The US Jury System: of, by, and For the People, but Does It Work?

MOST Americans have an almost mystical faith in trial by jury. They regard the jury as a vital buffer against government power over individuals, and they believe that ordinary men and women, using common sense, can reliably dispense sound homespun justice.

As many people know from experience, the jury system often produces results that are generally accepted as fair.

But society sometimes calls upon jurors to perform complex tasks for which they have no proven aptitude and no training except life experience. In some cases, the system isn't up to the difficult jobs meted out to it.

In fact, a lot of jurors are ``generally botching the job,'' reports Stephen J. Adler, an editor with the Wall Street Journal, in ``The Jury: Trial and Error in the American Courtroom.'' Adler's dour conclusion is based on in-depth studies of six trials, including extensive posttrial interviews with many of the jurors.

Another observer of the jury system also sees ``a crisis of confidence in the quality and accuracy of jury verdicts.'' Like Adler, lawyer and political scientist Jeffrey Abramson, author of ``We, the Jury: The Jury System and the Ideal of Democracy,'' thinks that problems in the jury system have implications beyond the results in individual cases. Such problems, he says, erode public trust in law and in democracy itself.

``Nearly every other nation has shunned the jury,'' Adler observes. Yet both Adler and Abramson believe that the jury system, for all its troubles, is worth preserving.

``In a democracy, the legitimacy of the law depends on acceptance by the people,'' Abramson writes. ``And the jury today remains our best tool for ensuring that the law is being applied in a way that wins the people's consent.''

Both writers propose reforms that, they contend, will preserve the jury system as an integral and trusted feature of government of, by, and for the people.

For his microscopic study, Adler selected trials that, in his view, typify the problems juries encounter and illustrate particular weaknesses in the system. In one of the trials, a death-penalty case in Texas that he holds up as a model, Adler concludes that the jurors performed their duty conscientiously and responsibly.

But in the other five trials he scrutinizes, Adler believes that the process fell short because it produced results that were inconsistent with the evidence.

Sometimes, he says, the fault lay with the jurors themselves, like those who acquitted Imelda Marcos, the former first lady of the Philippines, of looting her country because they were swayed by her glamour and weepy widowhood; or the New Jersey jurors who, freeing a man who killed his estranged wife's lover, accepted an implausible claim of self-defense.

In other cases, Adler lays the responsibility for what he regards as dubious trial outcomes on the system - a system that, for example, required six high-school-educated, and totally befuddled, jurors in North Carolina to resolve complex economic issues in an antitrust battle.

Notwithstanding his carefully reported accounts of jury ineptitude, however, Adler rejects ``a dispiriting trend toward making jurors less harmful by limiting their power to go wrong.'' Instead, he favors ``making them more useful and effective by giving them the tools to do right.''

Among the reforms the author advocates are clearer jury instructions from judges, and allowing jurors both to take notes and, through the judge, to question witnesses. He shows how such reforms already are bearing fruit in the ``juror-centric courtroom'' of an innovative judge in Arizona.

In his more scholarly but still very readable book, Abramson, a professor of politics at Brandeis University in Waltham, Mass., applauds the ``democratization of jury selection'' that has eliminated much of the discrimination against women, blacks, and other minorities. Yet he is worried that juries increasingly will behave as representative bodies, where jurors vote as members of groups, rather than as deliberative bodies. A drift away from the deliberative jury model will undermine a unifying element of American democracy, Abramson says.

Despite their different perspectives, Adler's and Abramson's concerns intersect at various points. Both support policies making it harder for people to duck out of jury duty. And both criticize judges (such as those worried about the effects of pretrial publicity) who equate potential jurors' ignorance with impartiality. This tendency ``naively defines an impartial mind as an empty mind,'' Abramson writes.

The writers also share a desire to banish peremptory, or discretionary, challenges in jury selection. Abramson believes that peremptory challenges further discrimination and are inconsistent with what he calls the ``cross-sectional ideal'' of jury makeup.

Moreover, Adler says, lawyers often use peremptory challenges not just to remove biased jurors, but rather to get rid of the best-qualified jurors ``precisely because they would be fair and thoughtful decisionmakers.''

At a time when a broad stirring for jury reform is being felt in the United States, these two books contribute significantly to public understanding of the issues.

* James Andrews is on the Monitor staff.

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