Vol. 26 No. 5 (September 2016) pp. 96-99

THE JURY IN AMERICA: TRIUMPH AND DECLINE, by Dennis Hale. Lawrence, Kansas: University Press of Kansas, 2016. 464 pages. Cloth $39.95. ISBN: 978-0-7006-2200-9.

Reviewed by Jack E. Call, Professor of Criminal Justice, Radford University. Email:

The right to trial by jury is generally viewed as one of the fundamental rights of Americans. It is the only right guaranteed in both the original Constitution and the Bill of Rights. THE JURY IN AMERICA is a detailed treatment of the right in both historical and political contexts by Dennis Hale, a political scientist.

Hale begins by examining the evolution of juries in pre-colonial England and in the American colonies. By the Thirteenth Century, English royalty had come to recognize that their hold on power would be strengthened if the judicial system was perceived by the populace as fair. Thus, in 1166, Henry II issued the Assize of Clarendon, giving juries the authority to decide if a person accused of a crime should be permitted to choose whether his guilt would be determined by ordeal (dropped into water while tied up to see if he sank or floated) or by compurgation (bringing in witnesses to testify as to the character of the accused). In 1215, King John signed the Magna Carta, which included a provision requiring legal disputes to be resolved through “judgment by peers.” In that same year, the Fourth Lateran Council (convened by Pope Innocent III) banned the participation of priests in ordeals, effectively bringing that practice to an end, and creating a decision-making void that, in England, was filled by use of juries.

In the colonies, juries developed somewhat differently in each colony. Hale provides detailed descriptions of juries in Virginia, New York, and Massachusetts to demonstrate this fact. Juries – including grand juries – sometimes mitigated the harshness of actions taken by the Crown by refusing to convict in cases brought under British legislation viewed by colonists as oppressive. Jury verdicts were also increasingly viewed as final, so that other government agencies could not overturn them. Nevertheless, in many cases, magistrates or justices of the peace possessed authority to act without juries. Even when juries existed, they were often seen by ordinary citizens as instruments of the government, especially in less serious cases. But as the colonies moved closer to seeking independence from England, the jury began to be perceived as an instrument – at least on occasion – of protection from English excesses.

Hale moves on to a description of the evolution of the “republican jury” (from the mid-18th century into the late 19th century). The republican jury was characterized by an increased involvement of lay persons in the judicial process. Juries had to follow a judge’s instructions on the law, but they also possessed the power to bring their own understanding of the law to a given case. Criminal juries came from the “vicinage” of the crime because jurors should be tried by men who knew their character. As Hale paraphrases Tocqueville: “the jury mitigates the tyranny of the majority by improving citizens’ understanding of both their duties and their rights, teaching them civic responsibility and curbing the natural human temptation toward tyranny” (p. 92). Grand juries acted on their own sometimes to investigate matters of public significance and even occasionally issued reports that included recommendations to government officials.

Juries would sometimes refuse to extend their understanding of the appropriate application of the law to certain situations and thereby bring about changes in the law. For example, in the early 1800’s, juries were often unwilling to convict in murder cases unless they thought the killing was “willful, premeditated, or especially vicious.” This is believed to have been a contributing factor to the recognition by legislative bodies of types (murder/manslaughter) and degrees of homicide.

Hale follows his discussion of the republican jury with what he labels the “modern” and [*97] “postmodern” jury. The modern jury continued and refined an emphasis that developed during the era of the republican jury – namely, a desire to insure that jurors were competent to serve their roles. In most parts of the country, this was achieved through the use of key man systems. Jury commissioners collected the names of persons eligible for jury service (typically from a list of registered voters) and selected persons of reasonable intelligence and good character for placement on jury venires from which juries were chosen for individual cases. Initially, the commissioners knew enough of the people on the list to make the determination of suitability to serve based on personal knowledge. As many areas became too populated for this process to work, prospective jurors were called in for interviews and eventually this often gave way to the use of questionnaires.

The obvious problem with the key man system was its propensity for discrimination, especially against blacks in the South. Jury commissioners often excluded blacks because blacks were not on the lists from which the commissioners began their work, the commissioners did not want blacks on juries, or the commissioners only selected persons they knew (and they did not know any black persons).

By the middle of the twentieth century, the United States Supreme Court began to get involved in the jury selection process. Initially, its concern was improper discrimination. The Court used the Equal Protection Clause of the Fourteenth Amendment to prohibit the exclusion of persons based on race. This issue typically arose in criminal cases and required defendants to prove intentional discrimination on the part of government officials. Eventually, the Court shifted its focus (in criminal cases, at least) from the Equal Protection Clause to the Sixth Amendment right to a jury trial. Under this constitutional provision, the Court prohibits the “systematic exclusion” of “cognizable groups” from the jury selection process. The jury selection process as a whole must represent a “fair cross section of the community.”

This shift from a focus on discrimination to a requirement that juries be representative is quite significant. It eliminates the need to prove that the underrepresentation of a group was intentional. It also broadens the net of protection to groups who would not receive protection under the Equal Protection Clause, although the Supreme Court has not yet specifically recognized a group entitled to protection under the Sixth Amendment that is not also entitled to protection under the Fourteenth Amendment.

Hale concludes with a discussion of “the vanishing jury.” The use of juries is clearly dwindling. Empirical studies suggest that, in the last 40-50 years, the percentage of civil and criminal cases decided by jury trials has dropped by roughly two-thirds (although the rate of cases disposed of by jury trials was never very high). Hale attributes this diminishment in jury trials to a large increase in the workload of the courts, combined with a substantial shift in caseload toward more complex cases.

The increase in workload and case complexity has led to an increased emphasis on case management in the federal courts – settlement conferences, dismissal of cases for “failure to state a claim upon which relief can be granted,” (p. 350) and a desire by judges to dismiss weak complaints before parties can abuse the right to discovery. The role of juries has also been diminished by the movement toward an administrative state, where administrative regulations have become ubiquitous and administrative hearings – where juries are not allowed – are utilized to resolve legal disputes arising under administrative regulations.

The advent of federal sentencing guidelines (and presumably many state sentencing guidelines) is viewed as having mixed effects on the utilization of juries. The guidelines specify many factors that aggravate the sentences to be awarded in federal criminal cases. The Supreme Court decided several cases in the early 2000’s that require a jury to decide on any facts used to increase the severity of a criminal sentence. While this reinvigorated the republican notion that juries serve as a control on the judiciary, the guidelines also increased the maximum punishment for a large number of criminal [*98] offenses. This increase in sentence severity substantially expanded the ability of federal prosecutors to extract plea agreements from defendants (thereby avoiding jury trials).

Hale’s ultimate concern is that the shift in the last 60-70 years toward an emphasis on insuring that juries are representative has derailed the system from the equally important task of “winnow[ing] jury lists in search of those citizens who are most suitable for jury service” (p. 415). He never defines what he means by “suitable,” but he does make the practical recommendation that the Judicial Conference of the United States reestablish its Committee on the Jury System (which it abolished in 1987) and task it with this responsibility. Curiously, he makes no significant recommendations for reversing the trend toward “the vanishing jury.”

THE JURY IN AMERICA is an excellent historical examination of American juries. The book does an excellent job of examining how the political role of juries has changed. A reasonable argument is presented that juries have transitioned from a role in the early history of the country, where they were engaged in a kind of joint venture with judges to determine what the law meant, to a contemporary role in which they are supposed to balance competing biases. Hale argues that the Supreme Court believes that representative juries are needed to insure that different biases are as well represented on juries as possible, in order for the biases to cancel out each other.

The Supreme Court has also decided in some recent cases that peremptory challenges may not be utilized to remove blacks or women from juries. These holdings are enforced by requiring litigants to provide a racially (or gender) neutral explanation for their use of peremptory challenges when it appears that the challenges are being used to strike blacks or women. However, it is generally accepted that litigants have little difficulty in providing the required explanations, whether or not they are legitimate. This has let some prominent commentators and jurists (most notably Justice Thurgood Marshall) to conclude that the only answer to this dilemma is to eliminate peremptory challenges.

Hale makes a convincing argument that this would be a mistake. By requiring that only objective criteria be used in the early stages of jury selection, there are many more jurors in the venires that are presented to the parties at trial who lack the objectivity or necessary intellectual skills to deal with the issues presented by a trial. Peremptory challenges are needed, in Hale’s view, to enable the parties to feel that they have had a fair opportunity to remove “unsuitable” jurors.

As with most books of the size and scope of THE JURY IN AMERICA, the book has weaknesses. Much more attention should have been given to the issue of jury instructions by judges. Most (if not all) states have model jury instructions that judges typically utilize when they instruct juries on the law relevant to a particular case. To what extent do judges tend to read these instructions to juries (out of a desire to avoid having a jury verdict overturned because the jury was not properly instructed)? Does reading instructions to a jury make it difficult for the jury to understand the instructions and therefore interfere with their ability to render fair verdicts?

There is also no significant discussion of Supreme Court cases dealing with jury size and the required extent of jury agreement. The Supreme Court permits juries as small as six in criminal cases. Is this too small to permit juries to be representative of the community and to permit adequate group dynamics? The Supreme Court has also permitted non-unanimous verdicts. Is this consistent with what the Framers intended and, even if so, is it desirable?

Hale gives significant attention to the evolution of jury nullification. He puts it in the context of the generally accepted authority of juries in the Nineteenth Century to come to its own understanding of the law (after being instructed on the law by a judge). However, he does not give much attention to the normative question of whether jury nullification is a good idea. Nor does he address the issue of whether juries should be told that they possess the power to refuse to convict in a criminal case where they [*99] think conviction would be unfair or otherwise undesirable.

Finally, Hale often focuses on developments in federal courts. There seems to be an implicit expectation that the reader will generalize those developments to the state courts. Of course, there is more information available about federal courts because they have been studied more. However, the overemphasis on federal course should have been explained in more depth to the reader. There should also have been some discussion as to whether (or at least whether it is possible to determine if) federal court developments have taken place in state courts as well.

These criticisms notwithstanding, THE JURY IN AMERICA provides very useful information about and perspective on American juries. The book would be tough sledding for undergraduate students, but useful in appropriate graduate course and very helpful for teachers of courses on judicial process.

© Copyright 2016 by author, Jack E. Call