Our Jury System

Bill Neinast


Natalie Frels’ editorial in these pages several weeks ago was a look at our jury system.  The gist of her comments was that reporters have to exercise caution in reporting crimes.  Too much information could affect the process of seating 12 unbiased jurors.

Today, prior information about a crime that is on trial may be the lesser of two problems faced by prosecutors and defense counsel.  A more serious concern is TV.

The daily TV schedules provide a long list of cops and robbers programs.  New episodes and reruns of Law and Order, Law and Order, SVU, and similar crime shows are available around the clock.  In each hourly segment the murder, rape, robbery or other serious crime is solved with incontrovertible evidence in the 45 minutes free of advertising.

Unfortunately, some citizens swept up for the jury pool cannot distinguish fact from fiction.  They believe that if it is on TV, it must be true.  

For them all crime scenes are brimming with irrefutable evidence that can be run through forensic labs and compared with national databases in less than five minutes.  If that was not done in the real case before them, the police must have done such a lousy job, their evidence cannot be trusted.

Maybe, however, jurors being influenced by something not relevant or not in evidence predates TV.  

For example, one of my Dad’s favorite stories involved his service on a jury in a cvil trial in the 1920s or 30s.  While living in Somerville  he was summoned for jury duty.  He made the trip to Caldwell, the County Seat, by train.

I do not remember the names of the litigators in the lawsuit for which he was a juror, so I will call them Jones suing Smith for some type of damage.  After the trial, another juror offered Dad a ride home in his automobile.  During the ride, the driver asked, “Well tell me Mr. Neinast, did we give Mr. Jones something or didn’t we?”

So that’s what you get when you go for a trial by a jury of your peers.  Actually, you have no “right to a trial by your peers.”  The Sixth Amendment merely guarantee a right to a jury trial.  “By your peers” goes back to the English Magna Carta where Englanders sought and got a right to be tried by their peers, i.e., commoners, rather than noblemen.

What constitutes a jury of peers played a vital part in a criminal trial in which I was involved 30 years ago.  I was appointed to represent a young Black man accused of selling drugs. This was an outstanding young man who had a bright future.

I was convinced that he had been entrapped, i.e., set up by the arresting officer. I thought there was a very good possibility of getting him acquitted and tried hard to get him to plead Not Guilty.

He steadfastly refused to do so in the belief that he would be tried by a jury composed mostly of Whites.  That meant, he thought, that he would not get a fair trial.

He insisted, though, that he could not go to prison. So I negotiated a deal for him to plead guilty and be placed on probation.  He then moved to Houston but called me several times complaining that he could not find employment, even in fast food operations, because he was a convicted felon.

So here’s the perspective.

Are American juries all they are praised for?  In selecting a jury, you get what you pay for.  If you can afford it, you hire psychologists to help your lawyer appraise prospective jurors.

That is what Oprah Winfrey did when she was sued by a ranchers coalition over some remark she made about eating hamburgers.  She won the suit and gave her psychologist, Dr. Phil, the introduction to a TV career.

Maybe we should try the German system.  The trial courts there are composed of two or three permanent law judges and three or four lay judges who serve for several months and try a number of cases.  Their rules of evidence are also less restrictive than ours, allowing consideration of a lot more evidence that can be evaluated for its relevance by the experienced jurors.

A German style jury would be less likely to decide cases on the basis that the defendant probably has insurance, as was related to me by a juror in a civil suit.

A change might be worth a try.  



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