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«I. INTRODUCTION The modern jury plays many roles. At the very least the jury’s tasks are to find facts, to apply the law, and to render judgment. ...»

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JURIES, JUSTICE

& MULTICULTURALISM

NANCY S. MARDER∗

I. INTRODUCTION

The modern jury plays many roles. At the very least the jury’s tasks are

to find facts, to apply the law, and to render judgment. Trial judges typically

describe this conventional view to jurors when they instruct jurors that these

are the jury’s sole functions.1 Privately, judges might acknowledge that juries

∗ Associate Professor of Law and Norman & Edna Freehling Scholar, Chicago-Kent College of Law. B.A. 1980, Yale University; M. Phil. 1982, Cambridge University; J.D. 1987, Yale Law School. I am particularly indebted to Leslie Ellis, a doctoral candidate at the University of Illinois-Chicago, who has done all of the statistical analysis for this project and whose work is set forth in Appendix A. I am also grateful for the support and encouragement I have received for this project from all of my colleagues at Chicago-Kent, and from early comments on my findings from Susan Adams, Katharine Baker, Sarah Harding, Claire Hill, Andrea Johnson, Deborah Musiker, Peggie Smith, Joan Steinman, Margaret Stewart, and Mary Rose Strubbe. Additionally, I have benefited from comments at a faculty workshop at the University of Indiana Law School, conferences of the Law, Culture and the Humanities Working Group at Georgetown Law Center and Law & Society in Miami Beach, Florida, and from the advice of many colleagues, including Paula Hannaford, Valerie Hans, Cymra Haskell, Carrie Hempel, Karen Lash, Tom Munsterman, John Rolph, Dan Simon, and faculty and graduate students in the Psychology Department at the University of Illinois-Chicago. Finally, this project would not have been possible without a generous grant from the Southern California Studies Center, financial support from a Dean’s Challenge Grant at Chicago-Kent, the research assistance of Grace Alcomendas, Halle Jones, David Krippner, and Matthew Mellen in Los Angeles, and of Scott Paccagnini in Chicago, and the library assistance of Lucy Moss.

1. Throughout the trial, judges instruct jurors that their job is to find the facts. As one typical instruction provides: “Your purpose as jurors is to find and determine the facts. Under our system of justice you are the sole judge of the facts.” 1A FEDERAL JURY PRACTICE AND INSTRUCTIONS: CRIMINAL § 10.01, at 5 (5th ed. 2000). Judges also instruct jurors that they are to take the law as the judge gives it to them: “I instruct you that the law as given by the Court in these and other instructions constitute the only law for your guidance. It is your duty to accept and to follow the law as I give it to you even though you may disagree with the law.” Id. Judges emphasize that the jury’s role is quite different from the judge’s role, see id. at 8 (“Your job is to decide all of the factual questions in this case.... I will decide all of the legal questions in this case....”), and that the jury’s central role is to find facts. See, e.g., id. at 20 (“You, and you alone, are the judges of the facts.”) (quoting Fifth Circuit instruction); id. at 46 (“By your verdict(s) you will decide the disputed issues of fact.”) (quoting Eleventh Circuit instruction); id. at 38 (“It will be your duty to decide from the evidence what the facts are.”) (quoting Ninth Circuit instruction).

660 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 75:659 do indeed perform additional roles. For example, one judge who presided over a trial that resulted in a hung jury then had the opportunity to watch that jury deliberate because its deliberations had been filmed for television.2 The judge, after seeing that the jury’s impasse was the result of one juror who nullified, acknowledged in an interview that jurors may sometimes act upon their moral sense and that this was consistent with the jury’s role as conscience of the community.3 Supreme Court justices often have focused upon another function of at least the criminal jury, which is to stand as a buffer between the defendant and the government, thus protecting the defendant from the prosecutor’s overzealousness or the judge’s biases.4 Although few would argue with these conventional roles, I believe that the jury plays many other roles as well.5 In finding facts and applying the law, the jury also engages in interpretation.6 Both the finding of facts (What steps did the police officer take in making the arrest?) and the application of legal standards (Did the police officer use excessive force in making the arrest?) necessarily involve acts of interpretation. Sometimes the jury’s interpretations, for example in negligence or products liability, can move the law beyond what the legislature enacted.7 At other times, the jury takes a step beyond interpretation and engages in nullification. Through nullification, a jury’s resistance to a law or to its application in a particular case may lead the legislature to reexamine, and eventually to repeal, that law.8

2. See CBS Reports: Enter the Jury Room (CBS television broadcast, Apr. 16, 1997) (Transcript of broadcast at 49). Judge Ryan presided over the trial of Modesta Solano, who had been charged with possession and transportation of drugs. The first trial resulted in a hung jury. Judge Ryan had the rare opportunity to observe that jury’s deliberations because it had been filmed by prior arrangement. See id.





3. Judge Ryan said of the hold-out who had chosen to vote consistent with his conscience: “He just didn’t feel comfortable with what went on here, and so he’s interjecting his personal and moral beliefs into it, his—his conscience. And maybe... it was legally and rationally the wrong thing to do, but morally he is probably right.” Id. Judge Ryan acknowledged that there might possibly be a benefit to the nullifying juror who votes consistent with his conscience.

4. See, e.g., Taylor v. Louisiana, 419 U.S. 522, 530 (1975) (“The purpose of a jury is to guard against the exercise of arbitrary power—to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge.”); Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (“Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”).

5. See Nancy S. Marder, The Myth of the Nullifying Jury, 93 NW. U. L. REV. 877, 907–26 (1999) (describing a “process view” of the jury that focuses on the broad roles played by the modern jury).

6. See id. at 908–20 (describing the jury’s interpretive role).

7. See Stephen C. Yeazell, The New Jury and the Ancient Jury Conflict, 1990 U. CHI. LEGAL F.

87, 113–14 (describing the ways in which the jury helped to shape the law in the areas of negligence and products liability).

8. See Marder, supra note 5, at 921–25.

2002] JURIES, JUSTICE & MULTICULTURALISM 661 The jury also serves several populist functions. As Alexis de Tocqueville presciently remarked about the jury more than 150 years ago, the jury serves as a “free school,” educating the citizenry about democracy and the responsibilities of self-governance.9 Serving on a jury and voting are the two opportunities for citizens to participate directly in their government.

Direct participation through jury service takes on special meaning for those members of society, such as African-American men and all women, who were long excluded from jury service, first by law and then by practice, and who only recently have secured their rightful places on the jury.10 Only twenty-five years ago, in Taylor v. Louisiana,11 the Supreme Court held that the exclusion of women from the venire violated a defendant’s Sixth Amendment right to a jury drawn from a fair cross section of the community.

After Taylor, devices such as affirmative registration, which had kept women from being summoned for jury venires in numbers proportionate to their numbers in the community, had to be discarded.

The jury also plays a key role, along with judges, in constituting the judiciary. As an institution consisting of ordinary citizens temporarily called to serve a governmental function, the jury is able to dispel popular distrust of the judiciary and to secure community acceptance for verdicts, even verdicts that are highly contentious and that may be seen differently by different communities.

The jury’s populist roles—teaching jurors lessons in democracy, signalling full citizenship, and inspiring community acceptance of verdicts—have expanded as jury service has become more inclusive. Only fifteen years ago, in Batson v. Kentucky,12 the Supreme Court returned to the subject of peremptory challenges—a subject that it had addressed twenty years earlier in Swain v. Alabama,13—and recognized that peremptories were still being used by prosecutors to keep AfricanAmerican men from serving on petit juries. With Batson, prosecutors could no longer exercise peremptories based on race and a defendant no longer had to show that the prosecutor was exercising discriminatory peremptories in case after case, as the Supreme Court had earlier

–  –  –

established in Swain.14 Rather, Batson permitted a showing based on the defendant’s case alone to suffice. Over the past decade, the Supreme Court has expanded the scope of Batson so that now no party can exercise peremptories on the basis of race,15 ethnicity,16 or gender17 in civil18 or criminal cases.19 At least theoretically, the peremptory challenge no longer can be used to keep members of racial or ethnic minorities or women of any color from serving on petit juries.20 The opening up of the jury has changed some of the lessons that the jury system now teaches about citizenship and participation. One lesson is that jury service is no longer limited to an elite. Groups that traditionally have been excluded are now to be included. The members of these groups are full citizens and their participation on the jury is assumed. A second lesson is that expectations about what a jury should look like have changed. If there is to be broad community acceptance of a jury’s verdict, then the jury must be seen as drawing its members from the entire community.21 Although any given petit jury of twelve may not be representative of the community, in general the more representative juries are, the more likely there will be community acceptance of verdicts.

Now that jury service is open to many who have been excluded in the past, and consequently, the jury has the potential to be truly diverse, it is worth considering what differences a diverse jury can make to the jury’s

14. Batson, 476 U.S. at 92–93 (describing the burden required of defendants after Swain as “crippling,” thus leaving prosecutors’ peremptory challenges “largely immune from constitutional scrutiny”).

15. See Georgia v. McCollum, 505 U.S. 42, 59 (1992) (prohibiting the defendant’s use of peremptories based on race); Batson, 476 U.S. at 86 (prohibiting the prosecutor’s use of peremptories based on race). See also Powers v. Ohio, 499 U.S. 400, 402–04 (1991) (establishing that white defendants can challenge a prosecutor’s use of a race-based peremptory challenge).

16. See Hernandez v. New York, 500 U.S. 352, 358 (1991) (recognizing that peremptories cannot be exercised on the basis of ethnicity, though in this case the defendant failed to establish a prima facie case).

17. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) (extending Batson to gender-based peremptory challenges).

18. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616 (1991) (holding that private litigants in a civil suit cannot use peremptory challenges to exclude jurors on account of their race).

19. See sources cited supra notes 15–16.

20. The Court’s efforts notwithstanding, discriminatory peremptories persist. See, e.g., Minetos v.

City Univ., 925 F. Supp. 177, 185 (S.D.N.Y. 1996) (“It is time to put an end to this charade. We have now had enough judicial experience with the Batson test to know that it does not truly unmask racial discrimination.”); Developments—The Civil Jury, 110 HARV. L. REV. 1408, 1462 & nn.177–78 (1997).

21. See Nancy S. Marder, The Interplay of Race and False Claims of Jury Nullification, 32 U. MICH. J.L. REFORM. 285 (1999) (describing two cases in which the juries were largely homogeneous and the verdicts were criticized by various communities and subjected to charges of jury nullification).

2002] JURIES, JUSTICE & MULTICULTURALISM 663 deliberations.22 Some would argue that diversity should make no difference.



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