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