002, p. 1.
56 Ibid., p. 3.
54
shared sense of what’s at stake in the issue…by developing
shared directions for public action, forum participants are
laying the foundation for making public choices
together.57
A few weeks before each forum, the persons responsible for
organizing the forum (this may be as few as 5 people and as many as 30)
will meet for what is called the “framing tier.” During the framing tier,
participants will develop at least three different possible approaches to
resolving the issue. The approaches should cover a wide spectrum and
be in tension in order to demonstrate that there are no easy answers. For
example, for the forum I attended the following four approaches were
framed as possible ways of thinking of the role Americans might play in
the world:
Approach One: International Order – Using Our
Power to Preserve Peace
Whether we like it or not, only America has the
military power to keep destructive forces in check
and ensure international stability. In this view, we
should use that power, when it is necessary, to deal
with threats to our own security and to world
peace. If others will not act with us to this end,
then the U.S. should act unilaterally.
Approach Two: The Democratic Project – Ensuring Rights
Our focus, proponents of Approach Two say,
should be on helping democracy to flourish
wherever we can. We would feel more secure in a
world where democratic values are widespread. To
achieve that end, we must greatly increase foreign
aid programs to help stabilize countries, such as
Afghanistan, and we encourage a wide range of
governmental and private programs that will
strengthen the development of self-rule in other
nations.
57
Ibid., p. 2.
Approach Three: The Global Market Prescription—Lifting All
Boats
Persistent poverty is the cause of much of the unrest
that fuels hatred of the U.S. around the world. In
this view, economic growth is the answer.
Wherever trade has substantially expended
worldwide, economic, political, and social
conditions have improved as well. We must
promote free trade throughout the world, and work
to dismantle barriers that keep local producers
from effective international competition.
Approach Four: Preserving Our Global Future—
Facing the Hard Tasks
According to Approach Four, we should be focusing
on a very different kind of threat—long-term global
problems that know no borders. AIDS, pollution,
famine, and scarce drinking water are but a few.
These problems affect everyone, and they demand
global solutions. No nation, however powerful, can
solve them alone, in this view. Americans must
take a lead in collaborative, multinational efforts to
address these problems.58
After introducing these four different positions, the moderator
then led the group through a discussion of the approaches by asking
questions associated with each approach. For example, while
deliberating about approach one, the moderator introduced questions
such as “[U]nder what circumstances do you think preemptive military
action against other countries is justified?” and “[W]hat risks are worth
our taking if we do not have the support and cooperation of other
nations?”59 Questions pertinent to each approach were asked as a way of
facilitating the discussion. In addition, each approach was accompanied
by the general questions,
58
59
Ibid., p. 1.
Ibid., p. 5.
What should be done?
What are the tradeoffs?
What do the critics say?
After deliberating on each of the approaches for approximately 20
minutes, the participants were asked to consider their individual
reflections, such as how their thinking about the issue may have
changed. There was also some time for group reflections such as
mentioning issues that remained unresolved. At the end of the forum
each participant filled out a post-forum questionnaire to help him or her
reflect on what was discussed.
While observing and participating in this mock forum, I was
impressed by several things and have adopted many of these for the
legislative jury. First, the work done during the framing tier helps to
organize and structure the deliberation so that people begin the
deliberation with some possible approaches to evaluate. This helps to
bring focus to the deliberations. Second, having clear ground rules for
the deliberation introduced at the very beginning set a respectful and
professional tone for the forum. The instructions were clear: this was a
deliberation, not a debate (which implies winners and losers). Third, the
presence of a trained moderator helped the group to stay on task, be
mindful of time constraints, and remain respectful and attentive. Finally,
setting the goal as compromising in order to resolve difficult issues,
rather than setting the goal as “winning,” seemed to develop a communal
feeling as opposed to creating factions.
Now that I have described some of the elements of the NIF, and
given that most readers are already familiar with the rudimentary aspects
of the jury trial process, I am ready to describe how a legislative jury
might function. There is one caveat before I continue with this proposal.
In order to describe how a legislative jury might operate, I will take the
reader step-by-step through a hypothetical example of the process. Even
though I go into some detail in the example, I am sure that many
logistical and theoretical questions will remain unanswered. I apologize
in advance for any lack of specificity. My goal is to create as complete a
vision as possible with the understanding that I may not have anticipated
all the practical and/or theoretical problems. So, having given that
disclaimer and having offered an apology, my description of how a
legislative jury might function is as follows.
To begin, an issue would be referred to a legislative jury as a step
in the already accepted initiative process. Currently, the initiative
process proceeds in the following way: An issue arises and citizens feel
that the current legislators are ignoring it. In response, citizens move
toward proposing an initiative by circulating a petition. If enough
signatures are gathered, they gain the right to place an initiative on the
ballot.60 In this same way, an issue could be brought forward (after the
requisite number of signatures have been secured) and a legislative jury
could be convened and assigned the task of creating a law that could be
then placed on the ballot in the form of an initiative. Thus, the process
of forming legislation through a legislative jury is really just a slight
variation on and improvement of the current initiative process.
60
The number of signatures required to put an initiative on the ballot varies from state
to state. For an overview of the initiative process and signature gathering, see David B.
Magleby, Direct Legislation: Voting on Ballot Propositions in the United States
(Baltimore: John Hopkins University Press, 1984), pp. 59-76.
For the purposes of describing the legislative jury process, I will
use the example of the issue of medical marijuana. Although any
difficult issue would suffice, I chose this issue because it is extremely
controversial, and it is not entirely hypothetical. The issue of legalizing
marijuana for medicinal purposes has been put on the ballot in several
states and has been approved by the voters. However, this legislation has
not been enacted into law for various reasons.61 So, for purposes of the
example, let us assume that enough signatures have been gathered and
citizens are calling for legislation on the legalization of marijuana for
medical use. In my hypothetical scenario, the issue would then be
referred to a legislative jury before the initiative could be placed on the
ballot.
As in the current jury model, citizens are randomly selected from
the agreed upon citizen lists (e.g. motor vehicle registrations or voter
registration rolls) to serve on legislative juries. After being selected to
serve, the prospective jurors would arrive at the courthouse on the
appointed day in much the same fashion as if they were selected to serve
on a jury convened to hear a civil or criminal case. Jurors would be paid
a daily wage to serve on the legislative jury. They would check in at
8:00 a.m. and wait with their fellow citizens to be called as prospective
jurors. Of course, there are some acceptable reasons for not responding
to the jury summons. For example, ill health and extreme hardship are
recognized as grounds for an exemption from the duty to serve. But
assuming that one has no legitimate excuse, the next step is to wait with
61
For example, this initiative has been passed twice by voters in the state of Arizona,
but has not been enacted into law because it is inconsistent with federal prohibitions
against marijuana.
other citizens to be selected for a specific jury. Citizens are assigned in
groups of thirty to move forward to an assignment. The idea is to be able
to choose at least twelve impartial jurors from the randomly selected
group of thirty.
Following the voir dire process in jury trials, the group of thirty
randomly selected jurors would first undergo some questioning in order
to determine whether they have any vested interest in this legislation.62
For example, if someone is suffering from a disease and her suffering
could be alleviated by the use of marijuana, she should be excused
because of a conflict of interest. Someone might wonder how important
it is that the legislative jurors are impartial. After all, if these randomly
selected jurors are supposed to be representative of the public, why not
just take any twelve citizens along with their biases and prejudices?63
However, if one keeps in mind that the goal of the legislative jury is to
deliberate toward the common good, then self-interest is supposed to be,
at least temporarily, set aside. The purpose of the voir dire is to insure
that the jurors are engaged in a good faith effort to do so. If someone has
a substantial interest in the outcome, this should be recognized during
the voir dire and that person should be excused.
Normally the attorneys and the judge would perform the
questioning during voir dire. However, since there are no judges
presiding over the legislative jury and there are no lawyers acting as
62 I do not attempt to discuss voir dire and the problems associated with it. For current
research on voir dire, see section 4.12 Voir Dire: Process and Effectiveness, contained in
Jury Research: A Review and Bibliography, Walter F. Abbott, Flora Hall, and Elizabeth
Linville, (Philadelphia: American Law Institute, 1993.)
63 This question was posed to me by Stefan Dolgert after his reading of this chapter.
advocates in the process, the questioning during jury selection would be
performed by professionals trained to perform this function.
The individuals performing the voir dire (let us call them the
“quaesitors”) would have to be selected for their previous training and
ability to ask pertinent questions and remain neutral throughout the
process of impaneling the jury. For example, someone with a legal
background or a background in psychology might be well suited for this
task. The position of quaesitor should be a professional bureaucratic
position, similar to the position of bailiff or court reporter, so that this
individual is continually on staff and randomly assigned to a jury.
Random assignment of quaesitors to juries would help lessen the chances
for the person in charge of conducting the voir dire to have requested
the job of questioning that particular jury in order to “stack” the jury. In
addition to this concern of possible corruption, another concern would
be that a prospective juror could lie during the questioning in order to
remain on the jury. However, I have built into the process at least one
other safeguard against the possibility for this type of corruption.
In order to lessen the chances of corruption, the legislative jury
process should involve a two-tiered approach.64 During the first phase,
a jury is impaneled in order to frame the issue and propose some possible
approaches to legislation. This “framing tier” (similar to the framing tier
that takes place in National Issues Forums) is crucial to the success of
legislative juries because this is the stage of the process in which a
64
Using two phases in order to lessen the chances of corruption was first suggested to
me by Stefan Dolgert in a conversation at Four Peaks Brewery on July 3, 2003. I am
forever indebted to Stefan for many contentious and enlightening conversations
throughout the course of our graduate student tenure.
diversity of approaches should be included for deliberation and
discussion. Again, following the NIF model, this “framing” jury should
propose at least three or four different approaches to the issue. The
approaches should vary greatly, even to the point of being diametrically
opposed to each other, in order to assure that a broad range of
possibilities is discussed. After the framing jury has done its work, this
first jury is excused and another jury is impaneled to select which of the
four approaches should be fashioned into an initiative that will then be
placed on the ballot. Dividing the responsibilities into two different
stages should help to reduce the opportunities for corrupting the process.
I discuss this more thoroughly when addressing other concerns below.
However, let us continue with a description of the framing jury.
The framing jury has as its goal the articulation of three to four
different approaches that will then be passed on to the next jury. During
the framing phase, a trained moderator begins by instructing the jurors
on how moderated deliberation is achieved. The moderator informs the
jurors about the issue, the ground rules, the procedures, and the
proposed goal.
The first task of the framing jury will be to read and discuss
amicus briefs that have been offered by interested parties.65 These
amicus briefs will have been solicited in accordance with a predetermined standard. For example, amicus briefs of no longer than five
65
For a discussion of the studies concerning the influence of amicus briefs on the
Supreme Court, see James F. Spriggs, II, and Paul J. Wahlbeck, “Amicus Curiae and the
Role of Information at the Supreme Court,” Political Research Quarterly, Vol. 50, No. 2,
June, 1997, p. 365-382 and Donald R. Songer and Reginald S. Sheehan, “Interest Group
Success in the Courts: Amicus Participation in the Supreme Court,” Political Research
Quarterly, Vol. 46, No. 2, June, 1993, pp. 339-354.
pages will be accepted by a certain deadline for consideration by the
jury. These briefs will allow interested parties to supply information to
the jury for consideration. The rationale behind this is to provide a way
for interested parties to inform the jury without allowing everyone who
is interested to give oral testimony in front of the jury. Allowing anyone
and everyone to come and speak in front of the jury would be unrealistic
given constraints of time and money. Asking interested parties to submit
their information in writing should help to limit the briefs to those who
are serious enough to take the time to put their concerns in writing and
file with the court.
The jury may decide that each juror should read one or more of
the briefs and then report to the rest of the jury, or if there are very few
briefs submitted, the jurors may decide that each juror should read each
brief. The reading and discussion of the preliminary briefs will be
conducted in private. These written briefs will provide background
information and arguments from interested citizens. After the briefs
have been read and discussed, deliberations on the approaches should
begin.
The initial deliberations on the approaches will begin in private
session. However, as the deliberations proceed, the jurors may find that
they would like to hear advice in the form of testimony from either
trained experts or submitters of some of the briefs. For example, the
jurors could ask for a psychologist or a psychiatrist to be brought in to
testify as to the addictive qualities of marijuana. They may also want to
hear more detail from a writer of one of the amicus briefs. Perhaps a
group of social scientists submitted a brief about the effects of
legalization of marijuana in Amsterdam, and the jury would like to hear
more of the details of that study. The jurors may invite experts and
witnesses to testify as needed and this testimony should take place in a
public setting. As in the present courts of law, only those persons invited
to testify may be heard at these public hearings.
After hearing the testimony, and being satisfied that they have
adequate information, the framing jury retires from the public
deliberation and forms the three or four approaches in private. The
framing jury must come to a consensus on the possible approaches. If
they cannot, the jury must report that they are “hung,” and if the
moderator agrees, the jury will be dismissed. If the available statistics on
hung juries in criminal and civil trials may be used as a reliable guide,
this will occur only rarely.66 Because the initiative process and the
legislative jury process involve taxpayer time and money, citizens should
take this responsibility seriously and make every good faith effort to
perform the assigned task. Given the statistics on the instances of hung
juries in civil and criminal trials, there is reason to be optimistic. If the
jury is unable to agree on possible approaches, the issue must go back to
the public for the required number of signatures before it could be
brought forward again.
But to continue with our hypothetical example, let us imagine
that, after reading the briefs, listening to testimony from witnesses, and
66 According to the National Center for State Courts, “[F]rom 1980 to 1997, the total
federal hung jury rate varies only 0.8 percent, from a low of 1.2 percent of all jury trials
in 1985 and again in 1988, to a 17-year high of 2.0 percent in 1992.” What is
surprising about this data is the very low and stable rate and this is among courts
requiring unanimous decisions. See Randolph N. Jonakait, The American Jury System
(New Haven, CT: Yale University Press, 2003), pp. 99-100.
engaging in deliberation led by a trained moderator, the jury settles on
four approaches to send onto the next stage. The chosen approaches are:
1. No legislation—leave marijuana illegal.
2. Legalize it as a prescribed drug to be used only for terminally
ill patients and with heavy taxation to offset some of the costs
of enforcement.
3. Legalize it as a prescribed drug to be dispensed at the
discretion of the attending physician.
4. Legalize it in small quantities (for personal use only, not for
distribution and sale) for all adults over the age of 18, but
with heavy taxation in order to offset the costs of education
and possible addiction.
After these approaches have been formulated the first jury is
excused and the process moves on to the second phase. During the
second stage, another jury is impaneled in order to deliberate (again
with a trained moderator guiding the discussion) on the possible
approaches and then come to some consensus on a proposed piece of
legislation. Impaneling this second jury helps to prevent either the
quaesitor or one of the jurors from exerting undue influence during the
process. So even if a quaesitor has stacked the first jury or if a person
with a vested interest has lied in order to be selected and to persuade
others on the framing jury, those persons are excused after developing
the approaches and cannot take part in the second stage of the process.
During the second stage another jury will be impaneled and the new
jury will deliberate on the approaches. The goal of the second jury
should be to propose a law that could then be placed on the ballot. Let
us call this second jury the “naming” jury because this second jury will
name one of the approaches as their choice for the actual initiative that
will be placed on the ballot.
It is important that the naming jury select their legislation from
the approaches that were sent forward by the first jury. If the naming
jury decides that they would like a different approach altogether, then
the outcome of their deliberation would be merely to re-frame the
approaches and send them on to a new naming jury for proposal of the
actual legislation to be placed on the ballot. I say this is important
because it was pointed out to me that if the second jury can deviate from
the approaches and in essence can “do whatever they want,” then the
two-stage process has been subverted and you have, in effect, a renegade
jury.67
To continue with our hypothetical example, let us say that the
naming jury has decided on approach three (above) and is now making
an attempt to formulate the legislation. During this stage the jury may
call in experts, as needed, to help them create the legislation. Before
being placed on the ballot, the proposed legislation would be submitted
for review by court appointed judges who would check the proposed
legislation against current statutes and relevant case law. If the jury has
unwittingly created a law that is either unconstitutional or in direct
conflict with other legislation, then it should not be placed on the ballot.
Of course, this should not usually occur because the legislative juries will
hear expert testimony and have access to appropriate legal advice during
both phases of the process.68
67
This was pointed out to me in a discussion with my son, Andre Campbell-Scoccia, on
March 19, 2004. I am grateful to Andre for his critical approach to my thesis, although
I cannot say it didn’t hurt a bit to have to concede to a 13 year old. Nevertheless, I think
he is right on this one.
68 A list of attorneys who are experts in their respective areas could be maintained and
called upon to advise legislative juries. These attorneys could volunteer their time to
testify as legal experts, their schedules permitting.
So let us suppose that the jurors in round two of the process have
decided to propose a bill that is similar to approach three above. With
the guidance of legal experts (as described above), the naming jury
formulates an initiative to be placed on the ballot. The completed
initiative might read as follows:
Marijuana may be dispensed to a patient under
the care of an attending physician in amounts not
to exceed one gram, by prescription only at the
discretion of a licensed medical doctor.
This proposed initiative could be the outcome of the naming jury.
The initiative would be placed on the ballot according to the applicable
state rules and regulations governing the placement of initiatives on the
upcoming ballot. Alternatively, the legislative jury might propose that
no legislation be enacted. For example, some of the “expert” testimony
may have convinced the jurors that any legislation making the use of
marijuana legal really is in conflict with federal law. In that case the
jury might decide that no legislation should be placed on the ballot at
this time because as long as the legislation conflicts with federal law it
will not be enforced and thus putting it on the ballot will waste taxpayer
time and money. Should this occur, the jury would be dismissed and the
issue set aside until such time as another group of citizens gathered the
requisite signatures to address the issue again.
Having briefly outlined the overall legislative jury process, I now
attend to a few more details about the nature of the deliberations and
outcomes. Following a rationale provided by Lynn Sanders, the
legislative jury should be “evidence-driven” rather than “verdictdriven.” As stated earlier, Sanders mentions this distinction and argues
that, in an effort to encourage minority views during deliberations, the
deliberators ought to follow the model of evidence-driven juries as
opposed to verdict-driven juries. She adopts this distinction from the
work of Reid Hastie, Steven D. Penrod, and Nancy Pennington.69 In their
study of jury deliberations, Hastie, et al., discovered that in verdictdriven deliberations,
jurors are primarily focused upon reaching a unanimous
verdict and on persuading dissenters to change their
votes and join the majority. This style of discussion is
typical of deliberations that begin with a vote, usually a
straw poll, in which each juror indicates his or her voting
preference.70
As opposed to this style of deliberation, during the evidencedriven model of deliberation
Jurors focus on a discussion of the physical and witness
testimony first, and then take a vote only after they have
spent time discussing the evidence.71
Based on the their study of deliberation in these two different styles of
jury, Hastie, et al., came to the following conclusion:
Finally, evidence-driven deliberation may be more robust
than verdict-driven deliberation, as shown by jurors’
higher ratings of the seriousness of the deliberation and of
the perceived pressure from other jurors. In summary,
verdict-driven juries, in contrast to evidence-driven juries,
are relatively hurried, cursory on testimony-law
connections, less respectful of their own and others’
persuasiveness and open-mindedness, and less vigorous in
discussion.72
Since the goal of legislative juries is to find common ground upon
which to create laws based on the public good, the evidence-driven
Reid Hastie, Steven D. Penrod and Nancy Pennington, Inside the Jury (Cambridge,
MA: Harvard University Press, 1983), pp. 163-165.
70 This description was taken from Behind Closed Doors: A Resource Manual to
Improve Jury Deliberations (Chicago: American Judicature Society, 1999), p. 17.
71 Ibid, p. 17.
72 Hastie, et al, p. 165.
69
model of deliberation should be adopted. The moderator for each
legislative jury should give instructions toward the evidence-driven
model of deliberation. This is in keeping with the focus of the legislative
jury, that is, focusing on the process rather than the outcome.
Since arguing to consensus is a key feature of this process, jurors
may be excused from the legislative jury for a “failure to deliberate.” In
the applicable case law, there is precedence for removing jurors who fail
to perform their duty to deliberate during a jury trial. 73 On a legislative
jury, the moderator could, in accordance with the applicable state or
federal statutes and accepted case law regarding a juror’s removal from
a jury, excuse a juror.
As to the possible outcomes of the legislative juries, remember
that the legislative jury is a two-tiered process. The outcome of the first
jury should be three to four possible approaches to the issue. These
approaches are sent to the second jury whose goal is to propose
legislation based on one of the approaches (or some combination of the
approaches). Since both juries must reach consensus, either jury could
end up “hung.”74 That is, the jurors might not be able to agree on
approaches (tier 1) or legislation (tier 2). They would then be
discharged and another jury impaneled at a later date if there is the
impetus to continue toward legislation on that issue.75
The cases cited most often are People v. Cleveland (2001) 25 Cal.4th 466, 106 and
People v. Thomas (1994) 26 Cal.App.4th 11328, 32. In both cases a juror was removed
73
for failure to perform his duty to deliberate.
74 Given my analysis of the debate over the unanimous decision rule used by juries vs.
adopting a majority decision rule, I am suggesting that both juries must argue to
consensus with is more like the unanimous decision rule than the majority rule. See
Chapter Six, fn. 378.
75 If the legislative jury has “hung,” then the process would have to begin again with
the issue being brought forth (again) by an appropriate number of signatures from
At this point one might wonder why I am proposing that the juries
argue to consensus as opposed to accepting a majority or super-majority
vote. A concern about requiring consensus rather than a majority vote is
that one person could act as a “hold-out” and thus control the outcome.
Given that one person on the jury could have that much potential power,
this would seem to make the process both anti-democratic and antiegalitarian. My response to this concern is based on a couple of
different considerations. First, the purpose of the legislative jury is
ultimately to have a group of average citizens try to reach consensus
about some good legislation on a difficult issue. I have been intentionally
using the phrase “reach consensus” as opposed to “unanimity” because
arguing to consensus and reaching a unanimous vote are not the same
thing. In my academic department, for example, we often argue to a
consensus on a course of action without ever taking a vote. Since
reaching a unanimous vote and arguing to consensus are not exactly the
same thing, this is a slight dissimilarity between current jury practices
and what I am proposing for legislative juries.
Currently, on most civil and criminal juries, the foreman must
continue to poll the jurors until a unanimous decision is reached. Most
jury trials require unanimity based on tradition, but according to the
literature mentioned earlier, there seems to be some evidence that
requiring unanimity results in better decisions than requiring only a
majority or super-majority. However, even if there were no empirical
data to support unanimity over majority decisions, I would still argue
concerned citizens, similar to the requirements necessary to bring an initiative to the
ballot.
that reaching a consensus (which is closer to unanimity than majority
rule) is an important part of the legislative jury process. Since the
purpose of the legislative jury is to have a representative portion of the
population reach a decision aimed to serve the public good, if one or
more persons cannot agree on the legislation, then perhaps they
represent some portion of the population that would not agree to that
legislation. Because the purpose of the legislative jury differs from the
purpose of a criminal or civil jury, the notion of a “hold-out” is not as
anti-egalitarian as it might seem.
Furthermore, because arguing to
consensus is not exactly the same as reaching a unanimous vote, a
person can agree to move forward without having to vote “yea” or
“nay.” Lani Guinier’s description of what (ideally) occurs on juries is
closest to what I envision for legislative juries:
Jurors come collectively to their task under
compulsion of law and are instructed to put aside
their biases, deliberating only on the basis of the
evidence. Their mission is to review the evidence
and decide an outcome that is in the public interest,
rather than their self-interest. The resulting
outcome is supposed to represent the consensus
view of all the jurors, as opposed to the ratification
of the view of a majority of the jury.76
For these reasons, I propose arguing to consensus as the model for the
legislative jury. There might also be some support for this process based
on the following theoretical consideration.
Bernard Grofman and Scott Feld have argued that if one considers
Condorcet’s jury theorem as a concrete expression of Rousseau’s
Guinier, p. 107. Guinier cites Parker v. Hoefer, 100 A.2d 434, 447-448 (Vt. 1953).
She claims, “[T]he jury model’s emphasis on achieving consensus in jury deliberations
is consistent with the group process research, which suggests that a majority decisional
rule tends to weaken the process of deliberation.” Guinier, fn.117, p. 259.
76
identification of the general will, this can give one hope for a deliberative
democratic body approaching the common good.
We hope that our reconstruction of Rousseau’s
theory can lead to a broader understanding of
democracy as a means to collective ends, rather
than as just as a means for aggregating narrow
interests residing in, and confined to, individuals.
While it is often assumed that democracy should be
based upon individuals following their own selfinterests, Rousseau’s and Condorcet’s contributions
suggest that democracy “works” better when
individuals try to see beyond their narrow selfinterests to the collective good.77
My reason for having the legislative jury aim for consensus is akin
to the reasoning in the paragraph above. In joining the notion of
Rousseau’s general will with the Condorcet Jury Theorem, this would
give me reason to think that the legislative jury process could provide a
concrete process for creating legislation based on the common good.
The above concerns have arisen quite obviously as I have
described how legislative juries might add a deliberative piece to the
current initiative process. There are some other disparate concerns that
should be addressed, and I turn to those now.
77
Bernard Grofman and Scott L. Feld, “Rousseau’s General Will: A Condorcetian
Perspective,” The American Political Science Review, Vol. 82, No. 2 (June, 1988), p.
572.
C. Addressing Some Possible Concerns about Legislative Juries
There are some other concerns about corruption of the process
that should be addressed. I have already addressed the concern that a
juror might have a vested interest and thus manipulate the outcome.
This should be handled by the use of the voir dire process and the two
staged approach. A juror selected for one stage of the process cannot
serve on the second jury. So, even though one forceful person might be
able to direct one jury, she would not have the same opportunity to sway
the second jury.
Another concern is about a phenomenon that arises as groups
deliberate. According to Irving Janis, groups exhibit certain symptoms
that lead to bad decisions.78 Janis terms this phenomenon “groupthink.”
The common symptoms are:
1. An illusion of invulnerability, shared by most or all the
members, which creates excessive optimism and encourages
taking extreme risks;
2. An unquestioned belief in the group’s inherent morality,
inclining the members to ignore the ethical or moral
consequences of their decisions;
3. Collective efforts to rationalize in order to discount warnings
or other information that might lead the members to
reconsider their assumptions before they recommit
themselves to their past policy decisions;
4. Stereotyped views of enemy leaders as too evil to warrant
genuine attempts to negotiate, or as too weak and stupid to
counter whatever risky attempts are made to defeat their
purposes;
5. Self-censorship of deviations from the apparent group
consensus, reflecting each member’s inclination to minimize
to himself the importance of his doubts and
counterarguments;
6. A shared illusion of unanimity concerning judgments
conforming to the majority view (partly resulting from self-
Irving L. Janis, Groupthink: Psychological Studies of Policy Decisions and Fiascoes,
Second Edition, Revised (Boston, MA: Houghton Miflin Company, 1983), pp. 174-175.
78
censorship of deviations, augmented by the false assumption
that silence means consent);
7. Direct pressure on any member who expresses strong
arguments against any of the group’s stereotypes, illusions, or
commitments, making clear that this type of dissent is
contrary to what is expected of all loyal members; and
8. The emergence of self-appointed mindguards—members who
protect the group from adverse information that might shatter
their shared complacency about the effectiveness and
morality of their decisions.79
Although this phenomenon may be widely recognized as
something that often occurs in open group discussions, my response to
this concern is that the legislative jury process will be a controlled
situation with a moderator. Because of the presence of a moderator and
well-publicized ground rules for the discussion, the chances for
“groupthink” should be minimized. In addition, the studies on juries
discussed earlier in this chapter verify that the decision reached by the
group reflects the decision that would have been reached by the
individuals (absent any pressure from the group). Furthermore, given
Condorcet’s theorem and the overall rate with which juries agree with
judges, there seems to be sufficient evidence in favor of the effectiveness
of juries that this concern over “groupthink” can be set aside.
While this proposal for legislative juries might seem a bit radical,
in arguing for the use of ordinary citizens to create legislation I am not
entirely alone. John Gastil has argued for “citizen panels.” These panels
bring citizens together to deliberate on candidates. This is similar to
Fishkin’s deliberative opinion polls, except that Gastil argues for panel
discussion on legislation as well as on candidates. In Gastil’s book he
79
Ibid., pp. 174-175
mentions two examples of this. In River Falls, Wisconsin, the city council
supported the following statement:
We support electoral reform that provides for a
public hearing in which a representative group of
voters can question candidates in person about the
issues that concern them the most and then share
that information with the rest of the public. We
therefore urge the governor, and other Wisconsin
elected officials, to take the necessary steps to see
that such reforms are enacted.80
In a similar movement, Gastil recounts the story of a bond issue in
Orono school district, west of Minneapolis, Minnesota. A bond issue had
been placed on the ballot in 1995 and 1997 and had failed both times.
As a result of this, in April, 1998, the Jefferson Center impaneled a
“citizen jury” to deliberate on the needs of the school district. The
twenty-four jurors listened to expert testimony and deliberated for five
days, then presented recommendations that led the Orono Board of
Education to draft a third bond issue referendum.81
In another attempt to bring concerned citizens together to
influence legislators, National Issues Forums have sponsored “prelegislative sessions” in at least one district in the state of Florida. In these
sessions, legislators in the state of Florida are invited to watch the public
deliberate on the “hot topics” facing the legislators before the legislative
session begins. I first heard of this while attending the NIF moderator
training in summer, 2002. The woman leading the training recounted
the following story. At the first pre-legislative forum held in Florida,
although all of the state legislators from that district were invited to
John Gastil, By Popular Demand: Revitalizing Representative Democracy through
Deliberative Elections, (Berkeley: University of California Press, 2000), p. 195.
80
81
Ibid., p. 195.
attend, only one legislator attended. This fact was published in the local
paper as part of an article covering that pre-legislative session. The next
year, again, the names of those legislators who attended the prelegislative session were published in the paper, along with the names of
those who did not attend. By the third year, all of the legislators from the
district attended the pre-legislative session.
These are just a few examples that demonstrate the movement
toward more deliberative, inclusive, participatory democracy. The use of
legislative juries could provide a decisive next step in that direction.
Since my proposal for legislative juries has relied heavily upon the
effectiveness of juries as a deliberative, democratic institution, I will end
this section with a quotation from Jeffrey Abramson’s influential book,
We, The Jury, in which he defends the importance of the jury system:
I will argue for an alternative view of the jury, a
vision that defends the jury as a deliberative rather
than a representative body. Deliberation is a lost
virtue in modern democracies; only the jury still
regularly calls upon ordinary citizens to engage
each other in a face-to-face process of debate. No
group can win that debate simply by outvoting
others; under the traditional requirement of
unanimity, power flows to arguments that persuade
across group lines and speak to a justice common to
persons drawn from different walks of life. By
history and design, the jury is centrally about
getting persons to bracket or transcend starting
loyalties. This is why, ideally, voting is a secondary
activity for jurors, deferred until persons can
express a view of the evidence that is educated by
how the evidence appears to others.82
82
Jeffrey Abramson, We, the Jury (New York: HarperCollinsPublishers, 1994), p. 8.