The Civil Jury Project at the NYU School of Law seeks to examine and explain the causes and consequences of the rapid decline in the use of the jury in civil trials. It just released its April 2017 newsletter, which contains three guest op-eds–two of which speak on the implications that the recent Pena-Rodriguez v. Colorado ruling could have for the civil jury system. The opinion, issued on March 6 on a 5-3 vote, found that it was constitutional for jurors to be impeached in criminal cases if compelling evidence shows that racial animus was a significant motivating factor in their decision.
In the first article (“Did the Supreme Court Open a Pandora’s Box on Jury Discrimination?“), University of Texas-Austin professor Jeffrey Abramson argues that the Supreme Court has been historically reluctant to regulate the behavior of jurors based on charges of ineptitude or poor judgement, even when those jurors were potentially under the influence of drugs or alcohol. Nevertheless, “the Supreme Court reacted differently, and correctly,” in the Pena-Rodriquez ruling.
As opposed to the occasional misconduct of rogue jurors using drugs during a trial, anyone familiar with the history of the America[n] jury know that racial bias is a familiar and recurring evil. Any rule of tradition that keep courts from protecting jury trials from racial prejudice would make a mockery of the Constitution’s guarantee of trial before an impartial jury.
Abramson argues that the ruling will not necessarily expose jury deliberations to routine judicial inspections (the “Pandora’s Box” dissenters fear it will open). The opinion was limited to cases of overt or explicit bias, as well as to bias that only invoked racial or ethnic prejudice. In so doing, the court is seeking to “preserve our general faith in the jury system while dealing with the particularly egregious effects of race on the administration of justice… a hard combination to pull off [successfully].”
The second article, titled “Democracy, Citizenship, and the Pena-Rodriguez Case” and written by New Jersey Institute of Technology professor and fellow The Jury and Democracy co-author E. Pierre Deess, takes an opposing stance. Deess believes that not only will this decision open the aforementioned “Pandora’s Box” by not “offer[ing] strong principles limiting the decision to racial bias,” but jurors may struggle to conduct open and unregulated deliberation. Under a fear of expressing objectionable views, jurors will sometimes fail to scrutinize and evaluate the facts as they have been presented:
Entrusting power to citizens comes at a cost… With this decision, jurors– ordinary people–must police their words even in the heat of argument or the decision of the jury can be overturned… We cannot invoke some greater authority to set aside the decisions of an electorate or a jury because faith in the people is the final consequence of democracy.
The last article, titled “The Expressive Function of the Jury” and written by University of Connecticut School of Law professor Alexandra D. Lahav, does not deal with the Pena-Rodriguez ruling, but touches on some of the points made by Deess. In her book In Praise of Litigation, she argues that the jury is a cornerstone of democracy, as its very existence “expresses a societal belief that citizens are sufficiently educated and thoughtful to decide the fate of their fellow citizens.”
Moreover, jury service also offers a more robust form of participation than mere voting as “it requires deliberation,” while also providing a forum through which that deliberation can effectively negate the flaws of a democratic society, such as deeply-held racial animus:
It is precisely in encouraging deliberation, consensus and recognizing different points of view that the jury is so important to democracy. Instead of being a threat to expertise, virtuous elites, and professional homogeneity, the jury can be understood as a welcome complement.