October 25, 2024
The George Washington Law Review’s Volume 93 Symposium concluded with a Q&A-style panel of judges moderated by Professor Renée Lettow Lerner of the George Washington University Law School. The panel consisted of state and federal judges: Chief Judge Penny S. Azcarate, Fairfax County Circuit Court; Judge Stephanos Bibas, U.S. Court of Appeals for the Third Circuit; Judge Jennifer Walker Elrod, U.S. Court of Appeals for the Fifth Circuit; Senior Judge Paul L. Friedman, United States District Court for the District of Columbia. Professor Lerner introduced the judges and considered the judicial perspective on the jury to be a vital feature of the event.
Professor Lerner first asked the judges to share why they believe juries are important. Judge Friedman responded that juries maintain the integrity of the democratic system by involving ordinary citizens in the process, bringing people of all backgrounds together. He commended the jury as a means to “enhancing the understanding and faith in the judicial system.”
Judge Elrod agreed and emphasized the importance of jurors as “co-judges” in a trial, noting that in Texas, juries can even ask questions. Building on Judge Friedman’s notion of this civic duty as critical to a healthy democracy, Judge Elrod stated that “it melts cynicism to actually participate in the process.”
Judge Bibas echoed this support for the jury as a mechanism to make politics more accessible and less abstract to the public, but he questioned whether juries are actually better for the parties.
Chief Judge Azcarate concluded that juries add a crucial element of transparency to the judiciary.
Professor Lerner next asked the judges what civil juries do well and what they do not do as well.
Judge Azcarate explained that juries often struggle when determining damages because they want a formula to apply, but no such standard paradigm exists. Similarly, Judge Bibas said that juries have difficulty with technical issues, such as patent cases. He stipulated that attorneys with minimal trial experience often fail to parse technical matters into language that “ordinary people” understand.
Judge Friedman maintained that while litigators still populate the legal profession, there are fewer experienced “trial lawyers” than in the past, describing the issue as a “vicious cycle.” As the number of trials decreases, the opportunity for lawyers to develop trial skills does too.
Judge Elrod critiqued jury charges for being too unwieldy for the average juror, given their length and various permutations.
In her next question, Professor Lerner asked the judges to comment on the positive and negative aspects of the jury in criminal cases.
Judge Azcarate commented on a unique challenge in Virginia, a jurisdiction where the jury can sentence defendants instead of the judge. Though a jury may receive a sentencing range, jurors otherwise have no guidelines or experience to rely on when sentencing.
In contrast, Judge Friedman said that juries have no power over sentencing at the federal level. Judge Bibas also weighed in on the issue of sentencing, criticizing mandatory minimums as problematic. Instead, he preferred the 18th-century approach whereby a jury could tailor the sentence to fit the case, acting as a partner to judges. Though Judge Elrod has not presided over a criminal jury trial, she felt the jury could share a role in sentencing. She also favored more criminal cases going to trial, fearing the current system encourages preemptive guilty pleas, even in the case of innocence.
Professor Lerner continued by drawing on the jury’s historic roots. She asked whether the judges agreed with English High Court judge James Fitzjames Stephen’s assertion that “the institution of trial by jury is so very pleasant to judges that they may probably be prejudiced in its favor.”1
Judge Azcarate affirmed this appreciation for the jury as an aid to redistribute some of her judicial burden. She can focus on the law rather than acting as the factfinder, thereby relieving some of the pressure of her duty. Judge Bibas suggested that in some contentious, high-profile cases, the jury acts as a “scapegoat” for the judiciary to escape possible public censure.
The discussion then turned to jury selection. Professor Lerner questioned how the judges felt about peremptory strikes of jurors. The judges generally agreed that the removal of peremptory strikes might make sense on the prosecutorial side. Judge Azcarate, however, underscored the importance of voir dire for the defense as an opportunity to start the narrative.
The judges then commented on the particular difficulties arising in high-profile cases involving politicians or celebrities and on the use of cameras to televise trials. Judge Azcarate, who presided over actor Johnny Depp’s lawsuit against his ex-wife, Amber Heard, cited several reasons for permitting cameras in her courtroom, such as guaranteeing ADA accommodations for a public trial. Judge Azcarate also acknowledged that television coverage made it harder to select an impartial jury who remained insulated from the media’s influence.
Judge Friedman discussed the challenges in politically charged cases, as he presided over many of the cases that followed the events of January 6, 2021. One of the questions used to screen jurors for political bias asked about the new sources they typically consulted: Fox? MSNBC? None? Judge Friedman discussed how videos circulated of the events of January 6 further complicated jury selection.
Professor Lerner next asked the judges to describe the most effective lawyering before a jury. Judge Azcarate and Judge Elrod both characterized it as “an art,” noting that a good trial attorney immediately starts weaving a narrative. Judge Friedman, welcoming the comparison to art, gave an example of a lawyer who had been “like a ballet dancer in court.” Judge Elrod also suggested that strong visual components are an effective aid for a jury.
Professor Lerner next questioned what should be done to address the decline of the jury trial.
Judge Bibas lamented that trials have become long, tiresome, and expensive. Consequently, some remedies might include reduced discovery in mid-size cases, fewer sidebars during trial, shorter and clearer jury instructions, and increased use of technology. He questioned why the voir dire process had not yet been streamlined and advocated for courts to send electronic forms to the jury in advance. Judge Friedman and Judge Bibas both felt that juries should have the chance to take notes. Judge Elrod admitted that judges can improve efficiency as the “producer” of the trial. She affirmed that voir dire and excessive discovery contributed to inefficiency. Judge Friedman agreed that judges play a role in facilitating expedient trials. They can set firm dates, manage cases well, and address procedural elements prior to trial.
The panel transitioned to a Q&A with the audience. It began by discussing jury nullification, with some panelists agreeing that while this power exists, judges should not explicitly tell juries to exercise it. Professor Akhil Amar of Yale Law School, who spoke earlier in the program, added that judges historically could inform juries of the sentencing consequences attached to a verdict of guilt. He thus favored jury nullification as not only a power, but as a right.
The audience returned to the topic of televising trials, wondering whether there is merit to an argument that the Sixth Amendment right to a public trial will make televised trials more common. Judge Friedman expressed concern that televising trials publicizes only incomplete glimpses and edited depictions of a trial. He urged the audience to watch arguments live, comparing it to “theater.” Judge Azcarate, however, favored televising trials as facilitating the public interest in judicial transparency and accessibility.
Professor Lerner concluded the panel by asking the judges what one thing they would change about the jury system. The judges all agreed that jurors deserve a more supportive system with promises of better payment and a more flexible summons system. The symposium thus concluded with the judges envisioning the survival of an accessible and representative jury system.
This summary was authored by Sophie Young, Member.