Democracy in the Courtroom

...Another person's life, figuratively and occasionally literally, is in one's hands...

...This is a troubling fact, yet one that I, inmy enthusiasm for jury trials, will (somewhat uneasily) ignore until the social scientists do the necessary comparative work to show me I am wrong...

...After the prosecution has finished questioning its witnesses, for example, he discusses the frequency and reliability of eyewitness testimony, pointing out, among other items, that men and women tend to notice different things...

...by one means or another a conclusion must be reached, and each j uror necessarily makes a contribution to it...

...Apparently just about everyone who has ever spent time closed up with a group of strangers wrestling over Rashomon-like testimony emerges from the experience eager to inform a none-too-receptive world...

...Anyone wishing to understand the current state of our knowledge of the jury system, including such controversial subjects as the insanity defense, should consult their volume...

...Both books conclude that the jury system basically works as it is supposed to, that justice and democracy are served, and that while some reforms may make sense, the critics who wish to tamper with the foundations of the system or replace it outright with judge-based rulings are fundamentally misguided...

...Rather, it is the result of literally centuries of slow evolution," and, of course, itis still evolving...

...The weakest part of Judging the Jury is its failure to make comparisons across countries...

...Like Wishman, Hans and Vidmar rely to a large degree on The American Jury for their analysis (one of its authors, Hans Zeisel, has even written a Foreword for them), but they update its conclusions with the findings of research conducted over the past 20 years...

...His technique is to interrupt his narrative whenever it seems appropriate to provide background...

...If they have one theme, it is that the jury has always been in a state of flux...

...Hans and Vidmar cite estimates that 80 per cent of the world's jury trials take place in the United States, adding that "outside North America, the civil jury has all but disappeared...

...Jury rooms are heartwarming workshops of democracy, perhaps the places that come closest to fulfilling our egalitarian ideals...

...The former Harvard Law School dean who lamented that jury trials were "the apotheosis of the amateur" was right in his description, wrong to complain...

...Such innovations, the evidence indicates, improve jurors' comprehension...

...The conversation has turned to the subject of jury duty, and Yul Brynner cannot have played the King of Siam more times than I have recited my tale of the 11 -1 hung jury in which I was the single holdout for conviction...

...It is true in the sense that Wishman has at one time or another actually seen everything he relates...

...Hans and Vidmar, two social scientists, employ a more straightforward subject-by-subject approach...

...Where he is particularly enlightening is in suggesting how the process looks to the individuals involved, to judges fighting off boredom in an effort to concentrate on the proceedings, to defense attorneys trying to select a sympathetic jury in the face of conflicting theories, to lay people compelled to be the critical element in a mysterious structure they do not altogether fathom...

...A majority will cease discussion and outvote a minority only after reasoned discussion...

...Wishman, a criminal lawyer with a novel and an autobiography to his credit, uses a grisly murder case as the focus for his presentation...

...Similarly, the authors question the basis of two other Court decisions overturning the unanimity rule...

...Butasaboosterofthe system and thus something of a conservative when it comes to altering it, I am more skeptical about two other changes that, unfortunately, already seem to be under way...

...Writing in 1972 for the maj ority in allowing a 9-3 robbery conviction to stand, Justice Byron White declared: "We have no grounds for believing that maj ority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion and render a verdict...

...This method is rather creaky and contrived, but undeniably effective...

...Mock juries requiring unanimity, it was found, were more thorough in their deliberations than those allowed to operate by majority...

...Wishman is no scholar...

...In the world outside they would never have exchanged 10 words with one another...

...Hans and Vidmar strongly disagree...

...We normally wish to share unusually intense moments with others, and a jury deliberation is one of the most intense...

...Judging the Jury is less readable, yet more substantial and systematic...

...Citing investigations that have been done since these decisions were handed down, they insist the reduction in numbers can significantly affect the group dynamics during deliberations...

...Because most democracies employ other kinds of judicial systems, the link between trial by jury and popular government is not so strong as people like myself would like to imagine it is...

...All of the vast apparatus of law enforcement and the legal system has come to rest on one's shoulders...

...Anatomy of a Jury: The System on Trial (Times Books, 322 pp., $ 17.95) by Seymour Wishman and Judging the Jury (Plenum, 285 pp., $17.95) by Valerie P. Hans and Neil Vid-mar take different tacks to arrive at the same destination...

...The case featured m Anatomy of a Jury is a composite, though derived essentially from a single murder trial...

...In the business world we rarely get this kind of team effort...

...The book is eminently readable, and statistics on the number of people called for jury duty in New Jersey (137,000 in 1983-84) and the percentage of jurors who believe a defendant guilty until proven innocent (26) go down relatively painlessly...

...To many people who have served on juries, I suspect, these words will sound fatuous, and Hans and Vidmar note that they are not supported by recent research...

...history or data, expanding from his particular case into a general comment...

...Most of his concrete informationhe gleans from only one source, Kalvan and Zeisel's The A meri-can Jury, the classic study financed over several years by the Ford Foundation and published in 1966...

...Maybe that is how it works in the Supreme Court...

...When the jury went out to deliberate, he rushed across the street to have his stomach pumped by a medical team he had waiting for him...

...My two encounters with the judicial process have left me a firm and unabashed admirer of the system—those who attempt to avoid jury duty I consign to a circle of Hell only slightly higher than that reserved for income tax cheaters—so I am gratified that two new books report my personal impressions are supported by the scholarly evidence...

...In my experience—I have twice served on juries—people take this responsibility very seriously...

...I like to think my story amuses people, or contains some special insight, but the truth, I fear, is that jury duty brings out the boor in most of us...

...In 1970, the Supreme Court ruled that the standard 12-per-son jury was not Constitutionally necessary in criminal cases, and in 1973 it reached the same conclusion with regard to Federal civil cases, contending that the empirical research showed the use of six-person juries made " no discernible difference...

...I especially liked the one about the defense attorney who, during his summation, swallowed a half-empty bottle of alleged poison to prove that his client did not commit murder...

...At the very least, they convincingly argue that the scholarly studies relied on by the Justices to strike down a centuries-old tradition were flawed...

...Scientific" jury selection, with attorneys employing opinion polls, psychological profiles and other techniques of modern social science to mold a j ury predisposed to their arguments, began asrecentlyasl972...

...Note-taking by jurors may gain greater acceptance now that experiments with mock trials have shown the practice is not distracting, and in the future juries conceivably could be allowed, under carefully controlled circumstances, to ask questions...

...Deliberating is exhausting work that taps a great deal of emotional energy...

...The system, as Hans and Vidmar rightfully state, "should remain open to experimentation and modification, but those who would wish to curtail its powers or abolish it should bear the burden of proof...

...Wishman also has some good anecdotes to tell...

...Nor can a decision be evaded...

...Although a few jurors inevitably hang back, listening to the arguments of the more vocal without saying very much, most eagerly join in the discussions, raising questions, recalling facts and pieces of testimony relevant to the issue at hand, having their say...

...Both the jury-size and unanimity rulings have the potential to alter the jury system radically, as does a drive to eliminate juries altogether in civil cases, and it is disturbing that these decisions have been taken in the face of inadequate or contradictory evidence...

...It was not invented in any single time or place, nor has there ever been a golden age, a period we can point to when the system reached an ideal...

...Only in 1968 did the Federal government require the use of voting lists for panels...

...In the jury room they were equals, each possessing a vote and therefore obligated to try to persuade the other to his point of view...

...If that proof ever comes, it will probably arrive from overseas...

...The thing that struck me," says one of the jurors in the book who expressed my own feelings, "was the way 12 strangers were suddenly working together, each person adding a little bit, trying to figure out what happened, what was fair...

...I have observed a man every inch an investment banker engage in deep debate with a retired black bus driver...