Vol. 14 No. 6 (June 2004), pp.389-392

THE AMERICAN JURY SYSTEM, by Randolph N. Jonakait.  New Haven:  Yale University Press, 2003.  384 pp.  Cloth $47.50.  ISBN: 0-300-09395-0.

Reviewed by Brian Pinaire, Department of Political Science, Lehigh University.  Email:  bkp2@lehigh.edu . 

“The jury system,” Mark Twain famously observed, “puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury.”  “I desire to tamper with the jury law,” Twain continued, “to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers” (pp.57-58).  In a society that is allegedly undergoing a “litigation explosion”—and thus one where juries play an increasingly significant role in the allocation (or redistribution) of resources, the (mis)application of law and order, and the rendering of (in)justice—many might reflexively agree with Twain’s cynical assessment.  Indeed, in the face of various recent high profile criminal trials (e.g. O.J. Simpson, Martha Stewart, Enron and Tyco Corporation executives) and civil actions (tobacco litigation, asbestos suits), juries have been criticized as being incapable of assessing technical data, biased against law enforcement or large corporations, exceedingly vulnerable to emotional appeals and slogans (“If the glove does not fit, you must acquit”), and, in essence, compelled to mediocrity by an adversary system that deliberately filters out intelligent and informed would-be jurors during the voir dire.   In THE AMERICAN JURY SYSTEM, Randolph Jonakait concedes as much and gives these concerns their due consideration—acknowledging the problems with the institution of the jury in principle and in practice—and yet he ultimately concludes that we have reason to be both proud and optimistic:  all things considered, the American jury system is in good shape and “works surprisingly well” (p.279). 

Jonakait, a Professor of Law at New York Law School, teaches courses in Criminal Law and Procedure and works with the Criminal Appellate Clinic, which he founded.  Before joining the faculty at New York Law School, Jonakait worked for many years in the Criminal Defense Division of the New York City Legal Aid Society.  And thus, he brings to the table an impressive scholarly breadth, but also the experiences and seasoned insights of a public defender that stood before juries for nearly a decade.  Such biographical information is helpful in understanding the spirit that animates this book.  First and foremost, Jonakait reminds us, the jury system entrusts citizens with the critical legal and political authority to resolve disputes and check power.  And, the system “works quite well” because most jurors are “diligent and earnest” (p.xiii), they “almost always agonize over making the right decision” (p.xii), and in the end this group of individuals is “much more rational in reaching decisions than many suppose” (p.xv).  That said, the system is still in need of treatment—in the form of band-aids rather than transplants—that will allow it to better fulfill the democratic project [*390] imagined by its designers. 

In general, Jonakait elegantly makes the case for a renewed appreciation of the jury system in the United States and he does so with an argument that provides comprehensiveness, calmness, and clarity.  Indeed, perhaps the paramount virtue of this book is the remarkable array of materials and sources he brings to the discussion.  Jonakait successfully negotiates his way through scholarly studies and novels, films and plays, celebrity trials and United States Supreme Court cases.  He makes intriguing connections between various sources and in the process presents many interesting options for use in a university classroom.  In raising important questions about the capacity of jurors versus that of judges, for example, Jonakait reminds us that a juror’s interpretation of the facts and evidence is often importantly shaped by, in effect, “street smarts.”  To wit, he makes reference to the issue of the switchblade in TWELVE ANGRY MEN and draws the parallel to Jack Klugman’s character who, because he grew up in the “slums,” was familiar with such a weapon and thus was able to see that the defendant would not and could not have used the blade in the manner suggested by the prosecution (pp.44-45).  Other such references include John Grisham novels, various short stories, and famous recent criminal trials—all elements that make the book both topical and immensely readable. 

But the book is also comprehensive in its scope.  Jonakait spans the history of the jury system and the various normative questions raised, the fit of the institution within an adversary system of justice, the complications and concerns that arise during all phases of selection, the most common criticisms of these bodies, the potential for abuse and malfunction built into the system, and a range of prescriptions for reform.  In this regard, readers (students, professors, citizens) have a thorough “one-stop” resource that asks and answers all the “big” questions. 

Perhaps on account of his thorough and comprehensive assessment, Jonakait’s book also brings a calmness and clarity to the discussion of the jury system in America.  Contrary to much of the conventional wisdom, Jonakait argues, juries (and trials in general) are not out of control; frivolous lawsuits are filed and juries sometimes award what seem to be outrageous amounts of money to the plaintiffs, but these are not the norm.  Moreover, when problems do arise—such as the multi-million dollar jury verdict that was reported (though the parties ultimately settled for much less) in the McDonald’s coffee lawsuit —the fault may lie more with poor jury instructions than with the individuals or the institution itself (p.217). 

With regard to different, though equally controversial topics, Jonakait demonstrates that the concerns over jury nullification and scientific jury consultants are overblown.  On the first, both critics and advocates of jury nullification—essentially the practice of disregarding the law and acquitting a guilty defendant (though, as Jonakait notes, this is a bit of a misnomer because jurors do not really “nullify” the law; they simply choose not to apply it [p.252])—have exaggerated their case.  Juries do have such power, they may or may not have the “right,” and it may or may not be wise to inform them of such an option, but neither the “call to action” [*391] of advocates nor the “sky is falling” fears of critics seems to be born out by the available data (pp.256-60).  Juries may reach unreasonable, even inexplicable, verdicts and they surely acquit those who have been found guilty in the court of public opinion (think:  O.J. Simpson), but this is not necessarily evidence of jury nullification. 

Nor do we have much concrete evidence that our trial process has been hijacked by high-priced jury consultants.  John Grisham’s fanciful depiction in THE RUNAWAY JURY notwithstanding, the data do not seem to show that “scientific” selection (in effect, profiling of potential jurors, based on personal grooming habits, survey responses, facial tics, attitude, race, etc.) is as significant during a trial as is commonly believed (pp.159-61).  Nor, he notes, do lawyers really “select” jurors in the first place; it is more accurate to say that they “deselect” them in that they can only remove individuals from a randomly assembled panel (p.140).  Indeed, as Jonakait notes, flipping a coin would give one a 50% accuracy rate on voting predictions (guilty or not guilty), but a basic attention to jury tendencies nationwide reveals that 80% of jurors prefer conviction (pp.158-59) and thus for consultants to be worthy of their exorbitant fees, they would need to do better than simply predicting that eight of ten people will likely vote to convict.  Personal histories, biases, and other such features surely matter—to a point—but as Jonakait argues overall what is most critical is the quality of the evidence presented, rather than the particular qualities of the individuals before whom it is presented. 

While the book is excellent in many ways, and certainly deserves placement in upper level undergraduate and graduate syllabi, there are a few things that might have made the book even better.  For one—and as anticipated by Jonakait in the first chapter—America has “many jury systems,” including those of every state, the federal government, and the District of Columbia (p.1).  While similar in many ways, the process for adjudicating criminal cases differs from that of civil cases, making any assessment of the “THE” American jury system an ambitious project indeed.  In this sense, the virtue of the book (its breadth), is also its vice; the argument spans twenty chapters and leaves the reader a bit overwhelmed by the scope of evidence presented and the range of objectives pursued.  The organization and arrangement is curious in places—key issues such as diversity and the nature of an adversary system are not introduced until fairly well into the book—and it seems that some chapters could have been consolidated to better concentrate on a few key themes.  Chapter Six, for example, addressing “Jury Size and Jury Performance,” is only six pages long and the information could have been incorporated elsewhere.

Additional criticism might also be directed toward Jonakait’s discussion of data.  Two specific points are worth mentioning.  First, Jonakait presents many statistics to support his claims, but they are not absorbed as easily as they might best be because of the manner in which they are presented:  over the course of 300 plus pages of text, there are no tables, schemas, models, or visual devices of any kind.  This makes it extremely difficult to fully appreciate the important distinctions that are drawn—[*392] involving the number of cases that actually go to trial, the percentage of state civil trials versus federal civil trials, the frequency of bench trials, and so on.  The reader struggles to keep the relevant numbers and ratios in mind as Jonakait discusses their significance.  Second, much of Jonakait’s argument for the success and potential of the jury system turns on assumptions of juror capacity, deliberative potential, group dynamics, and other domains of study within psychology, sociology, political science, and related fields, and yet there are not as many references to social science materials as one might expect in his footnotes.  He does several times cite the work of Valerie Hans and others, and he includes many experiments and studies presented in law reviews, but there is much that could have been drawn from a wide range of social science journals (as opposed to law reviews)—information and arguments that could have enriched his reasoning, strengthened his conclusions, and sustained, or perhaps tempered, his optimism. 

Those not persuaded by Jonakait’s argument might be swayed by his discussion of “reforms” in the final chapter—where diagnosis meets prescription.  “Because jurors are most influenced by the quality of information presented to them,” Jonakait explains in the conclusion, “the best way to improve jury verdicts is to improve the information the jury receives to consider” (p.280).  In this regard, he discusses several options, including better discovery efforts, more conscientious preservation of evidence, and increased witness preparation, among other things.  He is persuasive in explaining how such propositions will likely heighten the administrative efficiency of trial proceedings and the basic perception, comprehension, and recall of jurors, though this may not be sufficient to appease skeptics and critics of the institution itself.  Band-aids work on scrapes—but what if the wounds are deeper?  For those who see the same faults at work in the jury system as in the idea of democracy itself—i.e., voter irrationality, prejudice, anemic participation—Jonakait’s recommendations might seem inadequate or even naïve.     

Though different in kind (more descriptive and less historical) than Jeffrey Abramson’s excellent book of a decade ago, WE, THE JURY, Jonakait’s work is surely of equal quality and imagination.  Readers looking for a balanced, comprehensive, and hopeful assessment of the modern jury system—and all that this democratic institution aspires to be—will learn much from this book.  Whether Jonakait’s optimism is warranted remains to be seen.  On this matter, the jury is still out. 

REFERENCES:

Abramson, Jeffrey.  1994.  WE, THE JURY.  New York:  Basic Books. 

Grisham, John.  1996.  THE RUNAWAY JURY.  New York:  Doubleday.

Lumet, Sidney.  1957/2001.  TWELVE ANGRY MEN.  MGM/UA.

Twain, Mark.  1962.  ROUGHING IT.  New York:  Penguin Putnam. 

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Copyright 2004 by the author, Brian Pinaire.