Jury service provides a unique opportunity for an American citizen to be a judge. Over a million Americans serve as jurors each year. Like the right to vote and influence government generally in legislative, executive and judicial elections, a jury influences the judicial process in an even more dramatic way. While a judge presides over a jury trial much in the same way that an umpire calls what's in and what's out, it is the jury who ultimately controls who wins or loses the contest. Accordingly, the jurors have considerably more impact in the trial than the presiding judges.
In the American system of dispute resolution among its citizens, the jury reigns supreme. The founding fathers adopted the British model that put a human face on justice to allow one's neighbors to settle disputes. In the United States, juries are assembled for almost every conceivable case. Many democratic countries have abandoned the jury system in whole or in part. Israel and Japan have no juries. Great Britain, which under Henry II designed the jury as we know it, has virtually eliminated civil juries and only uses them in selected criminal cases.
A juror sits in criminal and civil judgment of his or her neighbors. When a criminal defendant cannot work out a plea agreement with the state, when civil defendants cannot agree on damages, it is usually the jury that must resolve what legal professionals could not. In criminal cases, a jury has to resolve charges that impact liberty and in some cases life and death. In civil cases, a jury makes judgments that affect the economic, social and political life of the parties. The jury is the sole interpreter of the facts that have been admitted into evidence and the sole judge of the credibility of the witnesses. Except for the court's instructions, more often than not fashioned in complicated legal language, jurors are given little guidance on how to do this. They are often left only with their common sense and experience.
Judges are constantly amazed at what juries do and the sacrifices they make. When a jury is being selected during a process known as voir dire (to tell the truth), judges are confronted with a large number of prospective jurors who would rather be somewhere else. In Prince George's County, prospective jurors are randomly selected from a list of registered voters for one- to three-day service. When they learn during the voir dire that a trial may last more than one day, their plans for one-day service are disrupted. They have made arrangements for caregivers and doctor appointments. Some have vacation plans, airline tickets, pressing needs at work and student tests. Private-sector employees whose employers do not continue their pay for their jury service and the self-employed lose far more than the meager $15 per day they receive from the court. Many prospective jurors in criminal cases fear reprisals, have religious scruples about sitting in judgment of others, and are themselves victims of and witnesses to crimes and cannot set aside their memories and prejudices. The voir dire process tries to sort out some of this with a view to discover jurors who may have serious problems or conflicts of interest in the case. Some jurors are excused for cause and others are excused by the litigants, who may strike without cause four jurors in civil cases and larger numbers depending on the nature of the crime in criminal cases.
After the panel is chosen, the jury takes on a life of its own. There are six jurors on a civil panel, 12 on a criminal panel and usually an alternate or backup juror or two. At the outset, they are instructed to rely on their collective memories and advised that they will not get a transcript of testimony. It is my observation that they [are] substantially focused on the proceeding and seem to notice everything. They usually sense what happens in the bench conferences that take place in front of them but out of earshot. They listen attentively to the judge's instructions knowing full well that it is they, and not the judge, who will ultimately decide the case. When the case is over, they deliberate mindful of their oath to be fair and impartial.
In post-trial interviews, jurors almost always say they like their experience and have learned something from their service. They are less enthusiastic when they have been unable to reach a verdict and the case ends in a mistrial. After lengthy trials, they often exchange phone numbers and remain friends. They also realize, perhaps for the first time, their significant and direct impact on the judicial process. The jury, in the words of Alexis de Tocqueville, is a "free school which is always open and in which each juror learns his rights . . . and is given practical lessons in the law." They learn how the judicial branch of their government works and their role in it. In criminal cases, they learn about law enforcement, hear expert witnesses in ballistics, handwriting, DNA and fingerprinting. In civil cases, they learn about the issues that confront the commercial and industrial community, they hear expert witnesses discuss medicine and receive many other practical lessons in the law.
When the bailiff asks the courtroom to rise, it is out of respect for justice that is more often represented by the jury than the judge. In my view from the bench, jurors too should be wearing robes.
James J. Lombardi
Judge, Prince George's County Circuit Court
CAPTION: Judge James J. Lombardi praises jurors.