The Jury in America: Triumph and Decline

by Dennis Hale

Overview

The jury trial is one of the formative elements of American government, vitally important even when Americans were still colonial subjects of Great Britain. When the founding generation enshrined the jury in the Constitution and Bill of Rights, they were not inventing something new, but protecting something old: one of the traditional and essential rights of all free men. Judgment by an “impartial jury” would henceforth put citizen panels at the very heart of the American legal order. And yet at the dawn of the 21st century, juries resolve just two percent of the nation's legal cases and critics warn that the jury is “vanishing” from both the criminal and civil courts. The jury's critics point to sensational jury trials like those in the O. J. Simpson and Menendez cases, and conclude that the disappearance of the jury is no great loss. The jury’s defenders, from journeyman trial lawyers to members of the Supreme Court, take a different view, warning that the disappearance of the jury trial would be a profound loss.

In The Jury in America, a work that deftly combines legal history, political analysis, and storytelling, Dennis Hale takes us to the very heart of this debate to show us what the American jury system was, what it has become, and what the changes in the jury system tell us about our common political and civic life. Because the jury is so old, continuously present in the life of the American republic, it can act as a mirror, reflecting the changes going on around it. And yet because the jury is embedded in the Constitution, it has held on to its original shape more stubbornly than almost any other element in the American regime. Looking back to juries at the time of America’s founding, and forward to the fraught and diminished juries of our day, Hale traces a transformation in our understanding of ideas about sedition, race relations, negligence, expertise, the responsibilities of citizenship, and what it means to be a citizen who is “good and true” and therefore suited to the difficult tasks of judgment.

Criminal and civil trials and the jury decisions that result from them involve the most fundamental questions of right, and so go to the core of what makes the nation what it is. In this light, in conclusion, Hale considers four controversial modern trials for what they can tell us about what a jury is, and about the fate of republican government in America today.

Product Details

ISBN-13:	9780700622009
Publisher:	University Press of Kansas
Publication date:	02/03/2016
Series:	American Political Thought
Pages:	478
Product dimensions:	6.40(w) x 9.20(h) x 1.40(d)

About the Author

Dennis Hale is associate professor of political science at Boston College.

Table of Contents

Preface and Acknowledgments xiii

Introduction: The Paradoxical Jury 1

1 The Common-Law Jury in England and the Colonies 5

The Premodern Jury 5

The Palladium of Our Liberties 18

The Jury in Colonial America 28

Virginia 32

New York 37

Massachusetts 44

2 The Republican Jury 59

The Heritage of the Common-Law Jury 59

The Jury in the States 66

The Constitutional Debate on the Jury System 68

The Jury Debate in the Ratifying Conventions 70

Publius on the Jury 78

The Congressional Debate on Civil Juries 84

The Jury as a Political Institution 89

Republican Schoolmasters and Republican Citizens 93

The Sedition Act Trials 98

Jury Selection 107

Bench, Bar, and Jury: The Massachusetts Record 113

The Law and the Facts 131

3 The Modern Jury 140

The Changing Nineteenth-Century Jury 140

Democratization of the Franchise 140

Emergence of a Professional Bar 142

New View of the Judge-Jury Relationship 143

Increase in Complex Commercial Disputes 144

Emergence and Triumph of Progressive Legal Doctrines 145

Decline in the Popular Image of the Jury System 146

The "Crisis" of the Modern Jury 147

The Inefficient Jury in an Age of Reform 162

Jury Reform and the American Bar Association 166

Procedural Reform and the Jury System 174

The Merger of Law and Equity 181

Federalism and the Campaign for Uniformity 186

Race, Class, Gender: Inventing the Representative Jury 193

Centralizing Jury Selection 206

The Civil Rights Act of 1957 214

4 The Postmodern Jury 217

Who Is Qualified? 217

The Campaign against the Key-Man System 224

The Jury Selection and Service Act of 1968 236

The Modem Regime of Jury Selection 244

Which Groups Are Protected? 249

How Can Sixth Amendment or Equal Protection Violations Be Recognized? 250

What Sources Must Jury Officials Use in Composing the Venire? 252

Jury Selection and Race 256

The Batson Revolution 261

Jury Service and Gender 267

The Post-Batson Court 276

Paper Chase: The Law Journals Search for the Perfect Jury 279

The American Bar Association and the Postmodern Jury 287

The Jury Problem, Redux 291

The Science of Jury Consulting 298

Finding the Law, or Nullifying the Law? 304

Voir Dire, Peremptory Challenges, and Postmodern Jury Selection 314

Understanding the Consequences of Reform 324

5 The Vanishing Jury 327

The Trial Implosion 327

Explaining the Vanishing Jury 335

The Changing Nature of the Business of the Courts 336

Rule 23 Class Actions 338

Increasingly Complex Civil Litigation 340

More Laws and More Regulations 341

Busier State Courts 342

Removals from State Court to Federal Court 343

The Federalization of Crime 343

Sentencing Reform 346

More Lawyers 348

Vanishing Trials and the Revolution in the Courts 348

Sentencing Reform and the Vanishing Criminal Jury 365

Does the Vanishing Trial Matter? 376

Four Modem Trials 383

Apple Computer, Inc. v. Samsung Electronics Corp. 384

State of Florida v. George Zimmerman 388

Liebeck v. McDonald's Restaurants 394

Commonwealth of Massachusetts v. Louise Woodward 398

Conclusion 404

Bibliography 417

Index 441

Editorial Reviews

"This book is a superb contribution to the study of the jury system and breaks new ground in our understanding of the success and failure of the revered institution of jury trial in America. . . . All those who are interested in the jury system should read this extraordinary work, as well as anyone who wishes to engage in serious debates on the jury system’s democratic functions, its impact on the justice system, and its sociopolitical influences in society."—H-Net Reviews

"The Jury in America is an excellent historical examination of American juries. The book does an excellent job of examining how the political role of juries has changed."—Law and Politics Book Review

"Hale has written an extensive, thorough volume on the an institution important enough to the founders that it is mentioned numerous times in the original US Constitution and Bill of Rights. Hale examines the origins of juries in English common law and their evolution during the Colonial period up and through the modern and postmodern periods. The combination of history, political science, and law here is masterful and the book is highly recommended."—Choice

“The Jury in America is an indispensable contribution to understanding a vital institution, one that once embodied real responsibilities in the hands of the governed as an antidote to a stifling centralization of democracy. Dennis Hale’s compelling work bears out Tocqueville’s fear that a more administrative, less political regime would curtail the people’s ability to make defensible judgments on matters that are inherently uncertain.” —Norma Thompson, author of Unreasonable Doubt: Circumstantial Evidence and the Art of Judgment

"Dennis Hale brings the broad vision of a gifted political theorist to assess the significance of the jury in American life, both its past centrality and its more recent marginalization. This important book provides an acute, detailed, and balanced judgment on all the central issues."—Robert P. Burns, author of A Theory of the Trial and The Death of the American Trial

“Dennis Hale calls to our attention the American jury, an institution that has endured for centuries. In spite of its robust democratic credentials, the American jury is too often overlooked by democratic theorists, dismissed by legal scholars, and discredited by political leaders. Hale’s account explains how trial by jury could wither in the US, even while new jury systems bloom in countries as disparate as South Korea and Argentina. The American jury could rise again, however, if we read The Jury in America to better understand our nation’s legal and cultural history, which shaped how jurors are chosen, how evidence gets presented and weighed, and how juries deliberate and reach verdicts. If Hale and others who have recently celebrated the American jury fail in this respect, a nation will have discarded an institution that our founders placed not only in the original US Constitution but also in three of its first ten amendments.”—John Gastil, Director, McCourtney Institute for Democracy, Penn State University

From the Publisher