Juries - No Longer Up To The Task?

Some excerpts, from the NY Times

Personally I’m kind of sympathetic to the notion that as legal cases hinge on increasingly complicated laws (which juries don’t interpret, but have to understand) and scientific testimony, the jury may indeed be overwhelmed. Perhaps even more significantly, the juries are typically inexperienced in the legal process itself, and are easier for lawyers to play up to - something that would be harder to pull off with a judge, who has seen a whole lot more, and can see through courtroom tactics better. OTOH, there’s something to be said for regular citizens giving their judgement. In particular, it’s a defense of sorts against government tyranny, or at least overreaching - a judge may be too close to the political process to be an effective defense against this.

But its hard to draw a clear-cut line about this. Something to consider.

I think it might be helpful to split this question into two subtopics, since the considerations are quite different for criminal and civil trials. I’m open to reasonable limitations on jury trials in the civil context, even though very, very few lawsuits ever reach trial in the first place.

But under no circumstances would I ever limit a criminal defendant’s right to a trial by jury. That’s a fundamental protection that stands between the citizen and the government. Without criminal juries, it would be the government itself that makes all decisions about our freedom. I realize that this is rarely a serious concern in the U.S., but allowing the government itself to make those decisions is a necessary prerequisite to tyranny. See, e.g., China, Iran, Afghanistan. I’ll take the occasional O.J. verdict to prevent the government from assuming that unrestricted power over our lives.

Let’s assume that juries are not up to the task.

What next?

Interesting article in the OP’s link. Some statements that especially caught my eye:

At the heart of the trend, some experts say, are fundamental questions about whether jurors who return huge awards and sometimes clear people who seem to be guilty are up to the task that has been assigned to them for centuries.

Of course, some other experts say that complaints about “huge awards” are largely exaggerated in order to garner support for “tort reform” measures that limit the restitution available to injured parties and garner savings for insurers and other businesses—savings that in fact are seldom passed on to consumers. (In fact, punitive damages are awarded in less than 5% of civil jury cases.) But nobody seems to have bothered asking any of those experts for an opinion when writing this article.

*Because George W. Bush made what proponents call “reform” of the civil justice system a priority when he was governor of Texas[…] *

What opponents such as TexasWatch call it, of course, is something else again: something that the NYT apparently felt didn’t need to be said.

Not everyone is critical of the trend limiting the role of juries. Some legal scholars, judges and business lawyers say that reining in juries is a necessity in an overloaded legal system. Others argue that juries must be controlled to limit excesses, and curb prejudices like hostility to big corporations.

Many “legal scholars, judges and business lawyers”, of course, argue precisely the opposite; but nobody seems to have felt it necessary to mention their position. The only people the article mentions as being “critical of the trend limiting the role of juries” are a couple of jurors.

In a new survey of 594 federal trial judges nationally, 27.4 percent said juries should decide fewer types of cases.

That is, slightly more than one-quarter of the judges surveyed agreed with what this article is trying to present as a “trend limiting the role of juries,” and they are the only ones whose views are mentioned. I’d be rather interested to know what the large majority who didn’t agree with it had to say, wouldn’t you?

Diminishing the authority of the civil jury: unfortunate necessity for the sake of judicial fairness because jurors are “no longer up to the task”, or smear campaign spearheaded by insurers and other business interests to limit their liability exposure? There are arguments on both sides, but you’d never know it from reading that New York Times article. And people still talk about the “liberal bias” of major news media—honestly, sometimes I just have to laugh.

Am I the only one reminded of this article?

Minty Green

Good point (about the difference between civil and criminal trials). I would point out that there is less to your statement that “very few lawsuits ever reach trial in the first place” than might seem. The main reason that so few cases reach trial is probably because they are settled out of court. The settlement terms are based on the understanding of what might happen if the case did go to trial. So to the extent that a jury is capable of producing a rediculous award, that capability is a factor even in cases where they don’t actually do so - the mere possiblity may cause the plaintiff to settle on unfavorable terms.


Can’t say for sure, but I imagine what would be next is even more of the same - more jury verdicts being overturned by judges, more limitations on which aspects of the case the jury rules on and the like.


Its hard to accuse the article of bias without knowing what the consensus of opinion in the legal field is. You note that only 27% of judges favor limiting the role of the jury, but this apparently means to limit them further than they already have been - it does not seem like they were asking about approval for the trend that has already taken place. (Also, the 27% might be compared against 73% who are ambivalent, these types of partial results can be confusing).

If you can show that there is a strong element among unbiased legal scholars that feels that the trend is wrong then you would be right that the article was remiss in leaving it out. But you’ve not done that. (And there’s no point in quoting people with axes to grind, e.g. trial lawyers and advocacy groups. This particular article quoted from no such people in favor of the trend - it was all judges and professors).

In any event, you seem to be questioning the assertion of a “trend” based on your picking apart the wrong statistic. What the Times used to justify their assertion are the following:

Kind of looks like a trend to me.

Juries are One Of Those Things that are obviously imperfect, but for which I have not heard of a better solution. minty’s points are spot on - you can’t take away a person’s right to a jury trial, because having government elected/appointed officials judging all criminal matters is not a good idea.

It’s my impression that the vast majority of cases are fairly clear-cut and the jury system works fine. And it seems to me that if the defense strategy is to get away with weird technicalities, they’d probably opt for a bench trial instead.

Juries can be influenced by things that are not material to the case, (for example, the very popular he’s a victim, not a criminal defense) that would never make it past a judge. I don’t think there’s any good way to solve this problem, without maybe severely changing what lawyers are allowed to say in front of the juries.

In short, I think the system we have has served us pretty wellfor a few hundred years; it would be nice if it was better, but I just don’t know how that would be done.

This reminds me of a live TV experiment conducted in England by a TV show called Tomorrows World. Basically they took ten minutes out of their regular show and showed the viewers a defendant and a judge objectively explaining the case (which was all totally circumstantial) against him. The viewers were then asked to phone in and say whether or not they thought the man was guilty. Here’s the catch. The Tomorrows world team didn’t show everyone the same defendant. They split the country into 2 groups, the north and the south and showed them each a different film where the case against the defendants was exactly the same but the defendants looked different. The film people in the North of England saw featured a handsome man in a nice clean suit who just had one of those innocent faces. The film people in the south saw featured a defendant who looked like the stereotypical thug, built like a brick shithouse, broken nose, eyes too close together and just generally mean and shifty looking.

The defendant in the north of England was found to be innocent with a mere 11% of people voting him to be guilty. The defendant in the south of England was found innocent as well but a whopping 42% of people voted for him to be guilty. The point of the experiment was to prove that Juries could also be prejudiced against someone who looked untrustworthy as they could be against people with more tangible physical features ie. skin colour. This kinda worries me as my friends have often joked how I look like the sort of person who old people cross the road to get away from, in other words, just like the southern defendant. Since then I’ve made an extra special effort to kep myself out of trouble.

Or maybe the people in the North are just less willing to assume guilt. Don’t you think that TV programs are a rather poor source of “scientific” knowledge?

It is true that the vast majority of civil cases never get to a jury, but the fact that a jury has been picked, and is sitting there in the jury box waiting for opening statements, is often extremely useful in getting BOTH sides to realize that maybe “truth” lies somewhere between “It’s all his fault” and “No, it’s all his fault.” In other words, though you may bluster to your loved ones that you’re gonna absolutely, definitely win the case hands down, there’s a moment when your lawyer sits down with you and says, “Okay, Ralph, just wanna point out a few things–it’s true that you injured yourself on his sharply pointed picket fence, but you WERE skateboarding after having two beers when you hit it…and HOW DO YOU THINK THE JURY WILL FEEL ABOUT THAT? Maybe we should accept the offer to cover your medical fees and settle this now.” I mean, the fact is, some people just CAN’T be objective about their situation until they look into the neutral faces of 6 to 12 of their fellow citizens and realize that they’ve been deliberately chosen NOT to be sympathetic to EITHER SIDE.

Incidentally, one thing that’s being tried in a number of jurisdictions is EXPANDING the role of the jury by letting jurors a) take notes during the trial and b) submit questions to the judge for the witnesses if the jury feels that neither side has presented key facts. The judge prevents improper questions from being answered, but usually lets clarifying questions on non-prejudicial topics get answered. Of course, this sometimes ALSO causes cases to settle before a verdict, as either the plaintiff or defendant takes a hint about how the jury is thinking.

I don’t have a cite, but this was covered in a relatively recent ABA Journal.

The problem of runaway juries is blown waaaaaaaayyyy out of proportion.

Why? Well, it’s just not big news when a jury returns a verdict in favor of the defendant, is it? Nor is it big news when a jury returns a verdict in an amount that is unconscionably small. For every plaintiff who gets a large newsworthy verdict, there are hundreds who get reasonable verdicts, or unreasonably small verdicts, or no jury award at all.

The insurance industry and its lobbyists play up those few big verdicts at every opportunity, the better to persuade voters and legislators that “juries are out of control,” and “it’s high time we pass some laws restricting jury verdicts.”

Beware the propaganda!

I want to pipe in with my support of what minty green said. The right to a jury trial for criminal cases is a very important part of a free society.

Now, when discussing civil trials, I think it’s important to distinguish among the various types of cases. Obviously, a lot of businesses would like to curtail jury trials since they fear being hit with a big judgment simply because the company is rich – whether their perception of the risk is correct or not. But I think there is more of a cry to curtail or eliminate juries for some highly technical issues such as patent or securities cases. The fear is that the issues might simply be too complex for the average member of a jury pool to truly understand.

I would be interested to see a further breakdown of opinions among people, and the judges, regarding use of juries for particular types of cases.

Are you suggesting Ryan that a result as significant as four times as many people in the South thinking the defendent guilty as in the North is due to regional bias?

You are kidding, right?

Either way, even if you do assume such a bias, it doesn’t change the implications one jot. The fact is that one group of people were much more likely to find one particular defendant guilty than another group of people with a different defendant even though all the facts and the way they were presented was the same.

That is a significant finding, no matter which way you cut it.


I don’t know if the issue of bias of the sort described by theVoiceofReason is such a big issue here. Not that it doesn’t exist - I’m sure it does. But I don’t see any reason to believe that judges are any more immune to this than anyone else. Unless you think that because of the greater exposure that judges have to all sorts of guilty and innocent defendents they are less likely to use incorrect stereotyping. I’m doubtful. For many crimes the accuracy of the stereotyping is not the problem - it’s the use of any stereotype at all.

Also, the percentage of huge awards is also relative. Meaning that the size of the huge awards might be so large that even a very small risk of incurring it might be enough to force a settlement. Also, one defence of the current laws that frequently comes up in discussions is “yeah, but the award was later reduced by the judge/on appeal”. This is a relevant argument if the discussion is about whether tort reform is needed, not if the discussion is about whether juries are up to the task.

Another point - I have long been under the impression that lawyers look to avoid having intelligent people on a jury. Reason being that they feel they can manipulate dumber people better. In fact, my recollection is that any lawyer in the pool will be objected to automatically. But I’m not sure if this is true.

What is true is that there is a “science” involved in picking the right jury. (High profile trials sometimes hire special consultants for this). I’m sure there is such a thing as the right judge as well, but it is generally hard to pick your choice in this matter.

It’s definitely an interesting finding, and certainly meshes with my impression that latent prejudice is a significant factor in juries decisions.

I just wouldn’t want to write a paper claiming prejudice based on this data. There are dozens of factors distinguishing the test group from the control group other than the appearance of the defendant. Slightly different cultures, rural vs. urban, the weather is different, the local news may have just shown a story about a swarthy looking fellow committing a crime. Was there a higher response rate in one location? How do you adjust for the people who couldn’t be bothered to call in? All of these and more are things that would have to be dealt with before this finding would be significant in the scientific sense of the word.

As for the elimination of juries, I am willing to listen to a discussion when it comes to civil trials. I think it would be a major mistake to eliminate them in criminal trials.

Guilty people not getting convicted is hardly the problem in this country. The inverse is much more likely to occur. (And, dammit, no I don’t have a cite for that. Just the opinion of my dad and others who have worked in the prosecutor’s office).

One other reason why juries are generally a good idea: (hold onto your hats, gang)–a group deliberating makes better decisions than an individual.

WHAT! I hear you cry. Okay, okay, but anyone who’s been through a management trainign exercise has played some variant of a “survival exercise” game. You get a hypothetical liefthreatening situation (stranded in desert, downed plane in sub-arctic Canada) and are asked to rate the importance to survival of a list of items.

Then you get asembled in groups and the group argues, often with great rancor and vehemence, about the importance of the items, and eventually produces a group ranking. (“The vodka is useless, it just makes you FEEl like you’re not freezing!” “Yeah, but it has SOME food value, and we can use it help start a fire!”)

Then you score the results, both for yourself as an individual, and for the group.

The surprise: Unless you have one totally dominant idiot, the group ALWAYS does better. A lot better. Significantly better than the best individual score in that group.

Why? Because the individuals in the group bring more information and viewpoints and experience to the table–and even the least talented members of the group usually contribute some fact or viewpoint that improves the group score in some way. See the video.

In a jury room, you get a similar multiplicity of backgrounds and experience. Despite the efforts of the adversarial lawyers to pick a jury that will be favorable to their client (plainiff, defendant, or state), that jury brings in twelve lifetimes of experience. I’ll take that any day of the week over one judge: if the judge is secretly bigoted or an idiot, there’s nobody (except an appellate court, SOMETIMES) who can say “Uh…not so fast…do you really think that’s fair?”

IzzyR: *If you can show that there is a strong element among unbiased legal scholars that feels that the trend is wrong then you would be right that the article was remiss in leaving it out. But you’ve not done that. (And there’s no point in quoting people with axes to grind, e.g. trial lawyers and advocacy groups. This particular article quoted from no such people in favor of the trend - it was all judges and professors). *

Um, not quite: one of the quotes I gave from the Times article specifically mentioned support from “legal scholars, judges, and business lawyers” for limiting the role of juries. Business lawyers are at least as interested in “grinding the ax” of restricting jury participation as trial lawyers are opposed to it.

But if only judges and professors will do, here are some cites indicating that most have a high level of confidence in the jury system:

Survey from Dallas Morning News

Professor Daniel Capra of Fordham University notes:

And Professor Herbert Kritzer of the University of Wisconsin remarks in his review of Civil Juries and the Politics of Reform by Stephen Daniels and Joanne Martin:

This is just a sample: a search on the names of well-known opponents of so-called “civil justice reform” like Daniels and Martin or Michael Rustad will turn up other examples. So yes, I think there is quite sufficient evidence to show that “there is a strong element among unbiased legal scholars that feels that the trend [of restricting jury participation] is wrong”.

In any event, you seem to be questioning the assertion of a “trend” based on your picking apart the wrong statistic. What the Times used to justify their assertion are the following:

Oh, I didn’t mean to imply that I was casting doubt on their figures, although I would appreciate cites of the actual published research that provided them. What I objected to was the fact that the article presented the opinions of professors and judges who believe that the trend towards restricting jury participation is justified and should continue, while remaining absolutely silent about the evidence that the vast majority of trial judges, as well as many respected legal scholars, seem to disagree with those opinions. The only people who were mentioned as unambiguously disagreeing with the trend towards “jury reform” were a few disgruntled jurors (although some individual jury verdicts were mentioned as having met with approval from the bench). That, IMHO, reflects a distinct bias, and not a liberal one.


Whereas it is true that the overall tone of the NYT article was markedly different than the sources you provide, I don’t think there is necessarily any difference in substance. I don’t see that the cites you provide and the NYT article contradict each other. Your cites are dealing with the prospect of future major restructuring of the jury system. The NYT dealt with past changes, and more minor ones.

The DMN article says that 9 in 10 judges say that the system need “minor tinkering at best”. "And that 98 percent of the judges surveyed said juries do at least “moderately well” in reaching a “just and fair” verdict. And 96 percent said they agree with jury verdicts most or all of the time. And nine of 10 judges responding said jurors show considerable understanding of legal issues involved in the cases they hear. […]

Only 1 percent of the judges who responded gave the jury system low marks. And only about 30 percent of the judges said fewer types of cases should be decided by juries." Nothing in there to contradict the idea that there has been a trend in the direction of lessening the jury’s role, which was caused by legitimate factors and concerns. (The last DMN statistic was actually quoted by the Times).

Your second source is discussing tort reform, and mentions juries only in passing.

Your third source links back to the SDMB homepage, so I couldn’t check it out. It is unclear what the claims and proposed solutions of the unnamed “Advocates of reform” are.

You are disagreeing with the NYT’s portrayal of a trend that “is justified and should continue”. Show someone who feels that the trend is unjustified. (The idea that the trend “should continue” is not expressed anywhere in the article. It appears that you are interpreting the NYT’s providing justification for the historical trend as an opinion that it “should continue”. If you show that someone feels that the trend is unjustified, it will provide a countervailing opinion to the article).