Frampton on The First Black Jurors and the Integration of the American Jury @TFrampton @UVALaw @nyulawreview

Thomas Frampton, University of Virginia School of Law, is publishing The First Black Jurors and the Integration of the American Jury in the New York University Law Review for 2024. Here is the abstract.

Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like Strauder v. West Virginia (1880). Legal scholars and historians unanimously report that free people of color did not serve as jurors, in either the North or South, until 1860. In fact, this Article shows, Black men served as jurors in antebellum America decades earlier than anyone has previously realized. While instances of early Black jury service were rare, campaigns insisting upon Black citizens’ admission to the jury-box were not. From the late 1830s onward, Black activists across the country organized to abolish the all-white jury. They faced, and occasionally overcame, staunch resistance. This Article uses jury lists, court records, convention minutes, diaries, bills of sale, tax rolls, and other overlooked primary sources to recover these forgotten efforts, led by activists who understood the jury-box to be both a marker and maker of citizenship. A broader historical perspective—one that centers Black activists in the decades before the ratification of the Fourteenth Amendment in 1868—offers a new way of thinking about the relationship between race, rights, citizenship, and the jury.

Download the article from SSRN at the link.

Anderson on Peremptory Challenges at the Turn of the Nineteenth Century

April Anderson, Independent Scholar, has published Peremptory Challenges at the Turn of the Nineteenth Century: Development of Modern Jury Selection Strategies As Seen in Practitioners’ Trial Manuals. Here is the abstract.

Peremptory strikes on the basis of race, national origin, religion, and class are well-known problems in modern jury selection, and have led to calls to abolish peremptory strikes altogether. Defenders of peremptory strikes argue that they are a fixture of the common law system that should not be discarded because of a few abuses. This Article explores how and why strategic jury selection developed in the United States by looking at previously unstudied primary source materials: nineteenth-century trial-attorneys’ practice guides. Peremptory challenges and voir dire are difficult to study because court records often leave them out. Even when strikes are recorded, an attorney’s strategy may not be evident to the outsider. But practice guide materials reveal these strategies, demonstrating that nineteenth-century attorneys used peremptory strikes to eliminate jurors based on stereotypes regarding race, national origin, religion, and class. They also show how a number of features of the modern American jury selection system—most notably, extended pretrial questioning of jurors—were expanded from their more limited common law forms to make it easier for lawyers to either respond to particular social prejudices in American society or to make discriminatory peremptory challenges. These findings have important implications for the modern-day debate over peremptory challenges. While proponents of peremptory challenges point to their ancient origins as justification for keeping them, a historical perspective shows that modern jury selection looks nothing like its English common law progenitor. Analysis of turn-of-the-century practices, the beginnings of the procedures we use now, exposes modern abuses as part of a trend that began in the 1800s. Simply put, the problems reformers now point to are not recent abuses that have crept in to an ancient system. They have existed for as long as the jury selection procedures we know have been practiced. Modern jury selection and abusive tactics grew up simultaneously in the 1800s as a reaction to the country’s social divisions, suggesting that discrimination as a trial strategy is inevitable in a heterogeneous society where courts allow extended voir dire and unfettered peremptory challenges.

Download the article from SSRN at the link.

Kent on The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era

Andrew Kent, Fordham School of Law, is publishing The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era in volume 91 of the Southern California Law Review. Here is the abstract.

This article contributes to several debates and literatures, which have not previously been all linked together: the history of the jury in the United States, the nature of U.S. imperialism and colonial governance in Puerto Rico and the Philippines, and Progressive era legal reform. The story starts with the Insular Cases — landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors. The article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. So while deep, institutional racism was certainly present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights. To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this article fills out a largely overlooked history of the jury in the mainland United States during the Gilded Age and Progressive Era. Most histories of the jury skip from the adulation of the institution at the Founding, to the Warren-Burger Courts' decisions over 150 years later that racial and gender discrimination in jury service were unconstitutional and that the criminal petit jury was a fundamental right. It turns out that the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist popular press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court held then that states should not be forced to "straight jacket" themselves (in the Court's words) to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment to create more efficient criminal and civil procedure. Leaders of the anti-jury reform movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about governance of the new territories helps enrich our understanding of both.

Download the article from SSRN at the link.

Holler on the Marquis de Condorcet and the Two-Dimensional Jury Model

Manfred J. Holler, University of Hamburg, Faculty of Economics and Business Administration, is publishing Marquis De Condorcet and the Two-Dimensional Jury Model in Law and Economics in Europe and the U.S.: The Legacy of Juergen Backhaus (Alain Marciano and Giovanni Ramello eds., Springer). Here is the abstract.

The two-dimensional jury model, which is the core of this paper, demonstrates the two, partly conflicting, dimensions in Condorcet’s work and life. There is the dimension of enlightenment, reflected in Condorcet’s jury theorem, i.e., the belief that there is some truth can be approximated in collective decision making. On the other hand, there is creed that individual preferences are the building block of the society with the consequence of inevitable conflicts in aggregating them. This paper combines the idea of winning a maximum of votes in a voting game with utility maximization that derives from the winning proposition. The model assumes a first mover, the plaintiff, and a second-mover, the counsel of the defendant. Typically, these agents represent parties that have conflicting interests. Here they face an arbitration court in the form of jury that consists of three voters such that no single voter has a majority of votes. The agents are interested in both gaining the support of a majority of jury members and seeing their preferred alternative selected as outcome. It will be demonstrated that equilibrium decision making can be derived for this model.

Download the essay from SSRN at the link.

Lerner on The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury

Renee Lettow Lerner, George Washington University Law School, has published The Troublesome Inheritance of Americans in Magna Carta and Trial by Jury at Magna Carta and its Modern Legacy 77-98 (Robert Hazell and James Melton eds., Cambridge University Press 2015). Here is the abstract.

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta — particularly the provisions concerning the “law of the land” and “judgment of his peers” — embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority. Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law of seditious libel, customs taxes, and debts to British merchants. It was no wonder Americans held the jury in high esteem, at least until they had to run their own governments. Americans filled their constitutions, both federal and state, with rights to jury trial. Several American states even included translations of provisions from Magna Carta in their constitutions, enshrining the “judgment of his peers.” Once Americans had achieved independence and formed the new republics, judges faced the task of interpreting these thirteenth-century provisions as eighteenth- and nineteenth-century law. American judges quoted Blackstone and historical treatises. Through the nineteenth century, however, American enthusiasm for juries waned. The much-repeated phrases from Magna Carta became a flimsy screen, masking the steady decline of jury power.

Download the essay from SSRN at the link.

Howlin on the Politics of the Nineteenth Century Irish Jury Trial

Niamb Howlin, Sutherland School of Law, University College Dublin, is publishing The Politics of Jury Trial in Nineteenth-Century Ireland in the 2015 volume of Comparative Legal History. Here is the abstract.

This article considers aspects of lay participation in the Irish justice system, focusing on some political dimensions of the trial jury in the nineteenth century. It then identifies some broad themes common to systems of lay participation generally, and particularly nineteenth-century European systems. These include perceptions of legitimacy, State involvement and interference with jury trials, and issues around representativeness. The traditional lack of scholarship in the area of comparative criminal justice history has meant that many of the commonalities between different jury systems have been hitherto unexplored. It is hoped that this paper will contribute to a wider discussion of the various commonalities and differences in the development of lay participation in justice systems.

Download the article from SSRN at the link.

Unarmed Black Males, Police Shootings, and Courtroom Narratives

Sherri Lee Keene, University of Maryland School of Law, is publishing Victim or Thug? Examining the Relevance of Stories in Cases Involving Shootings of Unarmed Black Males in volume 58 of the Howard Law Journal (2015). Here is the abstract.

In recent years, the shootings of unarmed African American men and boys by individuals with real or purported police authority have garnered significant public attention. Moreover, studies about these incidents have revealed stark contrasts in perspectives between African Americans and White Americans concerning jury decisions not to charge or not to convict the shooters, and the role that race may have played in these cases. Recent polls reveal that African Americans express significantly greater dissatisfaction with these jury decisions and often share the belief that race has played a role. While it is not possible to know the extent to which race actually impacted recent jury decisions, this article explains how matters of race can find their way into jurors’ assessments of cases involving shootings of unarmed African American males. This essay focuses on what we now know about the role of stories in jury decision-making, and the opportunities that stories afford for jurors’ pre-existing attitudes and beliefs, including their biases and prejudices, to factor into their evaluations of cases. Ultimately, this essay argues that the quality of justice and public perceptions would be improved if courts reconsider how they address bias and prejudice in the courtroom. It encourages courts to acknowledge the role that jurors’ perspectives play in decision-making, and employ practices that raise jurors’ awareness of their own biases and encourage the selection of jurors who bring diverse perspectives.

Download the essay from SSRN at the link.

The American Jury System

Richard Lempert, University of Michigan Law School, is publishing The American Jury System: A Synthetic Overview in the Chicago-Kent Law Review. Here is the abstract.

This essay, originally written for a Swiss volume, and revised with added material for publication in the Chicago Kent Law Review, is intended to provide in brief compass a review of much that is known about the American jury system, including the jury's historical origins, its political role, controversies over its role and structure, its performance, both absolutely and in comparison to judges and mixed tribunals, and proposals for improving the jury system. The essay is informed throughout by 50 years of research on the jury system, beginning with the 1965 publication of Kalven and Zeisel's seminal book, The American Jury. The political importance of the jury is seen to lie more in the jury's status as a one shot decision maker largely independent of trial court bureaucracies than in its ability to nullify the law. Despite flaws in the jury process and room for improvement, the message that emerges from the literature is that juries take their job seriously and for the most part perform well. There is little reason to believe that replacing jury trials with bench trials or mixed tribunals would improve the quality of American justice, and some reason to think it might harm it.

Download the essay from SSRN at the link.

The Paradox of the Jury

Markus D. Dubber, University of Toronto Faculty of Law, has published The Schizophrenic Jury and Other Palladia of Liberty: A Critical Historical Analysis. Here is the abstract.

The jury’s history is interestingly schizophrenic, even paradoxical. On one side is the history of the jury as palladium of liberty, often along with other such palladia, notably habeas corpus. On the other is the history of the jury as instrument of oppression. On one side is the jury as English, local, indigenous, democratic; on the other is the jury as French, central, foreign, autocratic. This paper reflects on this paradox, regarding it as neither sui generis nor in need of resolution. Instead, it critically analyzes the jury’s schizophrenic history from the perspective of New Historical Jurisprudence, as an illustration of the fundamental tension between two modes of governance, law and police, which ultimately are rooted in the distinction between autonomy and heteronomy that has shaped the conception and practice of government since classical Athens.

Download the paper from SSRN at the link.

Rhetorical Firepower In the Nineteenth-Century Courtroom

Simon Stern, University of Toronto Faculty of Law, has published Forensic Oratory and the Jury Trial in Nineteenth-CenturyAmerica. Here is the abstract.

The institution of the jury underwent radical change in the United States during the nineteenth century. At the beginning of the century, the jury trial was a form of popular amusement, rivaling the theater and often likened to it.The jury’s ability to find law, as well as facts, was widely if inconsistently defended. The trial’s role as a source of entertainment, and the jury’s ability to nullify, were consistent with a view of forensic oratory that emphasized histrionics, declamation, and emotionally charged rhetoric as means of legal persuasion. By the end of the century, judges had gained more control of the law-finding power, and various questions of fact had been transformed into questions of law. Many of the details that would have aided the lawyers’ dramatic efforts were screened out by a host of new exclusionary rules. The overall effect was to afford less scope for lawyers' emotional excesses — and to make those performances seem disreputable and outmoded. As an institution, the trial continued to figure significantly in American culture through the first three decades of the twentieth century. Numerous factors conspired to weaken the trial’s prominence after that time. Although these changes in forensic style have not usually been considered as a part of that narrative, they may have helped to facilitate the decline of the trial, by reorienting its function away from a broadly representative one, and towards one that emphasized dispassionate analysis in the service of objectivity and technical exactitude, appealing to a rather different community, made up of professional lawyers and those laypersons who could appreciate their values.

Download the paper from SSRN at the link.

Twelve Inquiring Jurors

Steven Lubet, Northwestern University School of Law, and Kevin Chang have published Stupid Juror Questions? as Northwestern Public Law Research Paper No. 13-32. Here is the abstract.

Everyone knows there is no such thing as a stupid question. Well, at least every parent, teacher, counselor, advisor, librarian and boss is evidently aware of the truth of that simple maxim. Nonetheless, the obvious utility of asking questions – seeking wisdom; requesting clarification; locating information – appears to have eluded certain high officials in the justice system of the United Kingdom, not to mention a raft of journalists, a clutch of parliamentarians, and a good swath of the British public, all of whom expressed consternation at a series of written questions posed by the jurors in a high profile, though relatively low stakes, criminal case. “Do we need IQ tests for juries?” wondered one pundit, who fumed that the jury’s questions had “exposed a breathtaking level of ignorance and stupidity.” Another echoed the thought, asking whether the jury was “stupid or just confused?” This article analyzes the ten infamous questions posed by the jury in the British trial of Vicki Pryce, who was accused of “perverting the course of justice” in an attempt to advance the political career of her now-former husband. Drawing upon legal history, criminal procedure, and cognition science, we conclude that the jury’s questions were far more perceptive than the court and the British pundits realized.

Download the paper from SSRN at the link. 

Medieval English Juries

Daniel Klerman, University of Southern California Law School, has published The Selection of Thirteenth-Century Disputes for Litigation, as USC Law School Olin Research Paper No. 00-10. Here is the abstract.

Priest and Klein's seminal 1984 article argued that litigated cases differ systematically and predictably from settled cases. This article tests the Priest-Klein selection model using a data set of thirteenth-century English cases. These cases are especially informative because juries rendered verdicts even in settled cases, so one can directly compare verdicts in settled and litigated cases. The results are consistent with the predictions of the Priest-Klein article, as well as with the asymmetric-information selection models developed by Hylton and Shavell.

Download the paper from SSRN at the link.

Juries and Narrative

Robin H. Conley, UCLA Department of Anthropology, and John M. Conley, University of North Carolina, Chapel Hill School of Law, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling
techniques in their deliberations. It begins by reviewing the literature on
how
jurors receive and process evidence, emphasizing narrative and
storytelling. It
then presents some new, qualitative linguistic data drawn
from actual jury
deliberations, which shed light on jurors' standards of
evidence and proof, as
well as on the persuasive tactics they use in dealing
with each other. Although
these data are limited, they provide an
interesting basis for assessing existing
ideas about jury
evidence-processing and thinking more broadly about the
strengths and
weaknesses of the jury system.

Download the Article from SSRN at the link.

Juries and Narrative

John M. Conley, University of North Carolina, Chapel Hill, School of Law, and Robin H. Conley, UCLA Department of Anthropology, have published "Stories from the Jury Room: How Jurors Use Narrative to Process Evidence," at 49 Studies in Law, Politics, & Society 25 (2009). Here is the abstract.

This paper analyzes the ways in which jurors use everyday storytelling techniques in their deliberations. It begins by reviewing the literature on how jurors receive and process evidence, emphasizing narrative and storytelling. It then presents some new, qualitative linguistic data drawn from actual jury deliberations, which shed light on jurors' standards of evidence and proof, as well as on the persuasive tactics they use in dealing with each other. Although these data are limited, they provide an interesting basis for assessing existing ideas about jury evidence-processing and thinking more broadly about the strengths and weaknesses of the jury system.

Download the article at the link.