We the jury ...: secretive by design, juries are increasingly the object of public and media scrutiny. Is that good for America's legal system?

TEACHING OBJECTIVES

To help students understand how the jury system works and why juries are increasingly the subject of public and media scrutiny.

ROLE-PLAY: Tell students to assume that they have been hired as jury consultants and must examine prospective jurors for a murder trial.

What questions would they ask each prospective juror to determine whether or not he or she would make a suitable juror for the murder trial?

Take a few minutes to discuss students' questions. Then Present them with a few of the types of questions judges or attorneys typically ask prospective jurors. Discuss why prospective jurors might be asked each of these questions.

* Have the prospective jurors heard anything about the case?

* Do they know anyone who is linked to the case, including the attorneys, the judge, or any court officers?

* Would press coverage of the trial influence their judgment?

* What is the highest level of education they have attained?

* Have they or anyone close to them been the victim of a serious crime?

INTERVIEWS: Ask students to find out if their parents or other relatives have ever served on a jury. If so, have them do brief interviews about their jury service. Here are a few questions students might ask" Was the case criminal or civil? What do they remember about the deliberations? Did the jury find the defendant guilty or innocent? If guilty, what was the punishment? Did they think the process was fair to both sides? Use students' interview results to spur further discussion.

DISCUSSION QUESTIONS

* Explain why you would--or would not--like to serve on a jury.

* Do you agree with the policy that mandates jury duty?

* Should TV cameras be allowed to record jury deliberations?

WEB WATCH: www.abanet.org/publiced/courts/jury_role.html, an American Bar Association site, offers brief explanations of the structure of courts, the role of judges, judicial independence, and trial and grand juries.

We have a criminal jury system which is superior to any in the world," Mark Twain wrote in 1873. "Its efficiency is marred only by the difficulty of finding 12 men every day who don't know anything."

Juries these days include women, of course, but in other ways they are still something of a paradox. In most trials, 12 amateurs, selected in large part for their ignorance of the particular issues involved, have almost total power to decide what will happen to the people involved. They can set one defendant free and sentence another to death. They can reject lawsuits as frivolous or order companies to pay hundreds of millions of dollars in damages.

With television shows like Lazy & Order, networks like Court TV, and high-profile cases like those of Martha Stewart and Scott Peterson, juries are very much in the spotlight these days--and they are chosen more carefully and their work is scrutinized more closely than ever.

ENGLISH ROOTS

At the same time, the work of juries is, by design, meant to be largely secret and not subject to second-guessing. Jurors are in many ways both the least understood and the most protected participants in the U.S. legal system.

The American jury system is rooted in ancient English common law. Trial juries are required by the Constitution for many cases, the result of the Founders' conviction that the judgments of ordinary people are the best defense against tyranny. Indeed, among the grievances listed in the Declaration of Independence was that King George III was "depriving us in many cases of the benefits of Trial by Jury." The system has flourished here, even as it has largely disappeared in Britain and other countries, where juries are thought to be cumbersome and erratic.

A MILLION JURORS A YEAR

The American commitment to the jury system remains strong, though specific verdicts have generated controversy, like the 1995 acquittal of O.J. Simpson of murder, which fiercely divided the country, largely along racial lines.

More than a million Americans serve as jurors every year, generally in groups of 12. In most states, showing up for jury service when summoned is mandatory. In the federal court system and in most states, jurors are required to be at least 18, mentally competent, able to understand English, and free of any convictions for serious crimes or obvious bias.

During jury selection, lawyers are allowed to question potential jurors and can reject a certain number of jurors for almost any reason by using what are called peremptory challenges. In 1986, however, the Supreme Court ruled that lawyers may not exclude jurors because of their race. In 1995, the Court expanded that ruling to forbid exclusions based on gender. Some critics say those rulings have been largely ineffective. When challenged about excluding, say, large numbers of black or white jurors, most prosecutors are able to give other, seemingly neutral, reasons for wanting them off the panel.

Jurors are required to promise to approach the case with an open mind, to consider only the evidence and arguments presented to them, and to deliberate in good faith. Depending on the kind of case and where it is tried, jury verdicts do not always have to be unanimous. In some states, a 9-to-3 decision is sufficient. While judges and appeals courts may overturn jury verdicts, they do so rarely: Juries are generally meant to have the last word on the facts of a case.

THE NEWSWORTHY JUROR

As the public's fascination with trials and the justice system has increased, the press has become increasingly aggressive in trying to learn about jurors and their deliberations, a trend that some critics warn could weaken the legal system.

In March, for instance, The Wall Street Journal and The New York Post published the name of a juror during deliberations in the trial of two executives of Tyco International, a manufacturing conglomerate, in New York. The papers argued that she had made herself newsworthy by appearing to signal prosecutors that she was sympathetic to their case by flashing an "OK" sign with her thumb and forefinger. The New York Times did not name the juror, Ruth Morgan, a 79-year-old former teacher and lawyer, until the case ended. It did, however, send a reporter to her apartment building while the jury deliberated and reported that she had been stingy in tipping her doorman. (Morgan later denied both flashing a signal and being a bad tipper.)

After those articles were published, the judge in the case declared a mistrial, saying that a threatening letter received by Morgan made it impossible to go forward. Critics said the letter would not have been sent had she not been identified in the press.

A CHILL IN THE JURY ROOM?

Nancy J. King, a Vanderbilt University law professor, says the newspapers' conduct, though it appeared to violate no law, will have a negative impact on the willingness of others to serve as jurors and on the deliberations of juries. People will be less candid, she says, if they know a description of what they said as they struggled to decide the case could become public soon afterward.

The debate over the privacy of jurors may grow sharper as television journalists try, and sometimes succeed in, placing cameras in the rooms where jurors deliberate.

Last year, the public television documentary program Frontline obtained a Texas judge's permission to film the deliberations of a jury in a death penalty case. There was an outcry, and the Texas Court of Criminal Appeals eventually reversed the ruling: Cathy Cochran, a judge on the appeals court, said that TV cameras should be treated no differently from individual people who might ask to sit in on a jury's deliberations. "If Frontline is entitled to put its eyes and ears into the jury room, why not Aunt Tillie?" Cochran wrote.

Experts predicted no one would attempt something similar. But ABC News got permission to do just that in Ohio, and in June filmed the deliberations in a capital case for its program In the Jury Room, which was broadcast in August.

Another subject of debate is the growing use of jury consultants. Lawyers have traditionally relied on their own judgments in questioning potential jurors, but they are increasingly turning to consultants to help them figure out which potential jurors to exclude during the jury selection process, leaving those they believe will be most sympathetic to their clients.

To some observers, the consultants, who use questionnaires and other techniques, are trying to manipulate the judicial system and are flouting the idea that juries should be impartial. Others say that it's very hard to find jurors who have not already been swayed by what they've read in the newspaper or seen on television, especially in high-profile cases.

AS AMERICAN AS ROCK 'N' ROLL 

In any case, it's debatable how much influence consultants and defense attorneys can have in a process that involves both psychology and educated guesswork. "Whether they are any good is a tricky question," says Phoebe C. Ellsworth, a professor of law and psychology at the University of Michigan, "because you never know how the case would have come out without them."

Despite the debate over the coverage and selection of juries, the American commitment to the jury system has not changed over two centuries, says Paul Butler, a law professor at George Washington University. "Nobody does trials like Americans," he says. "We made it an art form. It's almost as fundamental a part of our culture as jazz or rock 'n' roll."

Why Are Some Juries Grand?

One particular kind of jury--called a grand jury--always convenes in secret, and the results of its deliberations are revealed only if it decides to charge someone with a crime, in a document called an indictment. Unlike regular juries, grand juries typically hear only a prosecutor's presentation of evidence, without rebuttal from the defense. Grand juries are generally target than trial, juries. In New York, for example, there are typically 23 people on a grand jury panel, versus 12 on a trial jury in criminal cases.

QUIZ 3

We the Jury ...

1. In most trials, jurors are selected in large part

a because of their knowledge of the law. b because of their knowledge of the case facing them. c on the basis of their education. d for their ignorance of the issues involved.

2. The American jury system

a was conceived by the Founding Fathers. b was brought to this continent by Columbus. c is founded on English common law. d serves as a model, for countries around the world.

3. The number of people who serve on a jury is

a usually 12. b usually 6. c usually 9. d determined by the type of case.

4. Peremptory challenges are defined as

a jurors' rejection of their fellow jurors' decisions. b a judge's dismissal of evidence in a case. c a defense lawyer's right to question witnesses for the prosecution. d a lawyer's exclusion of a person from a jury.

5. In one of America's most famous trials, the Rosenbergs were executed after being found guilty of

a espionage. b murder. c committing terrorist acts. d inciting riots.

6. The article says psychology plays a rote in picking jurors. How do you think psychology might work in jury selection? --

Answer

1. (d) for their ignorance of the issues involved. 2. (c) is founded on English common law. 3. (a) usually 12. 4. (d) a lawyer's exemption of a person from a jury. 5. (a) espionage. 6. Answers will vary, but could include the idea that attorneys or judges who are questioning prospective jurors might be on the lookout for the way that they answer questions. For example, do they seem nervous or evasive? Do their answers lack clarity? If so, are they trying to hide something that could influence their ability to be fair?

Adam Liptak is the chief legal correspondent for The New York Times; additional reporting by Barry Meier and Jonathan D. Glater of The Times.