October 25, 2024
The second panel of The George Washington Law Review’s Volume 93 Symposium, “The Survival of the Jury,” offered numerous insights into criminal juries. The panel featured Professor Akhil Reed Amar, the Sterling Professor of Law and Political Science at Yale Law School; Professor Carissa Byrne Hessick, the Anne Shea Ransdell and William Garland “Buck” Ransdell, Jr. Distinguished Professor of Law at the University of North Carolina School of Law; and Professor Anna Offit, Associate Professor of Law at the Southern Methodist University Dedman School of Law. The panel was moderated by Professor Paul Butler, the Albert Brick Professor in Law at Georgetown University Law Center.
Professor Offit focused her remarks on juror impartiality. Using Norway as a comparative example, Professor Offit offered an alternative conception of juror impartiality based on juror self-disclosure of conflicts of interest, mirroring the presumed impartiality of judges. Professor Offit observed that jury selection is often outcome-determinative, initiated by attorneys with agendas in their cases, and that the jury selection process collects a significant amount of information about each potential juror. Professor Offit questioned the assumptions within common ideas of juror impartiality, positing that individual jurors may have biases, but the jury itself is impartial. She also argued that partiality is an orientation that one can have but that it can be set aside, just as judges can, and that jury selection should err on the side of allowance. Professor Offit’s case study also examined mixed panels of lay and professional judges in both the first instance and appellate levels in Norway. Her research suggested that lay judges are viewed as peers despite their differences in training and are entitled to participation and dignity. Professor Offit also discussed how lay and professional judges in the case study benefited from each other’s experiences.
Professor Hessick discussed her research on the prevalence of guilty pleas amidst the right to a jury in five common law jurisdictions: the United States, England and Wales, Scotland, Australia, and New Zealand. Professor Hessick observed that jury trials are seen as key common law institutions in all five jurisdictions, but differ formalistically, from incorporation in written constitutions to existence in tradition alone. She reviewed the common statutory incentives enabling guilty pleas, such as treating admission of guilt as less culpable than conviction and, therefore, deserving a reduced sentence. Professor Hessick also examined the ability of prosecutors to indirectly impact sentencing through charge bargaining, sentence bargaining, and fact bargaining. Even though the incentives appeared to be common to each of the five jurisdictions, Professor Hessick found variation across the jurisdictions in the number of guilty pleas, although all jurisdictions’ numbers were low. Professor Hessick finally described how systems talk about plea bargaining. She detailed overlapping justifications about the key role juries play and how too many trials would limit the bandwidth of courts.
Professor Amar reflected on his article Reinventing Juries: Ten Suggested Reforms.1 Professor Amar analogized the jury to other parts of the representative democratic system to inform reforms, such as removing the unanimity requirement, increasing jury pay, preselection of preferred weeks for jury service, and curtailing peremptory strikes. Professor Amar compared jurors to legislators, with juries voting and making policy interstitially, not just finding facts but rendering moral judgments of reasonableness and culpability. Professor Amar decried hung juries, arguing that an 11-1 hung jury followed by a retrial and conviction is not actually unanimous because the first eleven votes for acquittal were uncounted. Professor Amar agreed with Professor Offit’s presentation on reducing juror recusal, remarking that the representativeness of the Jury is the whole, not its parts. Professor Amar observed that he is always struck from jury service, often because he knows the lawyers involved. “Well, so do you, Your Honor!” he exclaimed, asking, “Why shouldn’t I ding you? I pay your damn salary!” This last remark received significant laughter from the audience, most notably from Chief Judge Jennifer Walker Elrod. Professor Amar further argued that juries are critical for republican self-government and are not solely about the parties, and that the decline of jury service is related to democratic backsliding. Professor Amar noted that the case or controversy requirement for jurisdiction makes it hard for judges to create the whole package of reforms, and advocated for Brandeisian states, as laboratories of democracy, to enact reforms, which could be opt-in for defendants.
Beginning the question segment, Professor Butler observed that several of the panelists’ proposed reforms would remove protections for defendants, such as peremptory strikes and jury unanimity, which help defendants buy into the process and legitimize the outcome. Professor Amar was open to asymmetric rules and suggested that prosecutorial peremptory strikes could be removed unilaterally; he reemphasized that unanimity after a hung jury is an optical illusion because the first jury isn’t counted. Professor Offit concurred and questioned whether some cause challenges, such as juror hardship, were codes for poverty and what incentives could mitigate this.
The next question discussed how plea discounts can be considered “trial penalties” and whether jurisdictions recognize the tension between the civic ideal of the jury trial and disincentivizing trials through lower sentences. Professor Hessick observed from her research that academics, government officials, and judges are conscious about abandoning a due process model of justice versus an efficiency-centric managerial model of justice. Professor Amar noted the societal benefits of jury trials and that the economic cost is worth the structural benefits.
Another question asked the panelists about the efficiency of the jury selection process. Professor Amar opined that curtailing peremptory strikes would significantly increase the speed of trials. Professor Offit discussed how lawyers are more conscientious and trial-averse when they believe the jury is representatively constituted. Professor Offit also noted that the baseline use of DMV records in jury selection impacts its potential representativeness. Professor Hessick was skeptical that trial length was a factor in the high number of guilty pleas, noting that guilty pleas took off when trials were very short and were entrenched by the time trials lengthened.
Professor Butler noted that Professor Amar’s assertion linking the decline in jury trials to a decline in democratic institutions was provocative. Professor Amar argued that the size and diversity of the country require more societal glue, which can be provided by jury service; he noted that jurors often come away from service less skeptical of governmental institutions because they participated in one such institution. Professor Hessick observed that other jurisdictions believe that the American criminal justice system is too democratic, from elected judges and prosecutors to legislative races featuring crime as an issue. Professor Offit argued that social inequality is a common thread between the two topics; jurors in the United States serve as a check on the socially elite federal judiciary, but the cost of jury participation creates entrance barriers.
Judge Bibas asked Professor Hessick about cultural factors impacting the number of trials across jurisdictions. Professor Hessick noted institutional differences across jurisdictions, such as American lawyers seeing their job as involving dealmaking, while New Zealand defense lawyers she interacted with viewed their job as obtaining acquittals. Another question challenged certain representations made to jurors, such as instructions requiring convictions if jurors make a particular fact-finding. Professor Amar agreed that this phrasing presented major due process issues.
This summary was authored by Benjamin Heidloff, Member.