American Jury System, The

Justice System Journal, 2005 by Munsterman, G Thomas

The American Jury System, by Randolph N. Jonakait. New Haven: Yale University Press, 2003. 346 pp.

Professor Jonakait of the New York Law School has written a serious examination, or perhaps I should call it an exploration, of The American Jury System. An educated lay audience is the book's audience, although a non-layperson will find a great deal of interest in it. The content of the twenty chapters is quite detailed. We find, for instance, an entire chapter on peremptory challenges followed by another chapter on challenges for cause. There is one chapter on vicinage, another on jury instructions, and still another on nullification. A student interested in these topics would do well to use these chapters to get a serious introduction and then head to the Internet and other sources to dig more deeply.

Before we ever get to the details, the first nine chapters examine the role and position of the jury in our society. Here are chapters on the jury checking abuses of power and community values linked with chapters on jury unanimity and diversitytwo characteristics that give the jury its power and jury verdicts their acceptability. These early chapters are enriched with many quotes from the often-ignored first-person literature about jurors. Hearing what actual jurors say is always interesting, whether in texts, on panels, or from neighbors, perhaps because we just do not like hearsay.

The author is very supportive of the jury system and does not adopt any reform position except to consider those methods that help jurors understand the evidence. This is a difficult position to oppose. All reforms discussed are presented in a well-balanced fashion, but the author is speaking as an in-court advocate ever concerned with preserving the verdict. References to legal systems, and especially to jury systems, in other countries are made in a contemporary sense, to provide more than a historical perspective to our nation's use of the jury. In support of the jury system, Jonakait briefly examines how so many countries do without juries. I wish he had included a discussion of those countries, such as Spain and Russia, that are now once again using the jury system and their movement from a civil-law toward a common-law forum.

I was pleased to see the author get into some of the unsavory aspects of jury service, such as pretrial investigations of prospective jurors. Although the author does not discuss more recent developments like "Googling," perhaps because of the publication date of 2003 (which means the work was probably completed before 2002), Internet searches of jurors are now generally acceptable. The issue is not so much privacy as whether the source of pretrial investigation of jurors is private or public, with the latter being primarily state and federal criminal databases.

The author also provides a chapter on "scientific" jury selection, placing the term in quotes. He proposes a reduction in peremptory challenges as a compromise between those opposed to trial consultants and those who favor their use. As a reduction in peremptory challenges is not a popular position, I do not give this idea much hope, although pre-Batson jury standards called for more modest numbers of challenges to reduce the possibility of mischief.

Somewhere I have read that a good book teaches us about ourselves as well as about the subject. In this regard, I was taken with how much we in the court administration field have done with the jury system, which we have not made known to the rest of the justice or legal communities. The author is a legal practitioner whose previous writings have been about forensic science and its impact in the courtroom, as well as about criminal procedure and evidence. He did his research well in the law reviews and caselaw but he did not go beyond them; little if any of the work from within the courts or organized bar is mentioned, even though many of these works are major publications. There is nothing about the American Bar Association, whose Criminal Justice and Litigation sections and Judicial Administration Division have all published jury standards.

In the last chapter, on reforms, there is no mention of the work undertaken in many states. Most surprising is the lack of any acknowledgment of the 1994 report of the New York Jury Project and the many reforms that were in place when this book was written; likewise, there is no mention of the 1994 Arizona study or the 1996 California Blue Ribbon Commission report. These studies offered recommendations that would fall into the areas of discussion found in the book. Permitting jurors to take notes, to submit questions to witnesses, and to discuss evidence before deliberation are mentioned in the text, but the references are to a few law review articles, not to the state reports, which are the sources of innovation on these matters. To bring these changes in court administration to the legal community, should we publish more in law reviews and bar journals?

Another self-realization came as to the excellent research on the jury system now being carried out and also how little exists for an institution as old and honorable as the jury. For instance, when I read the chapter on peremptory challenges and on the reactions of jurors to be challenged, I looked forward to discussion of the work by Mary Rose, now of the University of Texas. Although that work was published in 2001, there is no mention of it. The thought that one paper from one research project would be so necessary and illuminating points out how fragile our present knowledge is of the jury process.