An Impressive, Even Monumental Work

By Hoffman, Morris B. | Judicature, May/June 2008 | Go to article overview

An Impressive, Even Monumental Work


Hoffman, Morris B., Judicature


An impressive, even monumental work American Juries: The Verdict, by Neil Vidmar and Valerie P. Hans. Prometheus Books. 2007. 428 pages. $32.95.

by Morris B. Hoffman

Trial judges will be both enriched and maddened by this latest work by two of America's most heralded jury scholars. They will be enriched by having in a single volume a comprehensive survey of what their colleagues in courts all over the country do about some daunting problems, including how to do individual voir dire without having it consume an inordinate amount of time, and how to deal with pretrial publicity, expert witnesses, scientific evidence, and jury nullification. The book is also an empirical tour de force. Vidmar and Hans not only survey what judges and jurors do, but also what does and does not work.

But trial judges may also be maddened, as I was, by the authors' preoccupation with jury diversity, grounded, it seems, on an unwarranted and overly simplistic view of what it means to be "biased." The very premise of this popular academic notion-that members of a given race, ethnic group, or gender act not as individuals but as predictable members of that groupmay itself be racist and sexist.

Constitutional scholars may cringe at a few gaffes, including the assertion in the section defending peremptory challenges that they "appear" not to be required by the Constitution. Of course, the Court has not only ruled that peremptory challenges are NOT required by the Constitution, it has also held they are not an embedded part of the federal common law. Moreover, two Supreme Court justices have formally called for their abolition, Justice Marshall in Batson itself and, more recently, Justice Breyer in Miller-El.

The authors mix up the Fifth and Sixth Amendments once, and, more troubling, seem to treat the so-called "fair cross section" requirement of the Sixth Amendment as a canonical directive equating diversity with impartiality, when of course there is no textual basis in the Sixth Amendment for such an isomorphism. Impartiality means impartiality, and despite our country's wholly scandalous history of institutional racism and sexism, which clearly infected every aspect of the justice system, including the jury box, the fact is that individuals can and do act individually, and in the end there is no constitutional mandate (so far, thank goodness) for diversity in the jury itself.

Jury historians will also chafe at the impression left by the authors that the jury began from whole cloth in England at the time of the Conquest, when in fact forms of juries are as old as civilization itself, and English juries and protojuries trace their ancestry directly to the Franks and, before them, the Vikings.

But on balance these are nitpicking criticisms, which should not detract from this impressive, even monumental, work. After all, the book was not written just for trial judges, constitutional scholars, or jury historians. It was written for the public at large, whose character and values make the jury system work, and yet whose modern views about the system seem paradoxically so jaded. If my experience is any indication, prospective jurors regularly lament the inefficiencies and even inaccuracies of the jury system, complaining about McDonald's verdicts and criminal defendants getting off on "technicalities." Yet these people invariably have never been on a jury, and when they end up on one their views of the system are forever changed for the better.

This is the trial judge's Big Secret-the system works because it is populated by ordinary people who decide cases on the facts and not on which side has the celebrity lawyer, and it works even when those ordinary people have skeptical views of it, or have biases and prejudices. In a very fundamental sense, the trial is a process by which jurors transcend their biases and prejudices. It is not at all uncommon for jurors to express post-verdict sentiments such as "I didn't want to reach that result, but I felt compelled by my oath, the evidence and the law to do so. …

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