The Modern American Jury: A One Hundred Year Journey

Article excerpt

A robust body of empirical research on the jury emerged in Judicature's pages since Wigmore's early article nearly a century ago, yet important persisting jury questions and issues that even Wigmore could not anticipate call for AJS and Judicature's continued focus on the jury.

Scholars often begin their account of the jury in England with the peers of the Magna Carta or in colonial America with the male property owners who were summoned to decide a case because they were familiar with the facts, acting as witnesses, investigators, and tribunal. In this article, we focus on the modern American jury, beginning in the early twentieth century and continuing to the present. We examine changes that have taken place in the modern era; track the progression of central debates and discussions over the jury's efficacy and value; and identify lessons learned over the past one hundred years. We chose this time frame for two reasons. First, focusing on this period allows us to show how much has changed-and how much has stayed the same-during the modern era. Second, the time frame underscores the key role that Judicature,1 celebrating the centennial of the American Judicature Society, has played in monitoring and assessing this century's developments.

The first issue of Judicature appeared in 1917, and the first article focusing on the jury was published in 1920. Judicature published 20 articles and other pieces on the jury during the 1920s, and its attention to the jury expanded over the years: The last decade of Judicature included 46 articles and other entries on the jury. Each of the past 30 years has included at least one entry on the jury, and over time the articles have increasingly become more empirically informed. The first empirical studies of the jury, appearing in the 1940s, were surveys of judges, jurors, and clerks,2 but by the 1970s, the articles in Judicature were reporting the results of field studies,3 archival analyses,4 mock jury experiments,5 and field experiments6 as well as surveys. This changing coverage in Judicature provides a rich reflection of the evolution of thinking and understanding about the American jury. We trace that history here, reflected in the pages of Judicature, and offer thoughts about the century to come.

We begin with a look at the jury a century ago as reflected in John Henry Wigmore's 1929 Judicature article, "A Program for the Trial of Jury Trial."7 Wigmore, who in 1904 had published what became the classic treatise on evidence,8 used his Judicature article to assess the debates of the day about the jury. He then offered his assessment of ways the jury trial should be reformed, concluding that "jury trial, properly reformed, is on the whole superior to judge trial."9 Some of the critiques of the jury that Wigmore attempted to evaluate have been addressed by empirical evidence that was not available to him in 1929; some claims remain the subject of vigorous debate today; and some issues affecting trial by jury have emerged since Wigmore wrote (e.g., the growth of scientific evidence and technological advances; the rise of social media). We consider the evidence on each.

When Wigmore wrote in 1929, the jury was under attack, a situation that may not sound unfamiliar: recall the furor following the acquittal of O.J. Simpson in 1995. The jury has always been a lightning rod, applauded when the verdict is popular, criticized as biased or incompetent when the verdict is not. In 1928, the unpopular verdict that stimulated public ire was the acquittal of Harry Sinclair for conspiracy to defraud the U.S. Government in the Teapot Dome Scandal. Commentators complained of jury incompetence (e.g., "those who are best fitted for jury service are either exempted, excused, or challenged")10 and judicial superiority ("[the judge] has acquired the ability to detect truth from falsity;"11 "[the judge] realizes that the eyes of the public are upon him and that he will be held strictly accountable for the correctness of his decisions")12 as grounds for the abolition of the criminal jury. …