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The jury's dilemma: playing God in the search for justice: solving the problems lurking in America's courtrooms.

Lives are lost and won in the courts, lost and won in the law--everyday, everywhere ... But in the jury room, the thought cannot be avoided, since there you learn that justice doesn't merely happen (neatly, reliably, like a crystal taking shape in a distant vacuum); justice is, rather, done, made, manufactured. Made by imperfect, wrangling, venal and virtuous human beings, using whatever means are at their disposal. (1)

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THE Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." (2) In fulfilling this precious right, nearly one million Americans serve as jurors in more than 80,000 jury trials in the country every year. (3) In 2004, the American Bar Association ("ABA") decided that it was time to "begin paying closer attention to ways we can support the juror so that each empanelled group will be a true representation of the community, have the tools and processes necessary to receive evidence, deliberate constructively, and deliver a just verdict confidently." (4) As a result, the ABA President at that time, Robert Grey Jr., launched the American Jury Initiative to "strengthen the jury as a democratic institution and enhance Americans' understanding of its role in our system of law and government." (5)

As part of this initiative, President Grey formed The American Jury Project and the Commission on the American Jury. The American Jury Project, has recently completed drafting a set of nineteen principles for juries and jury trials that range from the obvious--preserving the right to jury trial--to the more charged--the trial court's prompt undertaking of inquiries into allegations of juror misconduct. (6) The preamble emphasizes dual goals: the preservation of the jury trial and the enhancement of juror participation. In effect, the driving force behind the reworking of the jury system is the need to effectuate practical changes to its functioning and management. As Supreme Court Justice Sandra Day O'Connor stated, "[o]ur nation relies on the determinations of juries of our peers in both civil and criminal trials ... because you are the ones capable of deciding who is to be believed and what the facts are." (7)

The twenty-three-member committee of the American Jury Project has been true to its mission by proposing common sense solutions to some of the jury system's most persistent problems. (8) Three of the biggest problems in serving as a juror include: jurors' expenditure of time and money, under-representation of a broad section of society in the jury pool, and a lack of understanding of the facts and the law by empanelled jurors. The Project has addressed these issues in simple terms. For example, the "time required of persons called for jury service should be the shortest period consistent with the needs of justice" and "persons called for jury service should receive a reasonable fee." (9) To counter the critique that juries contain the proper smattering of the educated and uneducated, the employed and unemployed, men and women, thus excluding the rich, educated, and professionally employed, the American Jury Project committee has proposed that, "[c]ourts should collect and analyze information regarding the performance of the jury system on a regular basis in order to ensure the representativeness and inclusiveness of the jury source list." (10) Moreover, "[a]ll automatic excuses or exemptions from jury service should be eliminated." (11) Finally, to resist jury ignorance, the committee proposed that, jurors should be allowed to take notes during trial, and they should be provided with identical trial notebooks which may include such items as the court's preliminary instructions, selected exhibits which have been ruled admissible, stipulations of the parties, and other relevant materials not subject to genuine dispute. Additionally, jurors should be permitted to submit written questions for witnesses to help understand and retain the information. (12) Furthermore, the committee has proposed making jurors' understanding of the facts and law more complete by offering all jury instructions in plain and understandable language.

These proposals are a welcome injection of practical suggestions to our overworked and often misunderstood jury system. To any practicing attorney who has brought a case before a jury, these proposed changes are a modicum of sanity in an otherwise illogical process. While the jury system does need an infusion of best practice techniques, a question that burgeons like a cloud before a downpour remains: How is the legal profession to decide the best way for jurors to do their jobs if the very purpose of a jury remains unclear? As the men and women who enter the jury box often express, their aim in deciding a case is often unclear or conflicted. Some enter the decision-making process in determining culpability with the aim of doing "justice" while others begin their deliberation with the intent of applying the "law." Are juries, as members of the community, empowered to represent society's power and thus hand out "justice," (13) at the expense of playing outside the boundaries of the "law" or do we expect the jury system to strictly apply the "law" that society has passed through the legislature, even if it will result in more societal harm? To put it simply, is the purpose of the jury system to apply the "law" or to reach "justice"?

This article explores the jury's dilemma by plunging into the historical and present application of the jury's purpose in criminal trials. Nothing increases the flavor like stirring the pot, and only when human beings and the consequences of their actions come into play, does the dilemma of a jury's purpose become glaringly present. This article explores the jury's dilemma through two distinct criminal trial deliberations and briefly explores the historical roots of the jury system. Finally, this article attempts to make sense of why juries inconsistently apply "justice" and the "law." This exploration hopes to better understand the jury's dilemma.

I. The Jury's Dilemma

"It's really hard to figure out what ultimate justice is ... to me following the rules is justice because the rules are there for a reason, to maximize justice in society ... if the rules have been applied fairly, then a just result has been reached." (14) Ninth Circuit Court of Appeals Judge Alex Kozinski echoes the jurisprudential approach of those who believe that the roles of both juries and the judiciary are only to apply the law. The reality of such a view, when applied to imperfect humans and limited facts, can lead to heart-wrenching decisions. The strict application of the law can sometimes result in a murderer going free, a family in despair, or an innocent person losing his life.

Yet, those that appeal to "justice" in the jury room do not escape from the jury's dilemma unscathed. One person's freedom fighter is another person's terrorist. In the same way, one person's "justice" is another person's "injustice." History, biology, faith, nationality, chemical make-up, and a host of other factors produce the highly complicated and unpredictable being that is human. It can be argued that to impose a notion of "justice" in the jury room outside of the application of the law is to impose a small group's view of the world on the legal system and subsequently, on society at large. (15)

Theory and words in the abstract often decrease the intensity of the real world implications of the jury's dilemma. In order to flesh out the jury's purpose, this article next explores two dramatically different jury trials. The first trial explores the issues inherent in upholding the "law" while the second trial gives a glimpse into the way "justice" is administered.

A. Letter of the Law

In August 1998, two NYPD patrolmen kicked in a door to a small dark studio apartment. Before them, lay the naked six-foot body of a two-hundred pound African-American male. A multitude of stab wounds (twenty altogether) along the right side of the victim's spine, neck, and head enabled the police officers to conclude from the doorway that the man was definitely dead.

The story is brief. Two men are in a room, and one man stabs the other, first in the chest, then in the back, many times. The stabber says he acted in self-defense. There are no witnesses. The defendant claimed that when he went into the room with the victim, he believed the victim was an attractive woman who wanted to have sex with him. In fact, he says it was only when they both undressed that he discovered that his date was a man who aimed to rape him. Prevented from fleeing the room, pressed to the floor, grappling for his clothes and the exit, the defendant took a pocketknife from the pocket of his overalls, opened it and stabbed the attacker. However, the prosecution identified witnesses who testified that the victim and the defendant were lovers. In addition, the prosecution introduced evidence of the defendant's murder confession.

After the prosecution and defense presented their cases in chief, the deliberations unfolded. According to one of the jurors, "[o]n the first day we went around the room and people said whatever they wanted about the case. That taught us two things: first, that we didn't agree; and second, that there was a great deal of confusion about the different charges we had been asked to consider." (16) By the second day a straw poll indicated that a handful of the jurors wanted to find the defendant guilty of the most severe charge, and another handful voted for each of the lesser charges. With the room increasingly polarized, compromise began to emerge as an option. One juror led the charge for compromise by asserting, "[w]hat I keep wanting here is for us to figure out some way to do justice, but I am starting to realize that the law itself may be a different thing. What is my real responsibility? The law? Or the just thing?" The juror, a female history professor, continued, "[w]e've been told that we have to uphold the law, but I don't understand what allegiance I have to the law. Doesn't the whole authority of the law rest on its claim to be our system of justice? So if the law isn't just, how can it have any force?" (17)

Just when the debate began to swing toward conviction, regardless of the fact that most people agreed in the plausibility of self-defense, another juror, "a born-again formerly crystal-meth-addicted ex-bull-riding rodeo cowboy," brought the deliberation back to the law. Juror 9 rose and said, "I've been listening ... to these things people are saying, and I have tried to pray about all this. Now I've decided what I have to do." Building momentum he continued, "I believe this young man did something very, very wrong in that room. But I also believe that nobody has asked me to play God. I've been asked to apply the law. Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful." (18) With those words, the tables were turned. Acquit before the law and leave justice to God. On the last day of deliberation, twelve index cards went out and came back, and they all came back reading "Not guilty."

B. A Call to Justice

In 1990, Imelda Marcos, the ex-first lady of the Philippines, was tried in the United States. The charges that were outlined in a ninety-page indictment involved her participation with her husband in looting the Philippine economy and stashing the money in secret Swiss bank accounts. Her actions were allegedly a crime in the U.S. because she had transferred some of her dirty money to U.S. Banks and spent some of it in New York.

In three months of testimony, the prosecution laid out an exhaustive case detailing the transfer of funds and the lavish spending. In fact, at midtrial the case against Imelda seemed so strong and well documented that courtroom reporters began speculating that she might cop a plea to stop the onslaught. In fact, "if the jury trial was just about the facts and the law and if the jurors were sifting the facts dispassionately, the government was winning, as even some members of the defense team believed." (19)

The prosecution seemed headed for a clean victory. When it came time to deliberate, however, the truth emerged that the jurors felt sorry for Ms. Marcos. As the jurors deliberated, it became clear that "the jurors' amazingly sympathetic views of the defendant seemed to fuel their suspicions that unseemly political motives might be present in the prosecution's case." (20) One of the jurors summed it up best, "[w]e argued facts ... but there was a lot of sympathy. There were a lot of bleeding hearts on that jury." (21) By the third and fourth day of deliberations most of the support for the prosecution evaporated, mainly because the jurors had no desire to punish Imelda Marcos.

Throughout the deliberations, one holdout, Alan Belovsky, remained. He had been excited about being a juror and had arguably taken the proceeding more seriously than anyone else. He had followed the testimony closely and argued with the other jurors through the use of the facts and evidence, but, as the days wore on, he became disillusioned and incensed that the other jurors were no longer listening to his arguments. It was a holiday weekend, and he wanted to go home. Ultimately, he voted for acquittal.

The jury forewoman crystallized the jury's decision-making best when she said, "[w]hat good would it have done to put her in jail? I thought, what do we want from her? She lost her husband, she lost her country, she lost her place. And for a woman like that, that's punishment. Why do we want to put the last nail in the coffin?" (22) In the end, the jury's verdict ironically fulfilled the closing argument of the legendary defense attorney, Gerry Spence, as he said, "[t]his is a case about our jury system. It is a case the whole world watches. It is a case in which the jury system will emerge victorious." (23) Whether the jury system emerged victorious depends upon whether you fall on the "law" or "justice" side of the jury debate.

II. Historical Roots

These real life examples of two distinct jury deliberations vividly portray the jury's dilemma. Further exploration of the historical roots of the jury system, from pre-colonial English custom to the vision of our founding fathers, assists in closing the divide between juries' conduct and their intended purpose.

A. Divine Intervention: Compurgation, Ordeals, and Battles

In a recent jury trial, the jurors were treated to a preparatory video narrated by Ed Bradley and Diane Sawyer. The screen showed:
   A memorable flashback to the dark days
   of trial by ordeal as ... a knot of
   stringy-haired plebes, smirched and
   scrofulous, dragged a bound man
   through the woods and cast him into a
   deep lake. A papist factotum solemnly
   made the sign of the cross over the
   disappearance of the accused ... he
   would be found innocent if he did not
   resurface. (24)


Before the advent of the jury trial, disputes in England were handled in just such a manner; according to the dictates of supernatural intervention. These adjudicatory measures came in the form of compurgation, ordeals, and battles.

Through compurgation, the accuser and accused swore oaths, aided by compurgators who were enlisted on their behalf to vouch for the oaths. The number of oathhelpers needed, depended on the gravity of the charge, but if the accused could assemble the required number of compurgators, he was acquitted. Compurgation fell from favor during the Middle Ages, "presumably because principals were allowed to select their own oathhelpers and people could often be found who did not fear godly retribution from false oaths." (25) Compurgation was formally abolished in England in 1833.

Proof by ordeal was the second means by which disputes were handled. Through ordeal by fire, the accused was required to pick up a red hot iron and "if he remained unharmed, it could only be because he had been protected by the Deity, who would protect only those who were blameless." (26) Similarly, in the ordeal of water, a person was plunged into a pool of water; if he sank it indicated that "God's pure water had accepted him, and he was not guilty. The 'innocent' then had to hope for the intervention of ordinary mortals to rescue him before drowning." Proof by ordeal also disappeared during the Middle Ages.

The third and by far more cinematographic method of dispute resolution was the trial by battle. "An accused could plead not guilty by throwing down a glove and declaring that he would physically defend himself against the charge." (27) If the accuser chose pursue the accusation, then he picked up the glove, and they chose weapons. If the accused were vanquished or killed, then God was assumed to have pre-ordained the result, and the loser was adjudged guilty. If the accused won or if he simply kept the fight going from dawn until dusk, he was acquitted. The battle system would later become corrupted when accuser and accused where allowed to choose representatives to replace them, and "professional battlers" came into existence.

B. Human Involvement: The Jury Trial

By the thirteenth century, as the limitations of these earlier methods of adjudication were recognized, they were increasingly replaced by trial by jury, but in a different form than we are accustomed. "Early English jurors were not assembled to hear evidence or have information presented to them. Instead, they were brought together to render a verdict based on their own knowledge." (28) The reasoning was simple. In small, intertwined communities, local jurors knew the disputants and the ensuing disputes in the area, and these locals formed juries with the requisite knowledge to adjudicate matters.

Over time, these early juries transformed from bodies deciding solely on the basis of their own knowledge to ones that heard witnesses and rendered verdicts based on evaluations of what those witnesses said. With this change, "a crucial feature of the modern jury was born. Juries were no longer selected for what they already knew of the conflict, but on the promise of assumption that they would impartially evaluate the information provided them at trial." (29) An early example, and arguably, the most important case in Britain to test this new notion of a jury trial were the trials of Alexander Murray and William Owen.

1. The Trials of Alexander Murray and William Owen

In 1751, a closely-contested Parliamentary election occurred in the borough of Westminster. Alexander Murray claimed that Peter Leigh, as High Bailiff of Westminster, had smuggled the election for Granville Gower. On November 20, 1751, the House of Commons adopted a resolution charging Murray with contempt, found him guilty, directed him to be committed to Newgate Prison, and ordered him to appear before the Bar of the House of Commons to receive his sentence. Shortly thereafter, an anonymous pamphlet appeared on the streets of London alleging that these quasi-judicial proceedings before the Bar of the House of Commons were "an open violation of the Constitution [and] manifestly founded in oppression and injustice." (30) In a stirring finale, the pamphlet exclaimed:
   What shall distinguish Britons from
   those who groan under the most
   arbitrary governments, if subject to the
   like tyrannical acts of oppression? And
   what shall defend a free people
   whenever their representatives shall
   think fit to constitute themselves their
   judges, and wantonly inflict the severest
   pains and penalties by virtue of their
   mere will and pleasure? ... Though the
   law of the land has provided that every
   subject shall be tried by his jury, have
   we not seen the House of Commons
   uniting the three inconsistent capacities
   of judge, jury, and prosecutor? (31)


A complaint was soon lodged against this pamphlet, however because the author was unknown. The House directed the Attorney General to prosecute the printer, William Owen. The Attorney General and the Solicitor General argued that the pamphlet was scandalous and that the only question of fact was whether Owen had published it. The defense attorney asserted that Mr. Owen was merely the printer and that the prosecution had failed to prove the necessary malicious intent. The "impartial judge" indicated that he thought that the jury ought to find the defendant guilty.

On July 6, 1752, "twelve honest, impartial, law-abiding Englishmen, each in turn slowly filled out of their jury box and into the pages of judicial history." (32) On that day, those twelve men went against the rule that juries were to impartially evaluate the information provided them at trial and had the "courage to stand up to the awesome authority of an omnipotent House of Commons and the dictatorial arrogance of an ermine-robed Chief Justice of England and find William Owen not guilty of seditious libel." (33)

2. The Trial of Gideon Henfield

Britain was not alone in experiencing the unpredictable affects of the jury system. The newly independent United States of America quickly tasted the power and purpose of the jury through the trial of Gideon Henfield.

Following the French Revolution of 1789, a public war broke out between France and England in January of 1793. In April 1793, President Washington passed the Neutrality Proclamation, in which he warned the citizens of the United States, "carefully to avoid all acts and proceedings inconsistent with such neutrality and directed federal authorities to prosecute anyone committing, aiding, or abetting hostilities against any of the said powers." (34)

Unaware of this Proclamation, Gideon Henfield set sail from Charleston, South Carolina to Philadelphia. Upon his travel, he encountered Citizen Genet, a French privateer, commissioned by the French Republic. The captain promised him the berth of prize master on board the first prize they should capture. On May 5th, they captured the ship Williams that belonged to British subjects, and Gideon Henfield was put aboard her as prize-master.

Upon learning of this capture, the British accused the United States of violating its own Neutrality Proclamation. In response, the Secretary of State, Thomas Jefferson, wrote to federal prosecutor William Rawle and informed him that the men that violated the Neutrality Proclamation should be apprehended. In July 1793, Gideon Henfield was indicted for violating the laws of nations. In his defense, Gideon Henfield declared, "if he had known it to be contrary to the President's Proclamation, or even the wishes of the President, for whom he had the greatest respect, he would not have entered on board." (35)

After the prosecution and defense presented their cases in chief, the three-judge panel addressed the jury:
   This is, Gentlemen of the jury, a case of
   the first importance. Upon your verdict
   the interest of four million of your
   fellow citizens may be said to depend.
   It is your duty ... to do only what is
   right ... [and] it is the joint and
   unanimous opinion of the Court, that the
   United States, being in a state of
   neutrality relative to the present war, the
   acts of hostility committed by Gideon
   Henfield are on offense against this
   country, and punishable. (36)


With such a strong admonition for guilt by the esteemed three-judge panel, and with President George Washington, Secretary of State Thomas Jefferson, Chief Justice John Jay, and Attorney General Edmund Randolph pushing for conviction, it seemed as if Gideon Henfield was destined for incarceration. Yet, upon deliberation, the twelve men of the jury decided that Gideon Henfield was not guilty.

C. Following the Dictates of the Judiciary: The Court's Right to Determine the Law

As the immediately preceding cases show, the early jury system often reached results with justice in mind. In doing so, juries sometimes had the luxury of determining the law. In 1794, the Supreme Court of the United States formally recognized the juries' right to determine the law. In Georgia v. Brailsford, the Supreme Court presided over a jury trial in which Chief Justice John Jay told the jurors:
   On this, and on every other occasion,
   however, we have no doubt, you will
   pay that respect, which is due to the
   opinion of the court: for as on the one
   hand, it is presumed, that juries are the
   best judges of fact; it is on the other
   hand, presumable, that the court are the
   best judges of the law. But still both
   objects are lawfully within your power
   of decision. (37)


This statement was an impressive show of deference to the jury system by a newly minted country. Unsurprisingly, this exercise in autonomy by juries was subsequently curtailed. Before the Brailsford case, in fact, soon after the formation of the country, judges sought to restrict the jury's power to determine the law in making their decisions. These actions were a result of the judiciary and the legal establishment becoming more professional. "Judges became convinced that they knew the law better than the jury [and] may also have come to fear what they perceived as populist tendencies of jurors." (38) This judicial need to control the jury became even more pressing as "increased immigration and expanding jury rolls brought a greater social division between judges and jurors." (39)

Ultimately, judges began requiring juries to decide cases on the law as defined by the judges. The judges' role evolved to instruct the jury on the legal principles already established and guide the jury in bringing forth a verdict consistent with these principles. This shift in the juries' power, or at least tightening of the screws--from determining the law to becoming confined within the judges' definition of the law--was established by 1895. In Sparf and Hansen v. United States, a criminal trial for murder on the high seas, the jury sought to charge the defendant with manslaughter rather than murder. The trial court gave an instruction requiring the jury to follow the law that it receives from the court. On appeal, the defense counsel argued that the jury had the authority to determine the law in a criminal case. The Supreme Court rejected this position and held that the jury had to follow the law given by the court. In a swift about face to Georgia v. Brailsford, Justice John Harlan concluded:
   Upon the court rests the responsibility
   of declaring the law; upon the jury, the
   responsibility of applying the law so
   declared to the facts as they, upon their
   conscience, believe them to be. Under
   any other system, the courts, although
   established in order to declare the law,
   would for every practical purpose be
   eliminated from our system of
   government as instrumentalities devised
   for the protection equally of society and
   of individuals in their essential rights.
   When that occurs our government will
   cease to be a government of laws, and
   become a government of men. Liberty
   regulated by law is the underlying
   principles of our institutions. (40)


How did this power shift out of the hands of the jury? By some accounts, the need for juries to act as a check on politically repressive and overly harsh laws declined or disappeared with the adoption of increasingly just laws. According to Professor Jonakait:
   Americans no longer had unjust laws
   foisted on them by a foreign power
   across the sea. American legislators
   were elected by the people ... The
   Revolutionary power of the musket had
   given way to the electoral power of the
   ballot. The intervening power of the
   jury was considered to be less
   imperative, now that Americans were
   free to vote the rascals out. (41)


Yet, even after this admonition to juries, American juries continued to react against American law when it was perceived as unjust.

III. Making Sense of It All: How Law is Obeyed and Justice Prevails

A typical copy of a jury instruction includes the important admonition that to "base your decision on the facts and the law." (42) Yet, in the preceding cases and historically, many juries made their decisions independently of the facts and the law. In a recent case, a judge instructed the jury that, "the very object of our jury system is to secure a verdict by comparison of views and discussion among jurors themselves, provided this can be done reasonably and in a way that is consistent with the conscientious convictions of the several jurors." (43) When a jury deviates from the law, what do they base their decision on and why? More importantly, should we allow this freedom? It seems that the times in which juries deviate from the law are exactly the instances in which the jury system has historically approved. In deviating from the law, the jury system asserts the right to protect the public from state tyranny and to enforce the will of the people.

A. Check on Tyranny of the State

The common men who decided the trial of William Owen came together for a day to listen to evidence and render an impartial verdict. Yet, "they were then, as countless American juries are today, the very essence of justice, the voice of the people, the conscience of the community, the cornerstone of our judicial process." (44) In the same way, the men that decided that fate of Gideon Henfield lived up to the expectations of British Prime Minister Lord John Russel when he said in 1823:
   Many other cases might be mentioned,
   in which the verdicts of juries have
   operated to check the execution of a
   cruel or oppressive law, and in the end
   to repeal or modify the law itself....
   Undoubtedly this is a very dangerous
   authority ... yet, exercised as it has
   been with temper and moderation, the
   discretion of juries has proved
   extremely salutary. It has been the
   cause of amending many bad laws
   which judges would have administered
   with exact severity, and defended with
   professional bigotry; and above all, it
   has this important and useful
   consequence, that laws totally repugnant
   to the feelings of the community for
   which they are made, cannot long
   exist. (45)


In the United States, "juries have many functions, and the right to a jury trial became a part of our Constitution to balance and check the powers of governmental officials." (46) Indeed, English colonists brought the concept of jury trials to America, and every colony provided a right to jury trials. In fact, the very foundation of the United States is based on this right to a jury trial for the very reason that it was seen as a check on the crown. This concept was clearly spelled out in the Declaration of Independence, in that it ultimately protested that the king was "depriving us in many cases, of the benefits of Trial by Jury." (47)

Today, courts echo this function of the jury. According to the Supreme Court in Duncan v. Louisiana, the "widespread use of jury trials reflects a profound judgment about the way in which law should be enforced and justice administered. A right to a jury trial is granted to criminal defendants in order to prevent oppression by the Government." (48) The Court continued, "[p]roviding an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." (49)

The government's power to bring charges is extensive. "The jury's absolute authority to acquit acts as a check on this discretion." When the jury refuses to apply the criminal law in a particular case, the jury, in essence, is using its power to find that the prosecutor should not have used his discretionary power to bring the case. "The jury's absolute power to acquit also acts as a safety valve for and a check on legislatures." (50) Therefore, the jury has the power to personalize an otherwise broad and rigid statute, as illustrated by colonial juries when they acquitted citizens in response to British attempts to enforce what the jury perceived as unjust tax, trade, and seditious libel laws.

When a jury acts outside the law, history usually nods in agreement because the jury is fulfilling its role of restricting the overpowering force of the state upon the people.

B. Will of the People

When the United States was founded, juries were not required to apply the law as the judge gave it to them; instead they could define it for themselves. Thus the juries decided the law, as well as the facts. "This power predated the Constitution, acting as a check on unjust colonial laws and royally appointed judges." Juries could not "serve as a bulwark against oppression if they had to follow an oppressive judge's instructions about the law." (51) Yet, in addition to acting as a check on the power of the state, practical reasons also compelled juries to decide cases with their own interpretation of the law. In many trials, more than one judge presided, and each judge instructed the jury with his views of the applicable law. This practice was exacerbated by the fact that few judges had formal legal training, and so early Americans believed that the law emerged naturally from the common sense and conscience that everyone possessed rather than as a learned skill that took years to study and understand. This early belief that juries were to apply their own conscience took root and served as a means for jurors to express their will. In modern times, this idea has remained with the jury. In the present sense, commentators point out that the "jury is one of the last refuges for the common person in having an input into the elite-dominated judicial process." Through the jury, "a collection of citizens speak on behalf of the community during judicial proceedings." (52)

There is a definite drawback to the jury system as a means of democracy and that is encompassed in the decision-making process. Some authors raise concerns "about whether juries have access to sufficient and appropriate information and whether jurors are competent to make good policy-shaping decisions." (53) The imperfect answer to this critique posits that the jury system may provide a flawed form for deciding public policy issues, "but given that other policymaking institutions are flawed, do the jury's flaws justify removing its traditional authority over legal decisions and thereby diminishing the application of democratic decision making within the judicial branch?" (54)

Jury critics also argue against a jury system that is viewed as portraying the will of the people. They argue that the jury system is unique in that it lacks accountability. Accordingly, this accountability "is a further indication of what they see as the irrationality of a system which permits verdicts to be reached by lay people who lack the benefit of any forensic training." (55) The flip side is that this lack of accountability by the jury system is in itself a strength; for it gets past the "structures of authority ... defined by a body of nonprofessional decision makers, organized into a single level of authority [that] makes decisions by applying undifferentiated community standards." (56)

In the end, whether the jury should have the right to go outside the bounds of the law in order to extrapolate the will of the people in the community as represented by the jurors is contentious. But what is certain is that history has shown that where men have tried to restrict the reach of the jury, the jury has pushed back. While the law says that juries have a specific role and responsibility unique from that of the courts, the legislature, and the executive branch, the men and women who make up the jury take it upon themselves to assert their own voice in the democratic process. This is reassuring news to anyone unfortunate enough to be cast in the net of the law.

III. Conclusion

Robert Frost once said that a "jury consists of twelve persons chosen to decide who has the better lawyer." (57) During the 1880's, Matthew Deady echoed this sentiment when he commented on the kind of jury trials to which the United States was drifting toward, as, "a gross travesty of that known to the fathers ... The trial is converted into a mere game of skill ... in which the chance is largely in favor of the better, if not the sharper, player, without much reference to the law or the justice of the case." (58) These statements pigeonhole the jury as an empty vessel of simpletons that can be manipulated, but the rich history behind the American jury system tells otherwise.

Juries' roles initially were to portray the community's sense of outrage or mercy. As time passed, rules of impartiality and testimonial evidence pushed the jury system to seek an independent decision outside of the dictates of personal or emotional appeals. Yet, juries still asserted a proactive role in the decision-making process by deciding the law. When the courts pushed back and held that the law should be established by judges, the jury system stretched and when the facts called for a decision outside of the law, juries acted accordingly. In effect, the jury system has been tugging, pushing, pulling, and grappling with its very own purpose from the beginning, regardless of legislative or judicial directives.

If the Supreme Court says that juries must apply the law as judges direct, then there is no point in waxing on about how the jury system once functioned or focusing on glitches in the system when the jury goes outside the law. Americans want laws that are clear, men and women who are predictable, and justice that is perfect, but this simplification loses sight of what is important. By researching the roots of our jury system, we recognize that our history is not clean and clear. Our history of colonialism, revolution, and democracy, is one littered in messy, imperfect, and driven people and events. It is a history of greatness and of power. And as power can bring great benefits to those who wield it, it can also corrupt, and absolute power as held by the president, legislature, and judges, can corrupt absolutely. Viewing our jury system from inception we can acknowledge, celebrate, and breathe a sigh of relief in the great purpose of our jury as society's final check on the power of government.

(1) D. Graham Burnett, Anatomy of a Verdict. The View From a Juror's Chair, N.Y. TIMES MAGAZINE, August 26, 2001, at 30.

(2) U. S. CONST., amend. VI; See also Randolph N. Jonakait, The American Jury System 2 (2003); See also Colleen P. Murphy, The Narrowing of The Entitlement to Criminal Jury Trial, 1997 WIS. L. REV. 133 (1997); Peter J. Richards, The Discreet Charm Of The Mixed Jury: The Epistemology Of Jury Selection And The Perils Of Post-Modernism, 26 Seattle U. L. Rev. 445, 446 (2003).

(3) American Bar Association, at http://www.aba news.org; But see Amy Powell, Three Angry Men: Juries In International Criminal Adjudication, 79 N.Y.U.L. REV. 2341 (2004).

(4) http://www.abanews.org/docs.

(5) American Bar Association: The American Jury Initiative, at http://www.abanet.org/jury/home.

(6) American Bar Association: The American Jury Initiative, available at http://www.abanet.org/ juryprojectstandards/principles.pdf. See also Terry Carter, Jury Trial: Grey, Sandra Day O'Connor Kick Off ABA Program For Changes in Jury System, 3 No. 48 A.B.A. J.E. REP. 6 (December 10, 2004).

(7) Carter, supra note 6.

(8) The disappearance of the criminal jury system is a major problem. Since 1980, the percentage of trials has decreased almost two-thirds. From 1980 to 1999, the frequency of federal jury trials fell from nearly 16 percent of all adjudications to just over 4 percent. Irwin H. Schwartz, Consequences of The Disappearing Criminal Jury Trial, 25 N.O.V. CHAMPION 7 (2001).

(9) The American Jury Initiative, supra note 6.

(10) The American Jury Initiative, supra note 6; See also John D. Jackson, Making Juries Accountable, 50 AM. J. COMP. L. 477 (2002).

(11) Jackson, supra note 10.

(12) The American Jury Initiative, supra note 6.

(13) Ved P. Nanda, Access to Justice in The United States, 46 AM. J. COMP. L. 503 (1998); See also U.S. Const. Preamble: "We the People of the United States, in Order to form a more perfect Union, establish Justice ..." (emphasis added).

(14) Jeffrey Cole, My Afternoon with Alex: An Interview with Judge Kozinski, 30 LITIG. 1, 10 (2004), available at http://www.abanet.org/ litigation/journal/summer2004/home.

(15) See e.g., James Curry Woods, The Third Tower: The Effect of The September 11th Terrorist Attacks on The American Jury System, 55 ALA. L. REV. 209, 214 (2003).

(16) Burnett, supra note 1, at 35.

(17) Burnett, supra note 1, at 38.

(18) Burnett, supra note 1, at 50.

(19) See S. ADLER, THE JURY: TRIAL AND ERROR IN THE AMERICAN COURTROOM 63, 69 (1994).

(20) Id. at 71.

(21) Id. at 75.

(22) See Id. at 81.

(23) Id. at 72.

(24) Burnett, supra note 1, at 33.

(25) Jonakait, supra note 2, at 106.

(26) Jonakait, supra note 2, at 106.

(27) Jonakait, supra note 2, at 106.

(28) Jonakait, supra note 2, at 106.

(29) Jonakait, supra note 2, at 106.

(30) See J. KENDALL FEW, TRIAL BY JURY 289 (1993).

(31) Id.

(32) Id. at 293.

(33) Id.

(34) See Id. at 294; See also James D. Rice, The Criminal Trial Before and After the Lawyers'." Authority, Law, and Culture in Maryland Jury Trials, 1681-1837, 40 AM. J. LEGAL HIST. 455,455 (1996);

(35) See Few, supra note 30, at 297.

(36) See Few, supra note 30, at 294.

(37) 3 U.S. 1 (1794) cited in Jonakait, supra note 2, at 246.

(38) Jonakait, supra note 2, at 246.

(39) Jonakait, supra note 2, at 246.

(40) Jonakait, supra note 2, at 246.

(41) Jonakait, supra note 2, at 247, 254.

(42) Laurence H. Geller and Peter Hemenway, Last Chance for Justice 249 (1997); See generally Satisfying The "Appearance Of Justice": The Uses Of Apparent Impropriety In Constitutional Adjudication, 117 HARV. L. REV. 2708 (2004).

(43) SEYMOUR WISHMAN, ANATOMY OF A JURY 221 (1986). But see Cass R. Sunstein, Predictably Incoherent Judgments, 54 STAN. L. REV. 1153 (2002).

(44) Few, supra note 30, at 293.

(45) Few, supra note 30, at 298.

(46) Jonakait, supra note 2, at 18; Jeremy W. Barber, Note, The Jury is Still Out." The Role of Jury Science in the Modern American Courtroom, 31 AM. CRIM. L. REV. 1225, 1227-30 (1994).

(47) Jonakait, supra note 2, at 21.

(48) Duncan v. Louisiana, 391 U.S. 145, 155 (1968). See also Williams v. Florida, 399 U.S. 78, 100 (1970); Apodaca v. Oregon, 406 U.S. 404, 410 (1971).

(49) Duncan, 391 U.S. at 155.

(50) Jonakait, supra note 2, at 253.

(51) Jonakait, supra note 2, at 253.

(52) Christopher E. Smith, Imagery, Politics, and Jury Reform, 28 AKRON L. REV. 77, 79 (1994).

(53) Id. at 88.

(54) Id.

(55) Jackson, supra note 10, at 478.

(56) Jackson, supra note 10, at 477.

(57) Jonakait, supra note 2, at xxi.

(58) Jonakait, supra note 2, at xxi.

Juan Castaneda was born in Lima, Peru and immigrated to the United States when he was five years old. In 1998, he graduated from the University of California Santa Barbara with a degree in Business Economics, and in 2005, he graduated from Notre Dame Law School During law school, Mr. Castaneda served as the Editor-in-Chief of the Journal of Legislation. Currently, he is practicing law at Luce, Forward, Hamilton & Scripps in San Diego, California. This" article is a revised version of the article with which Mr. Castaneda won second place in the 2005 IADC Legal Writing Contest.
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