by Andrew Guthrie Ferguson. New York: New York University Press, 2013. 233pp. Paper $16.95. ISBN: 978-0-8147-2903-8.
Reviewed by Samuel B. Hoff, Department of History, Political Science, and Philosophy, Delaware State University. Email: shoff [at] desu.edu.
Andrew Guthrie Ferguson, an Assistant Professor of Law at the David A. Clarke School of Law at the University of the District of Columbia, combines his academic expertise with years of experience as a public defender in this inspiring book on the value of jury service in the United States. His premise is that jury duty permits Americans to reconnect with constitutional principles such as civic participation, deliberation, fairness, equality, liberty, accountability, freedom of conscience, and common good, to the benefit of the individual juror, the justice system, and our political system overall. He taps multiple sources – court cases, political documents, quotations by philosophers and justices – but likewise relays his own reflections and stories about the jury system.
In the Introduction, Ferguson furnishes information denoting the extensive reach of jury service: around 32 million citizens receive a jury summons, and 1.5 million Americans sit as jurors in the 150,000 jury trials each year; one in three Americans will serve on a jury during their life. Subsequently, each chapter identifies a base constitutional principle and discusses how it is fulfilled through jury duty.
In Chapter 1, Ferguson contends that jury service is a form of civic participation, “an invitation to participate in the American experiment of self-government” (p.9). In addition to making the analogy to forms of participation permitted by the 1st Amendment, he holds that jury service prevents “inert” citizens and acts as a legal education for those taking part.
Chapters 2, 3, and 5 address the ideals of fairness, equality, and liberty, respectively. In Chapter 2, the relationship between fairness and jury service is delineated. Fairness in the justice system is guaranteed not only by those rights and procedures found in the Bill of Rights, but by those actions specifically prohibited by the government. The benefits of a jury system which is based on the rule of law are that it is workable, fixable, and legitimate. Chapter 3 demonstrates how jury selection and service are based on equality. Both constitutional amendments and court rulings have fostered equality and countered limitations on citizenship. Once selected, jurors share the same sources and quantity of information. In Chapter 5, Ferguson seeks to show how liberty as a constitutional ideal is practiced through jury duty. He observes that in “colonial times, juries were hailed as the bulwark of liberty” (p.82), and likes this to U.S. Supreme Court Justice Stephen Breyer’s concept of “active liberty,” which comprises not only freedom from government but freedom to participate in it as well.
In Chapters 6 and 7, Ferguson reviews the constitutional principles of deliberation and dissent, respectively, and ties these ideals to the jury service. Deliberation has the benefits of producing better decisions and instilling an internal kind of check and balance on jurors. The question of the number of jurors and its impact on the justice system is weighed. Dissent is linked both to freedom of expression and to acting according to one’s conscience. Though it is protected through tolerance of differing views, Ferguson reminds readers that dissent within a jury is inimical to the goal of consensus and “could lead to a less than constructive result” (p.133).
The topics of Chapters 4 and 8 – connecting to the public good and judging accountability – are similar in that they illustrate the association between jury service and constitutional ideals that are broadly societal in impact. For Ferguson, the jury is a connecting institution, comparable to common laws and to mutual obligations such as those found in the oath clause of Article VI of the Constitution. In their individual roles as jurors, citizens act to hold parties and the legal system responsible by balancing law and equity. Ferguson finds that as “a means of accountability, juries thus represent a very successful experiment in democratic judgment” (p.159).
In the Conclusion, Ferguson reviews the binds between constitutional ideals and jury service. He then expresses his personal appreciation to those who have participated as jurors: “From all of us who practice in criminal and civil court and try to live up to the constitutional values of a nation, thank you” (p.163).
Over the last two decades, several books have been published on some aspect of the jury system. Jeffrey Abramson’s 1995 work is divided into three parts and examines juries from the standpoint of democratic knowledge, representation, and deliberation. D. Graham Burnett’s 2002 book emanated from his own experience as a foreman of a jury in a New York murder trial. In his 2007 study, Neil Vidmar evaluates the contemporary pros and cons of the jury system by empirical means, finding overall support for the value and functioning of juries in civil and criminal trials. Finally, two 2012 publications focus on specific features of the jury system. While Margaret Bull Kovera and Brian L. Cutler probe factors associated with jury selection, Dennis Devine reviews and revises theories regarding decision making by juries. Based on its objectives, content, and length, the Abramson text is closest to that of Ferguson. While Ferguson covers more topics, Abramson offers a more balanced critique of juries’ impact by asserting that “the direct and raw character of jury democracy makes it our most honest mirror, reflecting both the good and the bad that ordinary people are capable of when called upon to do justice” (p.250).
Both Ferguson and Harvard University law professor Charles Ogletree, Jr. – who wrote the Forward to the present text – have direct and positive memories of juries, an essential orientation for such an outwardly optimistic book on the role of the jury system as a component of American democracy. Other than the flawed sequence of presentation – a consequence of a lack of sectional organization – Ferguson’s work is perhaps too ambitious in its link between certain constitutional principles and jury features and too incomplete in descriptions once the tie is made.
For instance, calling jury service participatory is a stretch when it occurs pursuant to mandatory response to a summons. But given its inclusion, Ferguson could have made more accurate comparisons to other obligatory activities such as the military draft and paying taxes. There could have been a section on non-participation, an unfortunate contemporary trend in both jury service and in voluntary activities alike.
In the discussion of fairness, Ferguson explains that it may be a “tactical decision having nothing to do with you as a person that keeps you off the jury” (p.31). The jury selection process may allow for such winnowing by contesting attorneys, but without checks on such behavior, juror equality could be adversely affected.
Ferguson finds that institutions of citizen deliberation are protected in America. Yet, he neglects to adequately evaluate the how the duration of deliberation can impact the decision and force a dissenter to conform, especially where unanimity among jurors is required for a final verdict.
The constitutional principle of accountability cuts both ways as it pertains to jury service. For just as “the jury holds the legal system accountable” (p.140), so an unexpected verdict may lead to an appeal of the case, to an effort by Congress or a state legislature to negate the decision by passing a contrary law, and to public disdain for the jury and for the entire legal system. Will this book prompt millions of citizens to suddenly want to serve as jurors? Probably not, but it could augment the large number of Americans who already favor a jury deciding a case rather than a judge. Still, Ferguson reminds us that one doesn’t have to wait for the call to jury duty to experience the values it exhibits: “All you have to do is read the Constitution” (p.163).
Abramson, Jeffrey. 1995. We, the Jury: The Jury System and the Ideal of Democracy. New York: Basic Books.
Burnett, D. Graham. 2002. A Trial by Jury. New York: Vintage.
Devine, Dennis J. 2012. Jury Decision Making: The State of the Science. New York: New York University Press.
Korvera, Margaret Bull, and Brian L. Cutler. 2012. Jury Selection. New York: Oxford University Press.
Vidmar, Neil. 2007. American Juries: The Verdict. Amherst, NY: Prometheus Books.
Copyright 2013 by the author, Samuel B. Hoff.