The Jury Is Still Out: The Role of Jury Science in the Modern American Courtroom
Barber, Jeremy W., American Criminal Law Review
I. INTRODUCTION 1226 II. THREE HISTORICAL RATIONALES FOR JURY TRIALS 1227 A. The Sixth Amendment Impartial Jury Mandate 1227 B. A Jury of One's Peers 1228 C. Juries as a Bulwark of Democracy 1229 III. JURY SCIENCE 1230 A. The Origin and Evolution of Jury Science 1232 B. What is Jury Science? 1234 1. Ranking Scales 1235 2. Community Attitudinal Surveys 1235 3. Juror Investigations 1236 4. In-Court Assessment of Juror Non-Verbal Communication. 1236 5. Group Dynamics Analysis 1237 6. Focus Groups 1237 7. Mock Trial 1237 8. Shadow Juries 1238 C. Negative and Positive Aspects of Jury Science 1239 1. Concerns Raised by Jury Science 1239 2. Benefits of Jury Science 1243 D. Managing a Jury System That Relies on Jury Science 1245 1. Equal Access to Data 1245 2. State Funding for Indigent Defendants 1245 3. Prohibit the Use of Jury Science 1246 4. Judge-Conducted Voir Dire or Abolition of Peremptory Challenges 1246 5. Attack Structural Biases in Jury Selection 1247 6. Disclosure of Use of Jury Science 1247 7. Maintain the Status Quo 1247 IV. JURY SCIENCE AND THE FAIRNESS OF THE JURY SYSTEM 1248 A. An Analytic Framework 1248 B. Reconciling Jury Science with the Rationales for Jury Trials 1249 1. The Sixth Amendment's Impartial Jury Mandate 1249 2. A Jury of One's Peers 1249 C. Resolving the Impartiality/Peer Tension 1250 D. Juries as a Bulwark of Democracy 1250 V. CONCLUSION 1251
"Never forget, almost every case has been won or lost when the jury is sworn."(1)
In the aftermath of the Rodney King and Reginald Denny trials and in the lengthening shadow of astronomical jury product liability awards, the American jury has come under increasing examination and assault. Despite all of this attention on the jury as an institution, there is little debate about jury science, a phenomenon that has ballooned over the past twenty years and threatens to undermine the basic values of our jury system. Many questions surround this science which, today, shapes many major trials. Where did it come from? What are its implications for the fundamental assumptions and models of American jury trials? And why has the science escaped public scrutiny?
This Note will first explore three distinct historical justifications for jury trials. Two of these rationales(2) appear to be irreconcilable.(3) This Note will analyze the tension between the ideals of an impartial jury and a jury of one's peers and discuss the effect of jury science on these values. The Note then will trace the evolution of jury science;(4) examine what this science accomplishes and where it is used; analyze the arguments for and against the use of jury science; and make limited recommendations about how best to manage a jury system which increasingly makes use of and relies on this science. …