Community Conscience

Trial by jury is a relative rarity throughout the world. Apart from English-speaking countries, it exists in Austria, Belgium, Denmark, Greece, Norway and some Swiss cantons. Indeed, 80% of the world's criminal jury trials take place in the U.S. Even at that, because most defendants plead guilty and forgo trial or choose to be tried by a judge alone, the U.S. actually produces only 60,000 criminal jury trials a year. Moreover, the frequency of jury trials varies widely--from only three per 100,000 people in Connecticut, to 144 in Georgia.

Never compiled until now, such fascinating statistics festoon The American Jury (Little, Brown; $15), a monumental new study by University of Chicago Law Professors Harry Kalven Jr. and Hans Zeisel. Far from content with statistics, the authors have also tackled a crucial question: how well or badly does the jury perform?

Subjective Strength. British Philosopher Herbert Spencer once described a jury as "a group of twelve people of average ignorance." U.S. critics point out that the people best qualified to serve--clergymen, lawyers, doctors, newsmen--are precisely the ones exempted. Some judges complain that juries, either through dumbness or perversity, ignore instructions and promote government by men rather than laws. For 13 years, Authors Kalven and Zeisel have probed such complaints through the Ford Foundation-financed Universi ty of Chicago Jury Project--even to the extent of once bugging a Wichita jury room and scandalizing Congress in the process. Now, after questioning 550 judges who presided over 3,576 jury trials across the country, the authors conclude that the freedom of a jury to inject its own sense of justice is one of the greatest strengths of the system.

In a surprising 75% of the trials, judge and jury actually agreed on the verdict. In the other 25%, partly because defendants chose jury trials in hopes of better deals, the jury disagreed massively in the direction of leniency. Judges, in fact, mete out death sentences considerably more often than juries. To those who demand ever stiffer jail sentences, the authors point out that wherever the law permits harshness, juries are most reluctant to return guilty verdicts.

Free Everyone. Unlike judges, juries tend to feel that a cured harm is no harm, as when a defendant returns stolen money; they resist penalizing a defendant who corrupts the already corrupted, as in the statutory rape of an unchaste girl. In repeated cases of indecent exposure, a jury tends to convict if the victim is a child, to acquit if the victim is an adult woman.

In their comments on the cases tried before them, the 550 judges involved in the study very often believed they were able to spot what moved the jury, without necessarily yielding to it themselves. In a case where an obviously guilty defendant, tried without counsel, was acquitted, the judge reported that a juror told him: "Until the state provides a public defender, I will let everyone go free." Statistically, the judges thought that only 2% of the cases tried were "very difficult" for juries to handle; only 9% of the verdicts seemed to them "without merit." The most lenient juries for serious crimes are found in small, Midwestern towns; the most harsh in medium-sized Eastern cities.

Redeeming Humor. On occasion, a jury decides that a crime may entail its own punishment, which the authors find a "profound but disturbing idea." One jury acquitted a defendant who fired a shot into the home of his estranged wife and was badly wounded by return fire; as the judge said, "the jury felt since the only person hurt was the defendant himself, they could not punish him further." Another jury refused to convict a young airman of negligent auto homicide; since the victim was his intended bride, the jury saw his loss as sufficient punishment.

Juries seem to lend the law a saving sense of humor, as in the case of a defendant who came upon a police car with its motor running, removed the key and coolly watched for ten minutes as the returning police frantically hunted. The jury thought it was too funny for a verdict of malicious mischief. Another jury acquitted a public employee who had admittedly bribed his boss to get a better job. Since he had been heartily recommended for promotion by his immediate superior, the jury figured that the bribe was merely a necessary expense to get it.

Plebeian Perception. Jurors tend to generalize from their own experience, observing in exculpation of a defendant that "people drink a good deal at Polish weddings," or discounting an expert prosecution witness with the comment that "the very inability of the doctor to find anything wrong with a person's back is really good evidence that there is something seriously wrong." Such perception, say the authors, is one of the jury's "most engaging and flavorsome characteristics."

Juries can so dislike defendants that they become vindictive. In a case concerning the murder of one fisherman by another in a drunken brawl, the jury was obviously revolted that the pair had engaged in homosexual acts before the fight. It found the defendant guilty of murder, where the judge would have found for manslaughter. Another troubling fact is that some juries, notably in the South, will acquit to show contempt for the defendant and his victim, as when both are Negroes or Indians.

On the healthier theory that the law should not concern itself with trifles, juries also tend to acquit defendants who have engaged in such minor affairs as one-punch fights or the theft of small change. Jurors often suspect police testimony, rarely regard gambling as illegal and recoil from pinning a criminal label on conduct in which they might themselves engage, such as driving after having a few drinks. More often than a judge, a juror is apt to say, "There, but for the grace of God, go I."

Pressure for Equity. With few exceptions, say the authors, the jury's first ballot is usually taken before any discussion--and decides the outcome of the verdict. Whatever discussion follows is actually the method by which group pressures produce a consensus. Even so, the authors believe that juries provide the pressure that bends the law toward equity, and they generally applaud the results. What is most evident is the fact that Americans still live in a society that prefers to let ten guilty go free rather than risk convicting one innocent man. "The jury," say the authors, "as an expression of the community's conscience, interprets this norm more generously and more intensely than does the judge."

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