We, the Jury.

In We, the Jury, author Jeffrey Abramson traces the historical development of the jury and its role in the development of U.S. democracy from colonial times to the present. In the process, the reader gets a refresher course on the theory and practice of law from Aristotle to Batson, scientific jury selection, and specific cases such as DeLorean and Mitchell-Stans.

Abramson, a lawyer and professor of politics at Brandeis University, begins with a recognition that the only way most of us can participate in governing ourselves is through jury service. He notes that "far from being obsolete [the jury] is more crucial than ever in a multi-ethnic society struggling to articulate a justice common to U.S. citizens."

Abramson says we are indebted to Aristotle for pointing out that "for each individual among the many he has a share of virtue and prudence and when they meet together, they become in a manner one man ... some understand one part and some another, and among them they understand the whole." And Abramson very astutely uses this premise in his consideration of the concept of jury.

According to Abramson, there are two portraits of the ideal juror. The first highlights an impartial juror whose lack of prior knowledge of a case makes unbiased judgment possible; the second, a peer and neighbor of the defendant whose knowledge and understanding of the community can help clarify local issues of a case.

Abramson asks why anyone should believe juries capable of rendering accurate verdicts and then explains why juries are. He gives examples of "local justice" involving John Hancock, John Peter Zenger, and William Penn to demonstrate the raw democratic power of the jury.

The author points out how the antifederalists have stood against traditional notions of elite politics, seeing instead that a jury embodies local people who are representing local values.

The author discusses the decline of the local jury and the rise of the "impartial justice ideal." He notes that "the jury entered the 19th Century as a body authorized to resolve contested points of law on its own, and that even to refuse enforcement of law was considered just." But, he adds, we are leaving this century duty bound to follow the judicial instructions and to enforce the law whether the jury agrees with it or not.

We have changed from a local-knowledge model of the jury to an impartial-jury ideal that knows nothing about the incident in question. Abramson believes that jury selection has become wed to a flawed understanding of jurors' impartiality as if "the only open minds were empty minds," creating ignorance as a virtue and knowledge as a vice. He points out that in 200 years since the Constitution was amended to protect local jurors, our basic commitment to impartial justice leads us to be skeptical that neighbors can be fair and that total strangers can produce a more accurate verdict.

In an interesting chapter on jury nullification, its pros and cons, Abramson discusses whether a jury should be able to ignore what it considers to be an unjust broken law. Do the Jack Kevorkian, Marion Barry, and Oliver North trials show that jury nullification exists even when it is supposed to have been wiped out?

Abramson asks the question, What is democracy about, participating in selfgovernment or receiving equal protection of the laws? He suggests that from an institution "that once presumed ordinary citizens were confident to make independent judgments about the law," we have changed to a position that reflects "the assumption that jurors know precious little about the law." Is it appropriate, he asks, that "fact and law" be separated when that is not reality outside the courtroom? Is this not just the "rejection of jury nullification ... [but rather] a rejection of the idea of the jury all together"?

The author extensively discusses the pros and cons of a cross-sectional jury. Does it enhance the quality of deliberation? Or, does it bring a cross-section of competing group loyalties to a jury room? Is there an affirmative duty of jury commissioners to achieve demographic balance? Is there "proportional representation" and should there be?

What about peremptory challenges? Should they be used, and if so, how should they apply? Is there a "science" of jury selection, or are we devoid of evidence that the science exists? With respect to the science of jury selection, Abramson concludes that it is comparable to pinch-hitting for a batter on a single occasion, inasmuch as, "in both situations, statistical averages are helpful but they fall far short of forecasting any one trip to the plate or any one juror's verdict in any one case."

Jury unanimity is also a subject of much questioning. Why is it that the concept of unanimity remains with the jury long after our democratic institution has decided to be governed by majority rule? Abramson faces this issue by discussing the Supreme Court cases of Apodaca and Johnson, in particular. As he points out, the Supreme Court dispute over "unanimity" raises many philosophical questions. In the absence of unanimity, should the dissenters bother to voice their views at all? For those who are representing a minority view of some sort, why participate? Is the cross-sectional requirement thus only a formality?

The author also points out that what had been missing frequently in the debate about the jury and unanimity is the "genuine democratic faith in the collective wisdom that jurors achieve during deliberations, precisely because they draw on their differences in defining common ground."

Abramson concludes that the studies seem to indicate that although the product of deliberation does not significantly change on a non-unanimous verdict, the process of deliberation does. He adds that the data seem to indicate that those jurors who returned non-unanimous verdicts were not as confident in their conclusions as those who returned unanimous verdicts. This, of course, questions the legitimacy of the non-unanimous jury verdict altogether.

Another interesting section of the book deals with race and the death penalty. Should a jury be deciding whether or not there ought to be a death penalty imposed in a particular case?

Jeffrey Abramson concludes that the jury remains the embodiment of nonelite ideals in a democracy. He has put a lot of thought and effort into this book. It is difficult reading about a very difficult subject. However, the thoroughness of his research makes one want to urge that it be used in every law school in the country and, of course, that jury theory be taught. It is a fascinating book, best savored at leisure.