The Jury Is Still Out: The Role of Jury Science in the Modern American Courtroom

By Barber, Jeremy W. | American Criminal Law Review, Summer 1994 | Go to article overview

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)

I. INTRODUCTION

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. …

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