JURY

In trials, a group of people who are selected and sworn to inquire into matters of fact and to reach a verdict on the basis of the evidence presented to them.

In U.S. law, decisions in many civil and criminal trials are made by a jury. Considerable power is vested in this traditional body of ordinary men and women, who are charged with deciding matters of fact and delivering a verdict of guilt or innocence based on the evidence in a case. Derived from its historical counterpart in English common law, trial by jury has had a central role in U.S. courtrooms since the colonial era, and it is firmly established as a basic guarantee in the U.S. Constitution. Modern juries are the result of a long series of U.S. Supreme Court decisions that have interpreted this constitutional liberty and, in significant ways, extended it.

History

The historical roots of the jury date to the eighth century a.d. Long before becoming an impartial body, during the reign of Charlemagne, juries interrogated prisoners. In the twelfth century, the Normans brought the jury to England, where its accusatory function remained: Citizens acting as jurors were required to come forward as witnesses and to give evidence before the monarch's judges. Not until the fourteenth century did jurors cease to be witnesses and begin to assume their modern role as triers of fact. This role was well established in British common law when settlers brought the tradition to America, and after the United States declared its independence, all state constitutions guaranteed the right of jury trial in criminal cases.

Viewing the jury as central to the rights of the new nation, the Founders firmly established its role in the U.S. Constitution. They saw the jury as not only a benefit to the accused, but also as a check on the judiciary, much as Congress exists as a check on the executive branch. The Constitution establishes and safeguards the right to a trial by jury in four ways: Article III establishes this right in federal criminal cases; the fifth amendment provides for grand juries, or panels that review complaints in criminal cases, hear the evidence of the prosecutor, and decide whether to issue an indictment that will bring the accused person to trial; the sixth amendment guarantees in serious federal criminal cases the right to trial by a petit jury, the most common form of jury; and the seventh amendment provides for a jury trial in civil cases where the amount in controversy exceeds $20.

Minnesota's Approach to a More Diverse Jury Pool

Many urban areas have encountered difficulties in providing racially and economically diverse jury pools. Critics of the criminal justice system point out that people of color are overrepresented in the number of individuals arrested, prosecuted, and imprisoned, and underrepresented on criminal juries.

In 1993 the Minnesota Supreme Court Task Force on Racial Bias in the Judicial System issued a report that called for changes in jury management, so as to encourage diversity in juries. The judicial system took several steps to respond to the report.

The Minnesota Supreme Court amended jury management rules to authorize Hennepin and Ramsey Counties, the most populous and racially diverse counties in the state, to adopt new jury selection procedures that guarantee that, by percentage, minority group representation on the grand jury is equal to that in the two counties. Hennepin County implemented a plan that allows grand jurors to be selected randomly unless there are no people of color among the first twenty-one jurors selected, in which case the selection process continues until at least two of the twenty-three grand jurors are people of color.

At the state level, the judicial system secured funds from the legislature to raise the rate of daily juror pay and to pay for drop-in day care for jurors who normally do not use day care. The system also began to reimburse jurors for their mileage to and from the courthouse. These steps were taken to decrease the economic hardship on potential jurors who might otherwise ignore a jury summons or ask to be excused.

The modern jury is largely a result of decisions of the U.S. Supreme Court, which has shaped and sometimes extended these constitutional rights. One important decision was the Court's 1968 ruling in Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491, which requires states to provide for jury trials in serious criminal cases. Prior to Duncan, states had their own rules; Louisiana, for instance, required juries only in cases where the possible punishment was death or hard labor. The Court declared that the right to a jury trial is fundamental. In cases in which the punishment exceeds six months' imprisonment, it ruled, the due process clause of the fourteenth amendment requires that the protections of the Sixth Amendment apply equally to federal and state criminal prosecutions.

Defendants may, under some circumstances, refuse a jury trial in favor of a trial before a judge. In 1965, the U.S. Supreme Court ruled that the constitutional right to a jury trial does not imply a related right to refuse one (Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630). It observed that juries are important not only to the defendant but also to the government and the public. The government, it wrote, has an interest in trying cases "before the tribunal which the Constitution regards as most likely to produce a fair result." Thus, in federal cases, rules governing criminal procedure allow a defendant to waive a jury trial only if the government consents and the court gives its approval. States vary in their approach, with some, such as Nebraska and Minnesota, requiring only the court's approval and others, such as Illinois and Louisiana, granting the defendant's wish as long as the decision is informed.

In 2002, a Jury Innovations Committee established in Florida offered no fewer than 48 jury-reform suggestions designed to make the system more efficient and user-friendly. The suggestions included requiring jury instructions to be made clearer and to allow jurors to discuss evidence as it is presented, instead of after deliberations begin.

Should the Peremptory Challenge Be Abolished?

aperemptory challenge permits a party to remove a prospective juror without giving a reason for the removal. This type of challenge has had a long history in U.S. law and has been viewed as a way to ensure an impartial jury. However, use of the peremptory challenge changed as a result of the U.S. Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and its progeny, and the changes have led some lawyers and legal commentators to call for its abolition. They argue that these Court decisions have deprived lawyers of their absolute discretion in using the challenges and have turned peremptory challenges into challenges for cause. Defenders of the peremptory challenge believe that the new race, gender, and religious affiliation requirements initiated by Batson simply ensure that jurors will not be excluded on the basis of stereotypes.

Those who favor retention of the peremptory challenge point to its four purposes: The peremptory challenge allows litigants to secure a fair and impartial jury. It gives the parties some control over the jury selection process. It allows an attorney to search for biases during the selection process without fear of alienating a potential juror. If, for example, a juror appears offended by the nature of the questioning, that juror can be excluded even if the answers she gives do not demonstrate bias. Finally, the peremptory challenge serves as an insurance policy when a challenge for cause is denied by the judge and the challenging party still believes that the juror is biased.

Defenders of the peremptory challenge contend that the limitations imposed by the Supreme Court have not substantially impaired the use of the challenge. As a result of Batson, a peremptory challenge can be questioned by the opposite side if that side believes that it was based solely on race or gender. The reasoning behind this change is that striking jurors on the basis of race or gender perpetuates stereotypes that were prejudicial and that were based on historical discrimination. The only way to correct this record is to allow a party to establish a prima facie case of racial or gender discrimination. Defenders believe that to say Batson introduced race into the jury selection process is to ignore the part race has already played in the use of peremptory challenges. The other side has the opportunity to offer a nondiscriminatory reason for the challenge. The reason does not have to rise to the level of a "for-cause" challenge. It merely has to be a reasonable concern that can be articulated. Defenders of the challenge argue that this is an acceptable modification of the challenge.

They also point out that other characteristics of jurors are not bound by the Batson line of cases. A peremptory challenge based on a juror's religion, age, income, occupation, or political affiliation cannot be questioned as long as it is not a pretext for concealing race or gender bias. Therefore, argue supporters, the peremptory challenge is still a valuable tool in trial proceedings.

Those who argue for the abolition of the peremptory challenge come from two camps. One camp believes that the Batson line of cases was a mistake. This group would prefer to return to unrestricted use of the challenge but, knowing that overturning precedent is unlikely, recommends eliminating the challenge. The other camp believes that the racial, gender, and religious affiliation tests crafted by the courts are idealistic creations that are easily subverted in daily courtroom practice. The reality is that allegations of bias using Batson rarely are successful.

The group that believes that the changes following Batson were a mistake argues that the whole point of the peremptory challenge is that it is made totally within the discretion of the lawyer. A trial lawyer may have a gut feeling about a juror, a feeling that is difficult to articulate to a judge and does not rise to a for-cause strike. Prior to Batson a court would allow this type of peremptory challenge. Since Batson the lawyer is required to articulate a reason. The temptation for the lawyer is to invent a "reasonable" explanation rather than risk having the peremptory challenge denied.

These critics argue that the only way for a lawyer to protect a client under this new system is to interrogate prospective jurors concerning intimate, personal matters in order to create defensible grounds for striking them. Lawyers must take more notes during questioning and spend more time evaluating the answers of jurors. The selection of a jury is lengthened if this tactic is chosen, placing more pressure on an overtaxed court system. Therefore, contend these critics, it would be better to abolish peremptory challenges and try other methods of jury selection. One alternative is expanding challenges for cause, allowing lawyers to exclude prospective jurors for legitimate, articulated reasons that do not satisfy the tougher current standards of challenges for cause.

The other group that questions Batson points to the difficulty of achieving the racially neutral selection of a jury. Surveys have shown that motions to deny peremptory challenges because of race or gender bias are rarely made, and that when they are judges accept all types of questionable race-neutral explanations to refute them. Thinking in the legal community over this issue has led state judiciaries to reflect on the best course to take. For example, the Florida Supreme Court-appointed Jury Innovations Committee issued a report in 2002 that recommended the elimination of peremptory challenges.

further readings

Griebat, Jeb C. 2003. "Peremptory Challenge by Blind Questionnaire: The Most Practical Solution for Ending the Problem of Racial and Gender Discrimination in Kansas Courts While Preserving the Necessary Function of the Peremptory Challenge." The Kansas Journal of Law & Public Policy 12 (winter).

Jones, Barbara. 2003. "Peremptory Challenge Should Have Been Granted." Minnesota Lawyer (July 14).

Montz, Vivien Toomey, and Craig Lee Montz. 2000. "The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law." Univ. of Miami Law Review 54 (April).

cross-references

Litigation.

Jury Selection

Jury selection is the process of choosing jurors. Not all people are required to serve on the jury: Some individuals and members of some occupational groups may be excused if serving would cause them or their family hardship. The U.S. Supreme Court has held that the Sixth Amendment merely requires that jurors be selected from a list that does not exclude any identifiable segment of the community (Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 [1975]).

Federal courts select grand and petit juries according to the guidelines in the Jury Selection and Service Act of 1968 (28 U.S.C.A. §§ 1861–78 [2000]). Generally, most communities use voter-registration lists to choose prospective jurors, who are then summoned to appear for jury duty. This group of prospective jurors is called a venire.

Once the venire is assembled, attorneys for both the prosecution and the defense begin a process called voir dire. Literally meaning "to speak the truth," voir dire is a preliminary examination of the prospective jurors, in order to inquire into their competence and suitability to sit on the jury. Although the judge may ask questions, it is primarily the attorneys who do so. Their goal is to eliminate jurors who may be biased against their side, while choosing the jurors who are most likely to be sympathetic. Attorneys for each side are allowed to reject potential jurors in two ways. They may dismiss anyone for cause, meaning a reason that is relevant to that person's ability and fitness to perform jury duty. And they may issue a limited number of peremptory challenges, which are dismissals that do not require a reason.

The process of voir dire—especially in the exercise of peremptory challenges to custom design a jury—has provoked controversy. Defendants may challenge a venire, alleging discrimination, but such complaints are difficult to prove. Thus, critics of the selection process have argued that it skews the composition of juries according to race, class, and gender. In 1990, the U.S. Supreme Court held that juries need not represent a cross section of a community, but merely must be drawn from a pool that is representative of the community (Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905). In 1991, it forbade prosecutors to use their peremptory challenges to exclude potential jurors on the basis of race (Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411). In 1999, the Supreme Court of Connecticut ruled that prospective jurors could not be dismissed solely on account of their religious beliefs, except when those beliefs would keep them from performing their duties on the jury (State v. Hodge, 726 A.2d 531 [Conn. 1999]). Along with other complaints—on issues ranging from efficiency to fairness—the decisions provided advocates of jury reform with further ammunition for their efforts to change fundamentally, and even to eliminate, juries.

Jury Size

Juries range in size according to their nature. Grand juries are so named because they are usually larger than petit juries, having from 12 to 23 members. Traditionally, petit juries have had 23 members, but the number is not fixed. In 1970, the U.S. Supreme Court held that the number 12 was not an essential element of trial by jury (Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446), and it has sanctioned juries of no fewer than six members in criminal cases (Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 [1978]). Parties in federal district courts, as well as in many state courts, can stipulate that the jury size be any number between six and 12. Commonly, federal district court juries consist of six persons for civil cases.

Jury Instructions

Throughout a trial, the jury receives instructions from the judge. The judge explains the relevant points of law, which the jury is bound to

accept and to apply. The judge directs the jury to disregard inadmissible testimony and provides guidelines on the way to behave outside of court. During the 1995 trial of o. j. simpson for the murder of his estranged second wife and a friend of hers, for example, Judge Lance Ito issued daily orders to jurors not to discuss the case with anyone. Some instructions vary across jurisdictions and according to judges, such as whether jurors will be allowed to take notes during the trial; generally, they may not. In certain highly publicized trials, the judge may sequester the jury—that is, isolate its members in private living quarters such as hotel rooms in order to shield them from trial publicity. Violating the judge's orders can result in a juror being dismissed from the trial in favor of an alternate juror.

Jury Verdict

Following the closing arguments in a trial, jurors deliberate in private to arrive at a verdict, which is then reported to the court by the jury foreman or forewoman. Defendants in federal jury trials have the right to a unanimous verdict. This is not true in state jury trials, where the size of the jury determines whether unanimity is required: A 12-member jury may convict without unanimity, whereas a six-member jury may not.

In some cases, consensus among jurors is very difficult to reach. When jurors fail to reach an agreement, the judge may issue an instruction known as an Allen charge, in which the judge tells the jurors to continue deliberating and to listen carefully to each other and to be deferential toward each other's views. Continued failure to arrive at a verdict results in a hung jury, which necessitates a new trial with a different jury.

In criminal trials in most jurisdictions, the jury's job ends with the delivery of a verdict of guilt or innocence on every count pertaining to the case, and the judge determines sentencing. In civil cases, juries generally determine the amount of a damages award.

Jurors sometimes exercise their right to protest against a law that they consider unfair or unjust by voting "not guilty" even though the defendant is guilty of violating that law. This practice is called jury nullification and it goes back to colonial times. An example of jury nullification would be when a juror who believes that marijuana should be legalized votes "not guilty" in a case in which the defendant is accused of growing marijuana. The Fully Informed Jury Association (FIJA), founded in 1989, provides information about jury nullification to prospective jurors who might not know that it exists as an option.

further readings

Amar, Akhil Reed. 1995. "Reinventing Juries: Ten Suggested Reforms." University of California at Davis Law Review 28 (summer).

Conrad, Clay S., 1998. Jury Nullification: The Evolution of a Doctrine. Washington, D.C.: Cato Institute.

Leach, Brian E. 1995. "Extending Batson v. Kentucky to Gender and Beyond: The Death Knell for the Peremptory Challenge?" Southern Illinois University Law Journal 19.

Minnesota State Court Administration. Office of Research and Planning. 1993. Minnesota Supreme Court Task Force on Racial Bias in the Judicial System: Final Report. St. Paul.

Minnesota State Court Administration. Office of Research and Planning. Implementation Committee on Multicultural Diversity and Fairness in the Courts. 1995. Progress Report. St. Paul.

——. 1994. Progress Report. St. Paul.

Montoya, Jean. 1996. "The Future of the Post-Batson Peremptory Challenge." University of Michigan Journal of Law Reform 29.

Sklansky, Joseph J. 1996. "Right to Jury Trial." Georgetown Law Journal 84 (April).

cross-references

Due Process of Law; Grand Jury.

JURY

In trials, a group of people selected and sworn to inquire into matters of fact and to reach a verdict on the basis of the evidence presented to it.

Johnson v. California

The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race through the use of peremptory challenges. A peremptory challenge permits a party to remove a prospective juror without giving a reason for his or her removal. This type of challenge has had a long history in U.S. law and has been viewed as a way to insure an impartial jury. However, under the Batson test, a defendant may object to a prosecutor's peremptory challenge based on an allegation of racial bias. The prosecutor then must come forward with a neutral explanation for challenging the inclusion of the prospective juror. If the prosecutor cannot do so, the court will not excuse the juror. Despite the seeming clarity of this test, the Supreme Court included language in its decision that permitted state courts to formulate procedures to comply with Batson. However, the Court ruled in Johnson v. California, __U.S. __, 125 S.Ct. 2410, __ L.Ed.2d __ (2005), that California's procedures violated the letter and spirit of Batson.

Jay Shawn Johnson, a black male, was convicted by a California jury of second-degree murder and assault of his white girlfriend's 19-month-old daughter. During jury selection, the pool of potential jurors was reduced to 43 individuals, only three of whom were black. The prosecutor used 3 of his 12 peremptory challenges to remove these prospective black jurors. Johnson's attorney objected when the second and third persons were dismissed, citing Batson. The attorney argued that there were no grounds to challenge the jurors other than their racial identity. The judge did not ask the prosecutor to explain the reasons for his strikes, ruling that the defense had failed to establish under California Supreme Court precedent the "strong likelihood" that the challenges were based upon a group basis rather than an individual one. The judge expressed his opinion that the prosecutor had neutral grounds for the challenges, specifically that the black jurors had given equivocal or evasive answers in their written questionnaires.

The California Court of Appeals reversed Johnson's conviction, concluding that the trial judge's "strong likelihood" requirement was excessive. Under Batson the defense only had to provide enough evidence to support an "inference" of discrimination. Then, it would be up to the prosecutor to provide a neutral explanation for a challenge. The state appealed this ruling to the California Supreme Court, which reinstated Johnson's conviction. That court believed that the Batson decision gave states the freedom to establish the standards for determining whether a defendant's evidence was sufficient to establish a prima facie (i.e., on its face) case of discrimination. The Batson decision permitted California trial courts to require that a defendant present not merely "some evidence" but "strong evidence" that makes discriminatory intent "more likely than not if the challenges are not explained." The court did acknowledge that this was a substantial burden on defendants. In Johnson's case, the court found that the allegations of bias were based primarily on the statistical disparity between blacks and others. Despite the "troubling" nature of the statistics, the court deferred to the trial judge's ruling.

The U.S. Supreme Court, in an 8-1 decision, reversed the California Supreme Court. Justice John Paul Stevens, in his majority opinion, noted that the issue was narrow but important: the scope of the first step of the Batson test. Although he acknowledged that states do have the right to fashion appropriate procedures to comply with Batson, he concluded that California's "more likely than not" standard was "an inappropriate yardstick by which to measure the sufficiency of a prima facie case."

Justice Stevens looked to language in Batson that demonstrated how much evidence was needed in order to draw an inference of discrimination. In that case, the Court said that it was enough for the defendant to show that he was a member of a particular racial group, that the prosecutor had exercised peremptory challenges to remove potential jurors of the defendant's race, and that these and any other relevant circumstances raised an inference that the prosecutor had used the challenges to remove persons from the jury on account of their race. In Batson itself, the Court had ruled that the trial judge had erred when in rejecting the defense's objections without requiring the prosecutor to explain his reasons for the challenges.

In the Court's view, it did not "intend the first step to be so onerous" that the defendant had to convince a judge (on the basis of facts that the defendant would find impossible in most cases to know with certainty) that "the challenge was more likely than not the product of discrimination." The proper course was for a less burdensome standard of evidence production, followed by the prosecutor's explanation for the challenges. Following these arguments, the third step required the judge to rule on the "persuasiveness of the justification." The California State Supreme Court effectively removed the second step of Batson. Therefore, the Court reversed Johnson's conviction and remanded his case to the California courts for a new trial.

Miller-El v. Dretke

The U.S. Supreme Court has looked closely at death penalty cases in which the defendant has presented credible evidence of racial bias in the selection of jurors. The case of Texas death row inmate Thomas Miller-El is a prime example, with the Court reviewing his case twice and, in the second instance, Miller-El v. Dretke, __U.S. __, 125 S.Ct. 2317, __ L.Ed.2d __ (2005), granting him a writ of habeas corpus and a new trial. The Court concluded that Dallas prosecutors had removed potential jurors through the use of peremptory challenges simply because they, like Miller-El, were black.

Under the Court's landmark case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986), prosecutors are forbidden to exclude prospective jurors through the use of peremptory challenges on the basis of race. A peremptory challenge permits a party to remove a prospective juror without giving a reason for his or her removal. This type of challenge has had a long history in U.S. law and has been viewed as a way to ensure an impartial jury. However, under the Batson test, a defendant may object to a prosecutor's peremptory challenge, based on an allegation of racial bias. The prosecutor then must come forward with a neutral explanation for challenging the inclusion of the prospective juror. If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror.

In 1986, Miller-El was convicted of murder, in Texas state court. He appealed his conviction and death sentence, arguing that Dallas County prosecutors had shown racial bias by exercising peremptory challenges to remove 10 of 11 qualified blacks from the jury pool. Miller-El had raised these concerns before trial, but the court found no evidence of racial bias. While his appeal was pending, the U.S. Supreme Court issued its decision in Batson. Based on this new standard, the Texas Court of Criminal Appeals remanded Miller-El's case to the trial court to reevaluate the bias claim. The court held a hearing and again rejected his argument, ruling that his evidence "did not even reason an inference of racial motivation in the use of the state's peremptory challenges." The Texas appeals court upheld this ruling, and Miller-El fared no better in a state habeas appeal.

Miller-El then filed a federal habeas petition in the U.S. District Court for the Northern District of Texas, arguing that the prosecution had violated Batson. Although the court was troubled by some of the evidence, it concluded that it should give deference to the state court ruling. The U.S. Court of Appeals for the Fifth Circuit rejected his request to appeal this ruling because Miller-El had failed to provide clear and convincing proof that the state court ruling had been unreasonable. The U.S. Supreme Court, in Miller-El v. Cockrell, 537 U.S. 322 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), reversed the appeals court, finding that Miller-El had produced enough evidence to warrant a full hearing in the Fifth Circuit on his claims. In its decision, the Court expressed deep concerns over the reasons why the state and federal courts had not been troubled by Miller-El's evidence of racial discrimination. It noted that 91 percent of the black jurors had been removed by peremptory challenges. Apart from statistics, the Court found that prosecutors had varied their questions asked of potential jurors on the basis of race, thereby empanelling a jury that expressed no reservations about imposing the death penalty. Miller-El also had produced witnesses and training manuals that showed the district attorney's office had a long-standing internal policy of keeping blacks off of juries.

On remand, the Fifth Circuit again rejected Miller-El's claim, and the Supreme Court agreed to hear the merits of his habeas petition. In a 6-3 decision, the Court overturned the appeals court ruling and held that Miller was entitled to a new trial because of Batson violations. Justice David Souter, in his majority opinion, restated much of the incriminating evidence of racial bias from the first Court decision. He concluded that the prosecution's explanation for the challenges "reeks of afterthought" and that some of the questions posed to prospective black jurors "might fairly be called trickery." He pointed out that one black man who was excluded from the jury had expressed "unwavering support" for the death penalty. This individual typically would have been an ideal juror for the prosecution, yet he was excluded.

Justice Souter chided the Fifth Circuit's reading of Miller-El's evidence as a "dismissive and strained interpretation." In its review, the Court found that the jury-selection process "was replete with evidence that prosecutors were selecting and rejecting potential jurors because of race. And the prosecutors took their cues from a manual on jury selection with an emphasis on race." Therefore, Miller-El merited a new trial.

In a concurring opinion, Justice Stephen Breyer opined that the time might have come to abolish peremptory challenges, as England had done. Justice Clarence Thomas, in a dissenting opinion joined by Chief Justice William Rehnquist and Justice Antonin Scalia, pointed out that the jury that had convicted Miller-El had been made up of seven white women, two white men, a black man, a Filipino man, and a Hispanic man. He argued that there were plausible explanations for striking the prospective black jurors, which fell short of the clear and convincing evidence needed to grant Miller-El a new trial.

Jury

In trials, a group of people selected and sworn to inquire into matters of fact and to reach a verdict on the basis of the evidence presented to it.

Uttecht v. Brown

In Uttecht v. Brown, the U.S. Supreme Court reversed the Ninth Circuit Court of Appeals and reinstated the decision of a trial court judge to dismiss a potential juror and uphold the jury's decision to impose a death sentence. The convicted defendant had argued that the potential juror, who expressed equivocal feelings about the death penalty, might have been helpful to the defendant. But the Supreme Court found it well within the proper purview of the trial judge to determine that a potential juror should be dismissed because of possible prejudicial statements in favor of the defendant.

Defendant Cal Coburn Brown had robbed, raped, tortured, then murdered a woman in the state of Washington. Two days later, he robbed, raped, tortured, and attempted to murder a second woman in California, but was apprehended by police. He confessed to the crimes and pleaded guilty in California, for which he received life imprisonment. However, the State of Washington brought him to trial. Following the jury's guilty verdict, Brown was sentenced to death. Both conviction and death sentence were affirmed on appeal to the state Supreme Court of Washington.

On federal habeas appeal, Brown argued that the state trial court had violated his Sixth and Fourteenth Amendment rights to a fair trial by excusing three potential jurors (whom the appellate court referred to as Jurors X,Y, and Z) for cause. At trial, state prosecutors had moved to dismiss these jurors due to a concern that they could not be impartial in deciding to impose a death sentence.

Back in 1968, the Supreme Court held, in Witherspoon v. Illinois, 391 U.S. 510, that a juror cannot be dismissed from serving simply because he or she has a general moral or religious objection to the death penalty. The relevant question was whether that objection would interfere with an ability to follow the law and responsibility of a juror.

Carrying that holding further, in Wain-wright v. Witt, 469 U.S. 412 (1985), the Supreme Court ruled that a juror may be excused if his or her views would "prevent or substantially impair" an ability to follow instructions and act in accordance with a juror's responsibilities and oath of service.

In the present case, all three jurors were questioned during voir dire ) for their views on the death penalty. All three were dismissed. On appeal, the Ninth Circuit panel agreed with the dismissals of Jurors X and Y. But it reversed the dismissal of Juror Z. At voir dire, Juror Z had indicated that he was willing to follow the law, had reservations about the death penalty, but agreed that the death penalty might be appropriate under certain circumstances, such as when a defendant is incorrigible and likely to commit crimes again if released. The jurors were told prior to voir dire that Brown was only eligible for the death penalty or life without possibility of release or parole.

The state prosecutors then moved to remove the juror for cause because he seemed to believe in the death penalty only when there was a chance that the defendant could commit more crimes. Defense counsel was asked and responded "No objection" to the dismissal.

But on appeal, Brown wanted his death sentence set aside, claiming that the dismissal violated his right to a fair trial under the Sixth Amendment, applicable to states under the Fourteenth Amendment.

Justice Kennedy, in writing for the majority of the Court, summarized the law. Under Witherspoon, (above), a criminal defendant had the right to an impartial jury, not one that had been tilted toward capital punishment from selective challenges for cause by state prosecutors. On the other hand, under Witt, (above), the state has a strong interest in having jurors who are able to apply capital punishment where state law requires it. In balancing these interests, a juror who is substantially impaired in an ability to impose the death sentence may be excused for cause, but if the juror is not so impaired, removal for cause is impermissible.

In determining whether a potential juror should be dismissed for cause, the trial court bases its judgment in part on the juror's demeanor, said Justice Kennedy. And this judgment is owed deference, under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 USC §2254, AEDPA. Under AEDPA, courts may grant federal habeas relief only if a state court's decision is contrary to, or involves an unreasonable application of, "clearly established federal law as determined by the Supreme Court of the United States."

The trial court is in the best position to judge a potential juror's demeanor. This is a critical factor in assessing the juror's attitude and qualifications to serve on a capital jury, and that assessment must be given deference.

In the present case, Juror Z clearly appeared confused about his responsibilities as a juror. Further, his attitude toward capital punishment could have prevented him from returning a death sentence under the facts of the case. Review of the trial record clearly showed that he was told at least four times that Brown could not be released from prison, and therefore posed no threat for recidivism. The juror stated six times that he could follow the law. But he continued to give equivocal statements about imposing the death penalty only if Brown might be released and could commit crimes again. The state properly challenged Juror Z on these grounds, and defense counsel failed to object. The trial court's dismissal for cause was proper.

The Court held that the Ninth Circuit had erred in holding that the state courts' affirming the dismissal of Juror Z was contrary to, or involved an unreasonable application of, "clearly established federal law as determined by the Supreme Court of the United States." It reversed and remanded, effectively upholding the death sentence for Brown.

There was strong dissent from Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer. The dissent felt that the juror's demeanor, even if equivocal, could not overcome his actual responses during voir dire. The best reading of his responses was that, while he had reservations about the death penalty, he would consider it and impose it where appropriate. His mention of the possibility of recidivism, or repeat offenses, was only an example. Further, under Washington law, defense counsel's failure to object did not serve to bar his ability to raise the issue on appeal.

JURY

In trials, a group of people selected and sworn to inquire into matters of fact and to reach a verdict on the basis of the evidence presented to it.

Snyder v. Louisiana

The Supreme Court's landmark case, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986), states that prosecutors are forbidden from excluding prospective jurors on the basis of race through the use of peremptory challenges. A peremptory challenge permits a party to remove a prospective juror without giving a reason for his or her removal. This type of challenge has had a long history in U.S. law and has been viewed as a way to insure an impartial jury. However, under the Batson test, a defendant may object to a prosecutor's peremptory challenge based on an allegation of racial bias. The prosecutor then must come forward with a neutral explanation for challenging the prospective juror. If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror. The Court has been called on over the past 20 years to decide whether a trial court judge acted correctly in accepting the explanation of the prosecutor. In Snyder v. Louisiana,—U.S.—, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008), the Court stepped in again, ruling that the reasons offered by the prosecutor for striking a black prospective juror were a pretext for racial discrimination.

Allen Snyder was convicted of first-degree murder in a Louisiana court and was sentenced to death. He had killed the boyfriend of his wife, who was separated from Snyder at the time of the murder. Jury selection for his trial started the last week of August, 1996. The prosecutor and Snyder's lawyer struck prospective jurors for cause first and then moved on to exercising their peremptory challenges. Under Louisiana law, the parties were allowed to exercise “back-strikes.” This meant they were permitted to use their peremptory challenges up until the final jury was sworn, striking jurors whom they had initially accepted when the jurors' panels were called. Of the 85 prospective jurors who were questioned, 36 survived challenges for cause. Five of the 36 were black and all five were eliminated by the prosecution through the use of peremptory challenges. The jury found Snyder guilty and sentenced him to death. Snyder appealed his conviction, contending that the selection of the jury was racially biased under Batson. The Louisiana Supreme Court rejected his claim. Snyder then took his case to the U.S. Supreme Court.

The Supreme Court, in a 7–2 decision, overturned the state supreme court ruling, finding that in the case of one black juror the prosecutor violated Batson. Justice Samuel Alito, writing for the majority, noted that it was up to the trial court judge to determine if the defendant has shown purposeful discrimination by the prosecution. An appellate court , when reviewing Batson challenges, must sustain a trial court's ruling on discriminatory intent unless it is clearly erroneous. Great deference is given to the trial judge's decision because it must evaluate the prosecutor's credibility, which typically involves examining the demeanor of the prosecutor. Other factors, including a juror's demeanor, make the trial court's “first hand observations of even greater importance.” Despite this recitation of deference to the trial court, Justice Alito questioned the judgment of the trial court judge in assessing discriminatory intent.

The case turned on the challenge of Jeffrey Brooks, a black man, to sit as a juror. Brooks, a college senior, was scheduled to begin his student-teaching obligation and initially expressed interest in not serving. However, the judge's law clerk talked with Brooks' dean, who assured the court that if the trial ended in a few days there would be no problem in Mr. Brooks making up the hours. Based on this finding Brooks made it to the final panel. The next day the prosecutor exercised a peremptory challenge against Brooks, thereby instituting a backstrike. Snyder's lawyer made a Batson objection. The prosecutor offered two reasons for his strike: (1) Brooks looked very nervous throughout his questioning the day before, and (2) His fear of missing his student-teaching assignment might lead to him vote for a lesser verdict to avoid the penalty phase, which determines if a defendant should be sentenced to death. Snyder's lawyer disputed these explanations. The trial judge offered an opaque ruling: “All right. I am going to allow the challenge. I'm going allow the challenge.”

Justice Alito declined to give deference to the judge's evaluation of Brooks' nervousness because the judge did not explain his reasons for accepting either of the prosecutor's justifications. Because of this silence, Justice Alito concluded that “we cannot presume that the trial judge credited the prosecutor's assertion that Mr. Brooks was nervous.” The second proffered reason, Brooks' student-teaching obligation, also failed to meet the Court's “highly deferential standard of review.” Though Mr. Brooks at first expressed concern about serving on the jury, once his dean stated that this would not be a problem, he did not express any further concern. As for the prosecutor's claim that Brooks might not vote for capital murder, so as to avoid the penalty phase of such a verdict, Justice Alito found this scenario “highly speculative.” Even if Brooks had favored a speedy conclusion to the trial, it would not have necessarily led him to reject a first-degree murder verdict. If the majority of the jurors had favored a finding of first-degree murder, Brooks' “purported inclination might have led him to agree in order to speed the deliberations.” However, the most significant evidence pointed to the fact that the prosecutor had told the prospective jurors at the beginning of the process that the trial would be brief. Mr. Brooks would not have been concerned about his teaching obligation because the trial happened early in the semester and he would have had many weeks to make up a few lost hours. In fact, the trial lasted just two days, which confirmed that prosecutor's explanation was implausible. Finally, the fact that the prosecutor accepted a white juror who disclosed conflicting obligations undercut the concerns he cited about Brooks. Therefore, the prosecutor's pretextual explanations gave rise to an inference of discriminatory intent. The Court reversed Snyder's conviction and remanded the case for a new trial.

jury system. The origins of the jury system are disputed. The name means a body of persons sworn to make a statement on a matter. Although it has been suggested that the jury has Germanic-Anglo-Saxon origins, it is more likely that the institution of a body of men giving an answer, under oath, to a specific question put to them by the ruler originated in the Frankish inquest. The first juries in the common law were juries instituted by Henry II to make presentment of serious crimes to the travelling justices, and the juries under the Grand Assize and the petty or possessory assizes, who replied under oath to inquiries by the sheriff or the justices on questions relating to right to land or questions of disseisin of land.

The ‘trial jury’ originated when, in 1215, the Lateran Council of the church forbade clergy to participate in ordeals, which were, at that time, the means of deciding guilt. Deprived of the ordeal, the justices resorted to the use of sworn bodies of neighbours to decide whether the accused person was guilty. Gradually the ‘trial jury’ of twelve developed after a number of experiments. This jury became common in both civil and criminal law through the action of trespass and became one of the most marked features of the common law. Gradually juries ceased to speak from their own knowledge and instead were supposed to have an open mind and to decide questions by listening to evidence.

The jury was one of the attractive features, for litigants, of the common law, though there were periods of unrest (e.g. the 15th cent.) when it was discredited because of interference with its verdicts by the rich and powerful. In 1670 it was decided in Bushell's case that a jury could no longer be attainted for reaching a verdict contrary to the evidence or the wish of the court. This, coupled with the decisions in the period of constitutional strife in the 17th cent., led to the jury's being regarded as the ‘bulwark of liberty’ and trial by jury as a protection for the rights of the subject against tyrannical prosecution. Majority voting was introduced in the 20th cent. and the complexity and length of some trials, particularly in matters of fraud, led to suggestions that the use of juries should be reviewed.

Maureen Mulholland