International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2016 Issue

Special Report


The Myth of the American Jury

Suja A. Thomas
By: Suja A. Thomas, Professor of Law, University of Illinois College of Law

The American jury has a certain aura internationally. Many people view the jury as a bad part of American exceptionalism. They think that juries decide lots of cases and make many bad decisions: they find people innocent who are not, and in civil matters, they unjustly award significant sums. The most prominent criminal and civil examples are the O.J. Simpson and McDonalds cases. In the Simpson case, with a large international audience watching, the jury acquitted Simpson despite significant evidence that he murdered his wife and her acquaintance. In the McDonalds case, the jury awarded $2.7 million in punitive damages to Stella Liebeck when she was burned by McDonalds’ coffee.

Notwithstanding these perceptions of American exceptionalism, decision-making in the United States is actually much more similar to the processes in many other countries than one might think. Also, in some circumstances, lay participation in other countries is more vibrant than in the United States. As described more below, American juries do not decide many cases, and judges can exercise a lot of control over their verdicts.

I want to note that the American jury does possess unique characteristics. Under the United States’ Constitution, three different juries have authority to decide who can be prosecuted, who will be sent to prison, and who is liable for damages to another. The Fifth Amendment gives the grand jury the power to decide whether the government can proceed with a criminal charge against a person. Article III gives the jury the power to decide whether a criminal defendant—who is subject to more than six months in prison—goes to prison. Finally, the Seventh Amendment provides that where a person alleges a wrong and monetary injury, a jury has constitutional authority to decide if damages should be awarded, and how much.

Despite these vibrant grants of power to lay people in the United States’ Constitution, the American jury has little authority. First, like in other countries, in the United States, lay people actually participate in few cases. In both the federal and state courts, they decide just 1-5% of criminal cases and less than 1% of civil cases. In criminal cases, a prosecutor almost invariably persuades a criminal defendant to take a plea to a charge instead of a jury trial. The prosecutor often tells the defendant that if he takes the jury trial, he will be tried on a different charge that will result in a greater sentence. So, defendants plead guilty in more than 95% of cases.

In civil cases, a judge can use a procedure called “summary judgment” to dismiss a case before a jury trial. After a party requests dismissal, the judge decides whether a reasonable jury could find in favor of the plaintiff who brought the case. If the judge determines a jury could not find for her, he dismisses the case without giving it to a jury to decide. Using this procedure, employers ask judges to dismiss almost every case in which an employee alleges discrimination, and judges grant over 70% of these requests—even though these cases tend to be factually intense.

In addition to criminal and civil juries deciding few cases, grand juries participate in a minority of the cases in the state courts, because most states do not require grand juries to decide whether a criminal case proceeds against a defendant.

In addition to juries deciding few cases in the United States, in some circumstances, when a jury actually decides a case, a judge can decide not to accept the verdict. Before or even after a jury convicts, a judge can decide that a reasonable jury could not convict a criminal defendant and dismiss the case against the defendant.

Similarly, in civil cases, after a jury finds for one party, a judge can decide that a reasonable jury could not have found for that party and can decide the other party should win. Once a jury has rendered a verdict in a civil case, instead of dismissing the case, a judge has the option to change the verdict. She can decide that the damages that the jury awarded were excessive and reduce the damages. The plaintiff can take the reduced amount or take a new trial. Alternatively, the plaintiff may settle for an amount larger than the judge-reduced amount. However, neither a new trial nor settlement is generally realistic for the plaintiff. The judge often has stated the maximum damages that she thinks a reasonable jury could have rendered. Because the judge may reduce any new verdict after the second trial, the plaintiff is unlikely to accept a new trial or unlikely to be able to settle at a higher number than the reduced amount.

Thus, unlike the perceptions of many people of the jury in the United States, the American jury has insignificant authority. In my book, The Missing American Jury, I explore why juries decide few criminal and civil cases and examine why even when cases proceed to juries, their decisions are usurped. While I recognize that some civil cases are decided in arbitration and some are settled, I discuss how criminal, civil, and grand juries have disappeared largely due to the shift away from juries to prosecutors, legislators, and judges.

Historically, the jury set forth in the United States Constitution was based on the late eighteenth-century English jury. In criminal cases, the English jury held much authority. It decided serious criminal cases. Grand juries decided whether cases should proceed to a petit or trial jury, and the petit jury decided whether the defendant was guilty. In this atmosphere, there were many trials and plea-bargaining did not occur. Moreover, while a judge could advise the jury on what he thought should occur and also ask the jury to reconsider its verdict, the jury ultimately decided—although the judge could also recommend a reprieve.

In addition to power in criminal cases, in civil cases, juries held much power in late 18th Century England. Juries decided cases in which damages were available. Before a jury decided a case, courts had limited authority to dismiss the case. Before or during the trial, a party could request the court to determine whether there was a claim under the law. This question was truly an issue of law, not one of fact. The party


accepted as true all facts/evidence and any conclusions from the facts/evidence, including that which was improbable. If the court decided that there was a claim, the party won the case, and if it decided that there was no claim, the party lost the case.

Juries decided most cases. After a jury verdict, a court held limited authority. A court could order a new trial if it thought there was insufficient evidence to support the verdict. However, if another jury found for the same party, the court would not disturb the verdict. The court also could question damages in cases—such as contract cases—in which certain damages were awarded. In those cases, the court could order a new trial if it deemed the damages excessive. Again, if the second jury found the same amount of damages, the verdict would stand.

As already described, the American jury is now much different than its English predecessor. Some have argued that the English jury should not serve as the model for the American jury. After all, the English eliminated that system. However, the American Constitution was based on the English system. Moreover, unlike the English system, which could be changed by Parliament, the constitutional authority of the jury cannot be taken away without a constitutional amendment.

In the past, the American jury was much more similar to the English jury. In fact, in a series of cases in the early years of the United States, the Supreme Court decided the jury had significant power under the Constitution. Later, however, it determined that other bodies held power over the jury or shared authority with the jury. For example, the Supreme Court initially decided judges could not decide criminal cases instead of juries. After some years passed, the Court decided to permit defendants to choose a judge instead of a jury. Similarly, the Supreme Court first decided that once a jury decided for one party in a civil case, a judge could not decide for the other party. Subsequently, however, the Court held that a judge could decide against the party that the jury favored.

Essentially, the jury in the United States has become an advisory jury, in some ways comparable to the systems in China and in Iran. Unlike in those countries, however, the Constitution in the United States grants the jury power in three different provisions and does not grant judges or other governmental bodies significant authority over them. But over time, prosecutors, legislators, and judges have taken away the American jury’s authority.

Despite the myth of the powerful American jury, other countries like France arguably have more vibrant lay participation in the cases in which lay jurors sit (even though in the United States lay participation is theoretically available in more types of cases). For example, in France, plea bargaining does not exist for cases eligible for jury trial. A mixed panel of three judges and six lay people decides guilt and also participates in sentencing (in which jurors in the United States do not participate). Moreover, another panel of three judges and nine lay people can review the case de novo on appeal.

My book argues that the jury should be restored in the United States because it was intended to serve as a check on prosecutors, legislators, and judges. I further assert that the jury is the right body to decide questions of whether someone committed a crime or whether damages should be paid to another.

Research has shown that judges and jurors share many characteristics including the inability to ignore inadmissible evidence and certain irrelevant information. Judges have additional characteristics that make them less competent to decide. Unlike jurors, who are screened by others for their bias, judges screen themselves. Recently self-screening led a judge to act improperly. Years earlier, as a prosecutor, this person had recommended the death penalty in a case. Later, he sat as the chief justice on the highest court of the state, which considered whether the death penalty should be reinstated in the case. Despite the obvious conflict, the judge refused to recuse himself and decided to reinstate the death penalty.

In addition to the conflict of screening their own biases, judges, unlike lay jurors, have incentives that may interfere with their decisions. For example, if a judge is subject to re-election, the judge may decide in a certain way to be re-elected. In the previously mentioned case, the judge had campaigned as being tough on crime and enforcing the death penalty. Also, judges, unlike jurors, may face some of the same parties repeatedly and may favor or be biased against them. Similar to judges, the executive and the legislature—have similar biases and incentives that jurors do not possess. Moreover, for the most part, there is little screening for such biases and incentives, and if so, these governmental departments self-regulate.

Although the jury is imperfect, it is the best body to decide most criminal and civil matters. The power of the jury is even exhibited in the criticized O.J. Simpson and McDonalds cases. In the Simpson case, the prosecution had a tough case that was marred by mistakes in who was permitted to examine the crime scene as well as how they presented the evidence. All of this was in an atmosphere of racial tension in Los Angeles. The case showed that prosecutors would be put to the task of proving their cases. In connection with this, if a jury had not tried the case, the racist protagonist Mark Fuhrman who had examined the crime scene likely would not have been discovered.

The McDonalds case was also important. The documentary Hot Coffee exposed the number of complaints that McDonalds had fielded before this incident and the significant injuries, including the possibility of death, that the plaintiff experienced. If a jury had not decided the case, McDonalds would not have been held responsible for its actions in the same way that public exposure provided. For these reasons, my book, The Missing American Jury, argues that the jury should be restored in the United States, and it should also play a more vibrant role in many other countries.

(Note: Professor Thomas is the author of The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries (Cambridge University Press. 2016))

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© 2016 – The International Judicial Academy
with assistance from the American Society of International Law.

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