Serious Business : Jury Duty: It’s Trying, but It Works

Times Legal Affairs Writer

A few centuries ago, jury service was a real ordeal. In England and the American colonies, jurors were locked up without food or water to encourage them to come to a speedy verdict.

If they brought back the “wrong” verdict, God help them. They could be charged with the crime of attaint--a carry-over from days when jurors were recruited from among witnesses.

Judges could impanel a second jury to try the first.

Nowadays, jurors still confront a host of hardships, the most extreme in cases such as the McMartin Pre-School molestation trial, where panelists so far have sat through 25 months of testimony, some of which the judge says even he can no longer recall. Or the highly publicized Night Stalker murder trial in which a juror was shot to death by her boyfriend, and the rest of the panel is being sorely tested to remain unaffected.


Plenty of Oddities

With 300,000 jury trials a year in the United States, plenty of oddities crop up--like the juror in San Fernando who voted to spare a murderer from the gas chamber, then married him.

Although jury deliberations remain among the least understood aspects of the judicial system, legal scholars are gaining a better understanding of the process by which an average citizen, picked at random, sits in judgment of others.

Recent studies show that the legal system often bores and frustrates jurors, and that many judges show jurors little respect. Yet, the consensus of attorneys, judges and scholars is that most jurors take their responsibilities seriously, try hard to be unbiased--and usually succeed.

Americans use four times more juries than the rest of the world combined, clinging to them as a near-sacred cornerstone of democracy--a means of resolving disputes by relying on a panel that is representative of the community, rather than relying on the bureaucracy.

Uniquely American

“Nobody else takes democracy as seriously (as Americans),” said G. Thomas Munsterman, director of the Center for Jury Studies of the National Center for State Courts. “Nobody else elects clerks, justices of the peace, boards of education.”

Even the English, whose jury model the United States copied, abandoned juries years ago as too costly and cumbersome in most civil cases.

But in this country, the system has few critics, and even they tend to be tentative. Former U.S. Chief Justice Warren Burger, for instance, reserved his darts for juries in complex civil cases that he believed were too difficult for lay people to understand. Even so, he tiptoed to his conclusions. One speech he gave about eliminating juries in such cases was titled “Thinking the Unthinkable.”

Although many Americans rankle at the thought of jury duty and come up with creative ways to dodge it, about 3 million serve each year. Of those, about 150,000 serve in Los Angeles.

Most people wind up enjoying the experience, Munsterman said. He said frequent juror surveys show a lot of initial dissatisfaction, with complaints like “the parking is miserable,” or questions such as “Why don’t you use people on welfare who have nothing better to do?” But once jurors are chosen to serve on a specific case, they become supporters of the system by a margin of at least 8 to 1, Munsterman said.

So how well do American juries perform?

The very nature of the institution makes that difficult to answer. Individual juries come together to settle a specific controversy for which the only “right” answer is a subjective one. They debate in secret, and give no reasons for their verdicts. Then they disperse.

Covert Recordings

Pioneering jury researchers at the University of Chicago tried to penetrate the secrecy by covertly recording the deliberations of several federal court juries--a practice that they aborted when Congress got wind of it, held hearings and passed a law prohibiting such snooping.

The researchers, concentrating on criminal cases, then decided to ask judges what they thought.

They found that 75% of the time judges agreed with jurors’ findings. When they did not, it was often because jurors were acquitting people the judges would have convicted. Thus, if they erred, jurors tended to do so on the side of the defense.

Later researchers concentrated on studying the deliberations of mock juries that were sometimes asked to read trial transcripts and come to pretend-verdicts based on them, and on asking real jurors about their experiences after their service is concluded.

In the most recent research, social scientists working with the American Bar Assn. were given an unusual opportunity to videotape deliberations of alternate jurors in four federal cases. One of the panels of alternates was under the impression that it might have been the real jury.

“In a nutshell,” said the lead researcher on that project, Elizabeth Loftus, a psychologist at the University of Washington, “we found that jurors often are bored . . . and extremely frustrated by the way they are treated.”

To illustrate the boredom and frustration, Loftus cited a poem a juror had left behind in a notebook. “Oh, give me a break,” the poem began. “Just a ten-minute break, when I don’t have to sit, and listen to this ----.”

Jury Confusion

“We also found,” Loftus said, “that jurors were confused about critical concepts” such as the meaning of the word conspiracy and did not not recall some evidence correctly. “But out of all this chaos,” Loftus said, “often came order and justice.”

Social scientists have learned that most jurors take their jobs very seriously--even though they are asked to perform them with severe handicaps.

Although jurors are arbiters of the facts, while judges remain arbiters of the law, judges often treat jurors as unpredictable amateurs who are as likely to be swayed by sentiment as facts.

In an effort to keep jurors’ minds pure, and under control, judges place numerous restrictions on them.

They do not permit them to ask questions of witnesses during a trial, for example, though experiments are under way in some jurisdictions that may change that.

Judges typically refuse requests to allow jurors to take copies of legal instructions home.

Some refuse requests to have portions of testimony read back, insisting that it is what jurors remember of the testimony that is important.

Some refuse to allow jurors to take notes for fear that it will distract their attention from the witness, whose credibility they are supposed to be evaluating. Judges, however, routinely take notes, even when they are sitting without a jury to decide a case.

“If I sat up on the bench during a long . . . trial . . . I would probably be incompetent (in remembering facts and names without notes),” said U.S. District Judge Marvin Aspen of Chicago. “Yet in most of the jurisdictions in this country, judges do not permit jurors to take notes.”

No Discussion

In addition, judges routinely tell jurors that, until deliberations begin, they must not discuss with one another the case they are hearing, which is the very reason for their existence as a group.

“Here they are involved in one of the most exciting and challenging and difficult and frustrating tasks that they’ll ever face as human beings and they’re not allowed to talk about it,” said U.S. District Judge William Schwarzer of San Francisco. “Wouldn’t it help them deal with the difficulty of the task--help them understand some of the evidence as it comes in--help them see a different perspective on the evidence, by talking to other jurors about it?

“It is said that that might lead jurors to make up their mind too early,” Schwarzer said. “But the fact is that studies show jurors tend to make up their minds early in the case.”

During the 1970s, the U.S. Supreme Court eased some key jury traditions--namely the idea that 12 heads were better than one, and the requirement for unanimous verdicts in criminal cases.

The court upheld a 9-3 verdict in a Louisiana criminal case, and upheld the conviction of a Florida man at the hands of a six-member jury.

Justice Byron R. White called the 12-member jury “a historical accident . . . wholly without significance except to mystics.”

Its use, however, remains widespread in serious criminal matters, primarily because smaller juries are, by their nature, less representative of diverse populations--and having juries represent the community is what the jury system is all about.

Justice Thurgood Marshall expressed this value when he wrote: “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. . . . (Its) exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”

In recent years, there has been a lot of research aimed at giving attorneys an edge by helping them decide which types of jurors to exclude for the benefit of their clients.

When a jury is impaneled, lawyers--or judges in some jurisdictions--get to question prospective jurors about their backgrounds and attitudes. If bias is shown, the juror is excused by the court “for cause.” But each lawyer gets a certain number of other opportunities--the number varies--to knock off prospective jurors without giving reasons.

Sometimes, the lawyers hire psychologists to help them. One Chicago lawyer uses a cab driver, who can give him a rundown on a juror’s neighborhood and likely attitudes just by hearing his address.

But how well this works is not clear. A Boston-area study of 800 mock jurors, for example, showed very little correlation between a juror’s verdict and his education, occupation, political ideology, sex or age.

JURY SELECTION SYSTEM Here is how the jury selection system works: Names of prospective jurors are drawn at random by computer from voter registration and Department of Motor Vehicles records. There are about 5 million names on these lists in Los Angeles County. Last year, 1.9 million people got jury service notices. More than 766,000 never acknowledged receiving them, and officials made no effort to determine why. Another 294,000 notices were returned by the Postal Service as undeliverable. Of the approximately 850,000 people who acknowledged the notices, 200,000 were declared legally incompetent to serve, typically because they were not United States citizens, did not speak English, had been convicted of felonies, or had already served on a jury within the last two years. Another 400,000 were excused, primarily because of medical or financial hardships. About 250,000 people were summoned to court--and about 100,000 more were excused there, usually for financial and medical reasons. About 150,000 served.