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The Role and History of Juries: Jury Nullification and Verdict Justification, Exercises of Law

The Royal Conservatoire of Scotland (RCS)Law

The history and role of juries in England and the United States, focusing on jury nullification and verdict justification. how juries acted as a check against the government in England and the American colonies, the requirements for effective jury nullification, and the criticism of jury nullification by legal scholars. Additionally, the document covers special verdicts, models of jury composition, and agreements between judges and juries. It also touches upon the use of formal and informal controls to adjust erroneous jury verdicts.

What you will learn

  • How did the American colonists adopt the English jury model?
  • What was the original purpose of juries in England?
  • What are the arguments against jury nullification?
  • What is verdict justification and how does it relate to juries?
  • What are the requirements for effective jury nullification?

Typology: Exercises

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DUDZINSKI.DOCX (DO NOT DELETE) 8/15/2013 2:03 PM
1615
JUSTIFICATION FOR JURIES: A COMPARATIVE
PERSPECTIVE ON MODELS OF JURY COMPOSITION
JANE E. DUDZINSKI*
This Note compares the American jury model, where a group of
citizens deliberates, with the European model, where citizens and
judges deliberate together. It weighs the benefits and detriments of
each model and concludes that the American jury model is superior
because it works better in practice. It demonstrates that all-citizen ju-
ries are competent—they deliver verdicts with which judges agree,
handle complex cases, do not demonstrate bias toward or against cer-
tain parties, and determine damages reliably. In addition, serving on
a jury of one’s peers has been linked to increased civic participation,
and juries have the power of nullification. In contrast, the European
model seems like a good idea in theory but does not work well in
practice because judges tend to dominate deliberations, which renders
citizen participation meaningless.
This Note also addresses one of the disadvantages of the Ameri-
can jury model—the widespread negative public perception of juries,
which results, in part, from verdicts that appear not to make sense.
Examples include the McDonald’s coffee spill case, the acquittal of
O.J. Simpson, and, most recently, the acquittal of Casey Anthony. To
combat this negative public image, this Note recommends borrowing
a feature of many European jury systems called “verdict justifica-
tion,” wherein a jury is required to answer a series of questions or
provide a brief rationale for its verdict. This Note argues that this
modification to the American jury system could improve a jury’s ac-
countability to the public as well as help lawyers and parties better
understand a jury’s decision.
* J.D. 2013, University of Illinois College of Law; B.A. 2006, English and German, St. Olaf
College. I am grateful to Professor Suja Thomas who sparked my interest in this topic. Special thanks
to my Note Editors Aaron Braake and Katie Robillard who gave me helpful comments. Finally, thank
you to my parents, for driving to Champaign to bring me food during final exams; to my little sister,
for reminding me that law school cannot control me; and to Tony, for sitting on my futon and listening
to me talk about juries for seven months.
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Download The Role and History of Juries: Jury Nullification and Verdict Justification and more Exercises Law in PDF only on Docsity!

JUSTIFICATION FOR JURIES: A COMPARATIVE

PERSPECTIVE ON MODELS OF JURY COMPOSITION

JANE E. DUDZINSKI*

This Note compares the American jury model, where a group of

citizens deliberates, with the European model, where citizens and

judges deliberate together. It weighs the benefits and detriments of

each model and concludes that the American jury model is superior

because it works better in practice. It demonstrates that all-citizen ju-

ries are competent—they deliver verdicts with which judges agree,

handle complex cases, do not demonstrate bias toward or against cer-

tain parties, and determine damages reliably. In addition, serving on

a jury of one’s peers has been linked to increased civic participation,

and juries have the power of nullification. In contrast, the European

model seems like a good idea in theory but does not work well in

practice because judges tend to dominate deliberations, which renders

citizen participation meaningless.

This Note also addresses one of the disadvantages of the Ameri-

can jury model—the widespread negative public perception of juries,

which results, in part, from verdicts that appear not to make sense.

Examples include the McDonald’s coffee spill case, the acquittal of

O.J. Simpson, and, most recently, the acquittal of Casey Anthony. To

combat this negative public image, this Note recommends borrowing

a feature of many European jury systems called “verdict justifica-

tion,” wherein a jury is required to answer a series of questions or

provide a brief rationale for its verdict. This Note argues that this

modification to the American jury system could improve a jury’s ac-

countability to the public as well as help lawyers and parties better

understand a jury’s decision.

  • J.D. 2013, University of Illinois College of Law; B.A. 2006, English and German, St. Olaf College. I am grateful to Professor Suja Thomas who sparked my interest in this topic. Special thanks to my Note Editors Aaron Braake and Katie Robillard who gave me helpful comments. Finally, thank you to my parents, for driving to Champaign to bring me food during final exams; to my little sister, for reminding me that law school cannot control me; and to Tony, for sitting on my futon and listening to me talk about juries for seven months.

1616 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

I. INTRODUCTION

The use of juries is on the decline in the United States.^1 The use of

juries is also on the decline in several established European countries.^2

Many emerging democracies formerly under communist rule, however,

have recently implemented or resurrected the jury system.^3 And even

some long-established countries recently have started to use juries.^4

What accounts for this discrepancy in the use of citizen participation

throughout the world?

A natural starting point for answering this question involves a basic

comparison of the primary jury models used in different countries. The

essence of a jury is a group of citizens deliberating together, free from

outside influences, to determine guilt or liability.^5 Since its inception, this

essence has morphed into countless forms, which legal scholars have

since divided into three main categories: (1) the continental jury model,

which is made up of citizens only, (2) the collaborative court model, in

which citizens and judges deliberate together, and (3) the pure lay judge

model, in which citizens are temporarily appointed as judges.^6 An exam-

ination of these models will inform our understanding of the American

jury system, which according to some observers is “under concerted at-

tack.”^7

Part II of this Note provides a brief history of the jury trial right and

a comprehensive discussion of the various models of jury composition,

with an emphasis on the first two models. Part II also introduces the

concept of verdict justification, a feature of some continental juries, and

the role it can play in a jury’s accountability. Part III analyzes the bene-

fits and detriments of the continental jury and the collaborative court.

Finally, Part IV determines that, while the continental jury is the prefer-

able jury model, the American jury system could benefit from adopting a

form of verdict justification.

  1. See Honorable William G. Young, Vanishing Trials, Vanishing Juries, Vanishing Constitu- tion , 40 S UFFOLK U. L. REV. 67, 73 (2006).
  2. See, e. g ., Sally Lloyd-Bostock & Cheryl Thomas, The Continuing Decline of the English Jury , in WORLD J URY SYSTEMS 53, 53 (Neil Vidmar ed., 2000); John D. Jackson & Nikolay P. Kovalev, Lay Adjudication and Human Rights in Europe , 13 COLUM. J. EUR. L. 83, 119 (2006).
  3. See Jackson & Kovalev, supra note 2, at 119–20; Brent T. White, Putting Aside the Rule of Law Myth: Corruption and the Case for Juries in Emerging Democracies , 43 CORNELL I NT’ L L.J. 307, 310 (2010).
  4. See Hiroshi Fukurai, The Rebirth of Japan’s Petit Quasi-Jury and Grand Jury Systems: A Cross-National Analysis of Legal Consciousness and the Lay Participatory Experience in Japan and the U. S ., 40 CORNELL I NT ’ L L.J. 315, 322 (2007).
  5. See Neil Vidmar, A Historical and Comparative Perspective on the Common Law Jury , in WORLD J URY S YSTEMS 1, 1 (Neil Vidmar ed., 2000).
  6. See Valerie P. Hans, Jury Systems Around the World , 4 A NN. REV. L. & S OC. S CI. 275, 278– (2008); Jackson & Kovalev, supra note 2, at 94–95.
  7. See NEIL VIDMAR & VALERIE P. HANS , A MERICAN J URIES : THE VERDICT 16 (2007).

1618 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

B. Key Features of Juries

There are two key features of juries that are particularly relevant to

this Note: (1) jury nullification and (2) special verdicts or verdict justifi-

cation. This Section provides a brief background and context for these

features as they relate to modern jury systems.

Jury nullification, which occurs only in criminal cases, is defined as a

“jury’s knowing and deliberate rejection of the evidence or refusal to ap-

ply the law.”^17 While a jury is legally required to “determine the facts

and apply the law,”^18 a jury may deviate from this obligation “because the

jury wants to send a message about some social issue that is larger than

the case itself or because the result dictated by law is contrary to the ju-

ry’s sense of justice, morality, or fairness.”^19 In order for jury nullifica-

tion to be effective, a ban on double jeopardy and an absolute right to

trial by jury are required—if a defendant can be tried again or a judge

can overturn a jury’s acquittal, jury nullification has no force. 20 Many le-

gal scholars are highly critical of jury nullification.^21

A special verdict, which may apply in either criminal or civil cases,

involves giving the jury a series of questions to answer in addition to re-

turning a verdict.^22 In the United States, such practice is left to the

judge’s discretion, while in many European jury systems, such practice is

required.^23 Even if jurors are asked to return a special verdict, their de-

liberations remain confidential.^24 U.S. courts rarely use special verdicts,

in part because of concerns that juries would lose their independence or

feel pressure to convict.^25 Some legal scholars believe that increased use

of special verdicts could improve the accuracy of verdicts because they

  1. BLACK ’ S LAW DICTIONARY 936 (9th ed. 2009). While there is no jury nullification doctrine in civil law, a civil jury may intentionally disregard the law or the evidence, but both parties have a right to appeal. See Andrew D. Leipold, Rethinking Jury Nullification , 82 VA. L. REV. 253, 267 n. (1996).
  2. See RONALD JAY A LLEN ET AL ., CRIMINAL PROCEDURE: A DJUDICATION AND RIGHT TO COUNSEL 1272 (2011).
  3. BLACK ’ S LAW DICTIONARY 936 (9th ed. 2009).
  4. See A LLEN ET AL ., supra note 18, at 1494–98.
  5. See, e. g ., Leipold, supra note 17, at 257 (“[T]he nullification doctrine exerts an enormous influence over the criminal process, especially in cases where a jury does not exercise its power. What- ever the benefits that might arise in the few cases where a jury acquits against the evidence, they pale in comparison to the doctrine’s undesirable collateral effects.”); see infra Part III.A.1.d (discussing jury nullification).
  6. See FED. R. CIV. P. 49(b).
  7. See infra Part II.C.1 (discussing verdict justification).
  8. See John D. Jackson, Making Juries Accountable , 50 A M. J. C OMP. L. 477, 495–96 (2002) (noting that courts take significant measures to guarantee that what happens in the jury deliberation room is protected).
  9. See Stephan Landsman, The Civil Jury in America , in W ORLD J URY S YSTEMS 381, 399– (Neil Vidmar ed., 2000); Leipold, supra note 17, at 277. Courts have noted the interplay between spe- cial verdicts and jury nullification. See, e. g ., United States v. Desmond, 670 F.2d 414, 418 (3d Cir.
  1. (“Underlying this aversion is the feeling that denial of a general verdict might deprive the de- fendant of the right to a jury’s finding based more on external circumstances than the strict letter of the law.”).

No. 4] JUSTIFICATION FOR JURIES 1619

could help the jury focus on the relevant elements of the case, especially

when there are several parties or counts involved.^26

C. Models of Jury Composition

The models of jury composition that are used throughout the world

can be grouped into three main categories. The first model, known as

the continental jury model, is composed exclusively of citizens.^27 The

second model, known as the collaborative court model, is made up of a

combination of citizens and judges.^28 The third model, known as the pure

lay judge model, is composed of lay judges who do not have formal legal

training.^29 This Section describes each model in detail, with an emphasis

on the first two models.

1. Continental Jury Model

The continental jury is comprised entirely of citizens, who are cho-

sen from the general population. 30 Based on the English tradition, this

model is most frequently found in common-law countries, including the

United States. 31 All-citizen juries have the task of collectively deciding

whether a defendant is guilty or liable.^32 Notably, in criminal cases, this

responsibility generally extends to deciding the verdict but not a defend-

ant’s sentence.^33 During deliberation, the jury is “carefully insulated”

from the judge.^34 Up until that point, however, judges preside over jury

trials, rule on whether evidence is admissible, and give the jury legal

rules.^35

In addition to deliberating and delivering a verdict, some countries

with the continental jury model require a form of verdict justification. 36

In both Russia and Spain (a civil-law country), juries must answer a

“questions list” about the case.^37 In Spain, for example, the jury votes

separately on the list’s factual propositions—each identified as “favora-

  1. See Leipold, supra note 17, at 276–78. Courts have also weighed in on the issue of what role special verdicts should have in the jury system. See, e. g ., Desmond , 670 F.2d at 418 (discussing situa- tions in which a special verdict might be necessary as well as potential benefits to a defendant).
  2. Hans, supra note 6, at 278; Jackson & Kovalev, supra note 2, at 95–96.
  3. Hans, supra note 6, at 279–80; Jackson & Kovalev, supra note 2, at 96–99.
  4. Hans, supra note 6, at 280; Jackson & Kovalev, supra note 2, at 99.
  5. Hans, supra note 6, at 278.
  6. See Vidmar, supra note 5, at 1. Some civil-law countries, such as Spain, employ the continen- tal jury model. Hans, supra note 6, at 278; see Stephen C. Thaman, Spain Returns to Trial by Jury , 21 HASTINGS I NT ’L & COMP. L. REV. 241, 246 (1998).
  7. See Vidmar, supra note 5, at 1.
  8. Hans, supra note 6, at 278–79.
  9. Id. at 279; see also Jackson & Kovalev, supra note 2, at 96 (“[P]rofessional judges cannot de- liberate together with juries while they are deciding on the verdict.”).
  10. Hans, supra note 6, at 279 (noting that, in addition, some jurisdictions allow judges to com- ment on evidence); Jackson & Kovalev, supra note 2, at 96.
  11. Ana M. Martín & Martin F. Kaplan, Psychological Perspectives on Spanish and Russian Ju- ries , in UNDERSTANDING WORLD J URY S YSTEMS THROUGH S OCIAL PSYCHOLOGICAL R ESEARCH 71, 73 (Martin F. Kaplan & Ana M. Martín eds., 2006).
  12. Id.

No. 4] JUSTIFICATION FOR JURIES 1621

room, they sit apart from the judge until deliberation.^52 This model has

been described as a “hybrid model which represents a via media between

the continental jury courts and the Schöffen Courts.”^53

Third, the expert assessor model involves two or three citizens with

particular expertise and one or more judges.^54 This model has developed

in a number of European countries as well as in Thailand.^55 Analogous

to the “special juries” that were historically used in England, this model

employs citizens who have particular knowledge and experience that is

relevant to a case, such as teaching, medicine, or engineering.^56 For in-

stance, teachers or professors would serve on a jury if the case involved a

juvenile defendant.^57

3. Lay Judge Model

This model involves only lay judges, who do not have formal legal

training, and may be known as “lay judges,” “justices of the peace,” or

“lay magistrates.”^58 Such individuals sit alone or in groups to decide cas-

es, which tend to be “minor” and often take place in the lower courts. 59

Lay judges serve for an extended period of time, sometimes even as their

occupation. 60 This model does not feature prominently in this Note,

which focuses primarily on comparisons and contrasts between the con-

tinental jury model and the collaborative court model in both criminal

and civil contexts.

III. A NALYSIS

Countries throughout the world have adopted various models of ju-

ry composition. Most common-law countries employ the continental jury

model (juries composed exclusively of citizens), while most civil-law

countries have implemented some form of the collaborative court model

(juries made up of both citizens and judges).^61 The following analysis

weighs the merits and pitfalls of these two models.

A direct comparative analysis of models of jury composition across

various countries is a challenging but potentially rewarding endeavor.

One prominent jury scholar has noted that “explicitly comparative analy-

ses of the jury and other forms of lay participation are rare.”^62 Compari-

sons across countries can provide valuable insight into “societal-level ef-

  1. Hans, supra note 6, at 279; Jackson & Kovalev, supra note 2, at 98.
  2. Jackson & Kovalev, supra note 2, at 97.
  3. Hans, supra note 6, at 279; Jackson & Kovalev, supra note 2, at 98–99.
  4. Hans, supra note 6, at 279–80; Jackson & Kovalev, supra note 2, at 98.
  5. See Vidmar, supra note 5, at 22–26.
  6. Hans, supra note 6, at 279 (noting that this is the case in Croatia).
  7. Id. at 280; Jackson & Kovalev, supra note 2, at 99.
  8. Hans, supra note 6, at 280; Jackson & Kovalev, supra note 2, at 99.
  9. Hans, supra note 6, at 280.
  10. See supra Part II.C.
  11. Hans, supra note 6, at 277.

1622 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

fects” of jury systems, such as whether participation as a juror affects a

citizen and his relationship with the government.^63 On the other hand,

comparative law scholars caution against transplanting legal institutions

from common-law countries to civil-law countries. 64 With these concerns

in mind, the following analysis seeks to compare and contrast the two

major models of lay participation worldwide with an aim toward discern-

ing which features of which models work best on a practical level.

Section A discusses the advantages of the continental jury model

and addresses some of the common criticisms of that system. Section A

then explores the disadvantages of that model, with an emphasis on the

negative public perception of juries. Section B lays out the theoretical

advantages and the practical disadvantages of the collaborative court

model.

A. Continental Jury Model

The continental jury model, rooted in the English tradition, has

both advantages and disadvantages. This Section relies primarily on the

American jury system as the example of the continental jury model.

1. Advantages

The continental jury model has several advantages over the collabo-

rative court model. First, despite claims to the contrary, juries comprised

exclusively of citizens deliver verdicts with which judges agree, handle

complex cases without significant input from a judge, do not demonstrate

bias toward or against certain parties, and can determine damages relia-

bly.^65 Second, after the all-citizen jury delivers its verdict, there are con-

trols in place if the verdict is erroneous.^66 Third, studies have demon-

strated that service on a jury of peers can lead to other forms of civic

participation.^67 Fourth, all-citizen juries have the power, though not nec-

essarily the right, to nullify the law.^68

a. Juries Get It Right

Many individuals, from American citizens to lawyers and academics

in other countries, 69 believe that juries comprised of citizens are unrelia-

ble and make mistakes in their verdicts. 70 Specifically, such individuals

  1. Id.
  2. Id. at 278.
  3. See Neil Vidmar, The American Civil Jury for Ausländer (Foreigners) , 13 DUKE J. COMP. & I NT ’ L L. 95, 122 (2003).
  4. Id. at 119–20.
  5. See, e. g ., John Gastil et al., Civic Awakening in the Jury Room: A Test of the Connection Be- tween Jury Deliberation and Political Participation , 64 J. POL. 585, 585 (2002).
  6. See VIDMAR & HANS , supra note 7, at 227.
  7. Vidmar, supra note 65, at 95.
  8. See VIDMAR & HANS , supra note 7, at 16.

1624 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

The findings of these studies are noteworthy because they can help

rebut common negative perceptions of juries, in particular that a legal

professional such as a judge would make better decisions than a group of

untrained lay citizens. The issue that remains is how to actually change

public perceptions of juries, given this important information.

ii. Complex Cases

Studies have shown that all-citizen juries are capable of handling

seemingly complex cases. A complex case may refer to: (1) the type of

case, e.g., medical malpractice or products liability, (2) a large number of

plaintiffs or defendants involved, or (3) several weeks of trial.^83 Factors

such as complex evidence (especially involving the use of experts), a

large amount of evidence, or complex law could contribute to the com-

plexity of the case.^84

The use of expert evidence at a trial may contribute to the percep-

tion that the case is complex.^85 Relatively recent scientific advancements,

such as in the area of DNA, tend to figure prominently into this percep-

tion. 86 Studies of juries handling such cases, however, disprove this myth.

One study of twelve trials thought to be complex found that in only two

of the cases was the expert evidence so complicated that only another

expert could comprehend it. 87 This finding would put juries in the same

position as judges—in other words, no amount of legal training would af-

fect an individual’s ability to understand the expert evidence.^88 The study

“concluded that there was no clear evidence of the juries being befud-

dled... .”^89 In addition, Neil Vidmar conducted interviews with individ-

uals who had just served on juries that had reached verdicts in supposed-

ly complex cases involving medical issues and battling experts.^90 In one

case, which involved surgery for urinary incontinence, he found that “the

jurors had a basic intellectual grasp of the case.”^91 Acknowledging that it

is perhaps not possible to know whether any of the juries in his study

reached the “correct” result, he determined that “the jurors were not

passive in evaluating the experts or their testimony.”^92 He based this

conclusion on the fact that the jurors could identify the underlying disa-

greements between the experts, often showed skepticism of the experts

  1. See Vidmar, supra note 65, at 99 n.31 (“Judges and legal schools do not always agree on what constitutes a complex case.”).
  2. Id. at 99.
  3. See id. at 102–05.
  4. See id.
  5. See Richard Lempert, Civil Juries and Complex Cases: Taking Stock After Twelve Years , in VERDICT : A SSESSING THE CIVIL J URY S YSTEM 181, 185–90 (Robert E. Litan ed., 1993).
  6. See Vidmar, supra note 65, at 99–100.
  7. See id. at 100.
  8. See NEIL VIDMAR , MEDICAL MALPRACTICE AND THE A MERICAN J URY : CONFRONTING THE MYTHS ABOUT JURY I NCOMPETENCE , DEEPS POCKETS , AND OUTRAGEOUS DAMAGE A WARDS 9 (1995).
  9. Vidmar, supra note 65, at 103–04; see also VIDMAR , supra note 90, at 131–32.
  10. See Vidmar, supra note 65, at 104.

No. 4] JUSTIFICATION FOR JURIES 1625

for various reasons, took into account if expert testimony was lacking in

some way, and judged expert testimony against the other evidence of the

trial.^93 Other comparable studies have also found that jurors do not ac-

cept expert testimony at face value but rather judge it as they would oth-

er evidence.^94

The type of case—such as medical malpractice or products liabil-

ity—may also contribute to the perception that the case is complex. In

medical malpractice cases, for instance, the jury is asked to judge negli-

gence by a “standard of medical care,” namely what a reasonable doctor

or hospital in a certain field and community would have done.^95 For this

reason, doctors, hospitals, and insurance companies often contend that

only doctors are capable of assessing this standard of care.^96 Again, stud-

ies disprove these claims quite conclusively. For example, one study

compared 988 jury verdicts with independent assessments made by doc-

tors and found that the jury verdicts correlated with instances where the

doctors had or had not found negligence on their own. 97 Like the agree-

ment between judges and juries discussed above, the general agreement

between doctors and juries proves that medical cases are not, in fact, be-

yond the understanding of a jury.^98

In conclusion, actual studies and research disprove the common crit-

icism that juries cannot handle complex matters. Rather, these studies

show that “civil juries approach the issue of liability with diligence and

intelligence.”^99 Whether juries deliver accurate verdicts, at least we know

that they can take on cases that have the potential to confuse an ordinary

citizen or even a judge.

iii. Jury Bias in Favor of Plaintiffs

Juries are not necessarily biased toward plaintiffs and against big

businesses. To investigate these common bias claims, Valerie Hans con-

ducted the “Business Jury Project,” in which she interviewed 269 jurors

from 36 different civil cases during a one-year period at a state trial court

of general jurisdiction. 100 Almost all of the cases involved an individual

plaintiff suing a corporate defendant, for either tort- or contract-related

issues.^101

  1. Id.
  2. See Sanja Kutnjak Ivkovich & Valerie P. Hans, Jurors and Experts , 16 A DVOCATE: THE MAGAZINE FOR DELAWARE TRIAL LAWYERS 17, 19–20 (1994).
  3. Vidmar, supra note 65, at 100.
  4. Id.
  5. See Mark I. Taragin et al., The Influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims , 117 A NNALS I NTERNAL MED. 780, 780–81 (1992) (explain- ing that of the 8231 cases studied, only twelve percent resulted in a jury verdict).
  6. See VIDMAR , supra note 90, at 265.
  7. Vidmar, supra note 65, at 107.
  8. HANS , supra note 71, at 17–21.
  9. Id. at 18. The study involved twenty-eight tort cases and eight contract cases, which is gener- ally representative of the types of civil cases decided by juries in other states. Id.

No. 4] JUSTIFICATION FOR JURIES 1627

In sum, Hans has put forth significant scholarship disproving that

juries tend to be anti-plaintiff and pro-business. Notwithstanding the

outcome of the case—that is, whether juries tend to decide cases in favor

of plaintiffs or defendants—ample research demonstrates that juries are

thoughtful, even critical, of both sides and do not determine liability

based solely on the identity of the parties.

iv. Damages

Studies have demonstrated that juries are just as competent as judg-

es when it comes to estimating damages. Neil Vidmar conducted a series

of two experiments in which he compared damages awarded by lay per-

sons with damages awarded by senior lawyers, some of whom had served

as judges.^114 In the first experiment, the jurors and lawyers were asked

individually to estimate an award for pain and suffering in an actual med-

ical negligence case.^115

In terms of the amount of damages awarded, Vidmar found that

there was “no support for the hypothesis that jurors are more generous

in awarding noneconomic damages.”^116 For example, the mean award for

the jurors was $51,852, and the mean award for the lawyers was

$50,433.^117 Furthermore, in terms of the variation of awards, Vidmar

found that both jurors and lawyers, as individuals, awarded amounts that

varied considerably from their peers. 118 For instance, jurors awarded

amounts between $11,000 and $197,000, while lawyers awarded amounts

between $22,000 and $82,000.^119

Vidmar further compared individual lawyers’ awards with awards

made by artificially constructed juries.^120 To accomplish this task, Vidmar

randomly selected jurors, put them in groups of six or twelve, and calcu-

lated an average damage award based on the median award given by

each member.^121 The average award for twelve-person juries was

$48,900, and the average award for six-person juries was $51,390.^122

These figures were similar to the mean award given by legal profession-

als ($50,433).^123 Even more significantly, the standard deviation (which

signals variability) was $10,970 for the twelve-person juries and was

$12,290 for the six-person juries, whereas the standard deviation was

$16,730 for individual lawyers.^124 Thus, Vidmar concluded that “juries

  1. Vidmar, supra note 65, at 114 (briefly summarizing the results). For a more in-depth descrip- tion of the experiments, see VIDMAR , supra note 90, at 221–35.
  2. VIDMAR , supra note 90, at 222–24.
  3. Id. at 225.
  4. Id.
  5. See id.
  6. Id. Vidmar noted that awarding noneconomic damages is a “pretty subjective process even for trained, experienced legal professionals.” Id. at 226.
  7. Id. at 226–29.
  8. Id. at 227.
  9. Id. at 227–28.
  10. Id.
  11. Id.

1628 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

yielded more reliable estimates of noneconomic damages than the legal

professionals... .”^125

In conclusion, juries may, in fact, be more reliable than individual

judges in determining certain types of damages. Vidmar based this con-

clusion on both the amount and the variability of the awards in his exper-

iment.^126 Such a conclusion speaks to the inherent advantages of a conti-

nental jury. Jurors, by combining their unique, individual perspectives,

can overcome the fact that they have little or no experience in the law

and actually make decisions that match and even exceed those of indi-

vidual judges, who have experience and knowledge but deliberate

alone.^127

b. Controls

The second significant advantage to the continental jury model is

the various controls that may be triggered if, in fact, a jury makes a mis-

take in determining liability or awarding damages.^128 First, there are

formal controls, such as remittitur and appeal.^129 Second, there are in-

formal controls, such as post-verdict negotiations.^130 These controls, in

conjunction with the oversight of the trial judge, provide a valuable

check on the jury’s power.

i. Formal Controls

There are several formal controls in place to address possible errors

in jury verdicts. First, the trial judge in a civil case must agree with a ju-

ry’s verdict and enter formal judgment in order for the verdict to be con-

sidered valid. 131 If the judge determines that the evidence presented did

not justify the verdict, the judge has the power to: (1) set aside part of the

verdict or damages, or (2) set aside the entire verdict and damages, and

order a new trial.^132 The civil defendant may move for a new trial or re-

mittitur, which is a reduction in the verdict.^133 The standard for a court to

find excessive damages is that the jury verdict shocks the judicial con-

science or, in the alternative, the verdict is beyond the maximum a rea-

sonable jury would award. 134 Third, the losing party may appeal the ver-

  1. Id. at 227.
  2. Id. at 227–28.
  3. See Vidmar, supra note 65, at 114.
  4. See id. at 118–19 (discussing possible causes for outlier verdicts, including jury instructions and evidence presented at trial).
  5. See id. at 119–20.
  6. See id. at 120–22.
  7. Id. at 119. In making this determination, a judge must consider the “overwhelming weight of all proof taken together;” the judge cannot merely disagree with the jury’s assessment of witness cred- ibility or weight of the evidence. Landsman, supra note 25, at 403.
  8. Vidmar, supra note 65, at 119–20. In a criminal case, on the other hand, a jury verdict of ac- quittal is basically unreviewable. See supra note 20 and accompanying text.
  9. FED. R. CIV. P. 59; Vidmar, supra note 65, at 119.
  10. See, e. g ., O’Neill v. Krzeminski, 839 F.2d 9, 13 (2d Cir. 1988).

1630 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

however, it is also worth considering in other countries, particularly those

with emerging democracies.^144

i. United States

Studies of American juries have demonstrated an explicit link be-

tween jury service and other forms of civic participation. One study

found that citizens who served on a criminal jury where a verdict was

reached were more likely to vote in future elections than jurors who

could not reach a verdict, were dismissed, or served as alternates.^145 This

result underscores the theory of deliberative democracy, namely that

“citizen deliberation... bolsters civic activity by increasing participants’

levels of political efficacy.”^146 A second study confirmed the link between

jury service and subsequent voting by surveying court and voting records

of more than 13,000 jurors in both criminal and civil cases.^147 Specifically,

the study found that jurors who had not voted with regularity in the past

and served on a criminal jury that deliberated in some capacity, regard-

less of whether a verdict was reached, were more likely to cast a ballot

following their experience on the jury.^148

It is worth noting that this connection between jury service and oth-

er forms of civic participation was found only in criminal trials and not in

civil trials.^149 Valerie Hans has suggested several possible explanations

for this discrepancy, including that the experience of serving on a crimi-

nal jury may seem more like a “meaningful community activity” in which

jurors act together to “reinforce their community values.”^150 Even

though increased civic participation has been proven only in the context

of criminal juries, the existence of such participation in that context re-

mains a significant advantage of the continental jury system because it

extends the value of the jury outside of the courtroom and into citizens’

everyday lives.

ii. Emerging Democracies

Against the backdrop of the studies demonstrating a link between

jury service and civic participation in the United States, recent scholar-

ship has emphasized the potentially significant effects of juries comprised

exclusively of citizens in emerging democracies.^151 Brent White, using

  1. Id. at 285; see White, supra note 3, at 360.
  2. Gastil et al., supra note 67, at 585 (taking into consideration individual jurors’ voting history).
  3. See id. at 586 (citations omitted).
  4. John Gastil et al., Jury Service and Electoral Participation: A Test of the Participation Hy- pothesis , 70 J. POL. 351, 352, 359 (2008).
  5. Id. at 359.
  6. Id. at 356, 359.
  7. Hans, supra note 6, at 285.
  8. White, supra note 3, at 360.

No. 4] JUSTIFICATION FOR JURIES 1631

Mongolia as a case study, makes the case for juries as a viable alternative

to rule-of-law reform.^152

White emphasizes the role deliberation can have in articulating

community values in an emerging democracy like Mongolia.^153 White

posits that jury deliberation could “play a critical role in encouraging

more active civic engagement on important public issues,” such as strik-

ing a balance between traditional ideas about public land and the in-

creasing privatization of land for economic development purposes. 154

Thus, White suggests that juries in Mongolia could “help define and set

legal norms” in this context. 155

In addition to the effects of deliberation, White argues that “[j]uries

can... check judicial corruption and create a public space for the fair

and just resolution of conflict... .” 156 The role of the jury in this regard,

which aligns with the original role of the jury in England and the United

States, is crucial in a country where judges are seen as corrupt and citi-

zens are often mistrustful of the government.^157 White suggests that ju-

ries can check judicial corruption by “dispersing decision-making power”

and “providing a public audience for the exposure of official corrup-

tion.” 158 Although the link between jury service and other forms of civic

participation has not been studied extensively outside of the United

States, there is reason to believe that jury service can have a profound

impact on citizens’ views on and roles in the government in emerging

democracies.

d. Jury Nullification

The fourth advantage to the continental jury model is the phenom-

enon of jury nullification.^159 Jury nullification is controversial and is not

endorsed by the U.S. Supreme Court because it means that juries are ig-

noring or deviating from the law.^160 Still, it remains a powerful feature of

the continental jury.

  1. Id. at 309–10 (arguing that “in emerging democracies, certainty is less important than contex- tualized justice that reflects community values”).
  2. Id. at 360.
  3. Id.
  4. Id.
  5. Id.
  6. Id. at 360–61; see supra Part II.A (discussing the origins of the jury as a check against the government).
  7. See White, supra note 3, at 361.
  8. See VIDMAR & HANS , supra note 7, at 221–40; supra Part II.B.
  9. See John C. Brigham, The Jury System in the United States of America , in UNDERSTANDING WORLD J URY S YSTEMS THROUGH S OCIAL PSYCHOLOGICAL RESEARCH 11, 12–13 (Martin F. Kaplan & Ana M. Martín eds., 2006); see also United States v. Thomas, 116 F.3d 606, 608 (2d Cir. 1997) (hold- ing that a juror could be dismissed for refusing to apply the law as instructed by the court because such action was “an obvious violation of a juror’s oath and duty”).

No. 4] JUSTIFICATION FOR JURIES 1633

Despite the historical role of the American jury, studies have shown

that jury nullification today is not that common. 172 Jurors tend to agree

with judges on verdicts and are often unaware of their power to nullify.^173

Even so, jurors retain the ability to “stand between the accused and an

out-of-touch state.” 174

ii. Emerging Democracies

Jury nullification could have a profound impact in emerging democ-

racies.^175 In such countries, the law may fail to reflect community ideas

about fairness and social justice or may have been put in place anti-

democratically.^176 In his case study of Mongolia, Brent White points to a

bribery law as a potential candidate to demonstrate the power of jury

nullification.^177 The law at issue holds an individual who makes a bribe to

secure government services just as guilty as the public official who solicits

the bribe.^178 White explains that such a law provides no incentive for in-

dividuals to expose public corruption because of fear of punishment

themselves.^179 A jury, however, might refuse to convict such individuals,

which has the potential to nullify the law by opening the door for indi-

viduals to expose government corruption. 180 Like the juries of the early

United States, juries in emerging democracies possess the ability to shape

the contours of their laws through the power of nullification.^181

In summary, the continental jury model has numerous advantages.

Juries made up of only citizens deliver verdicts with which judges agree,

successfully process complex cases, do not demonstrate bias toward or

against certain parties, and determine damages reliably. In the event

that a jury delivers an erroneous verdict, procedural controls can rectify

the situation. In addition, jury service can lead to other forms of civic

participation. Finally, all-citizen juries have the important power of nul-

lification.

  1. VIDMAR & HANS , supra note 7, at 240. But see Leipold, supra note 17, at 254–55 (noting a few examples of recent suspected jury nullification).
  2. VIDMAR & HANS , supra note 7, at 240. This lack of awareness of the power to nullify stems, in part, from the fact that current practice dictates that judges do not instruct jurors regarding this power; see Leipold, supra note 17, at 257.
  3. VIDMAR & HANS , supra note 7, at 240.
  4. See White, supra note 3, at 359.
  5. Id.
  6. Id.
  7. Id. (noting that individuals pay bribes out of necessity because “systemic corruption thrives” in Mongolia).
  8. Id.
  9. Id.
  10. See id. (arguing that “jury nullification itself is part of the law-making project”); supra notes 11–12, 14 (discussing the original purpose of the early English and American juries).

1634 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2013

2. Disadvantages

The continental jury model does have some disadvantages in com-

parison with the collaborative court model. First, negative public percep-

tion of juries is prevalent, both in the United States and abroad.^182 Sec-

ond, many people believe that juries make mistakes by convicting the in-

innocent or acquitting the guilty.^183 Third, there are some consistent

points of disagreement between judges and juries regarding case out-

comes.^184 These Subsections address each of these elements in turn.

a. Negative Public Perception

One disadvantage to the continental jury model is the widespread

negative public perception of juries. 185 In the United States, this attitude

has resulted from certain highly publicized cases in which the news media

has portrayed a jury’s decision in an unfavorable light.^186 In Europe, a

distrustful attitude has developed in countries where the continental jury

has been newly introduced or reinstated.^187 In both situations, these neg-

ative public perceptions threaten the credibility of the jury system as a

whole.^188

i. United States

The negative public perception of juries in the United States results

largely from seemingly unjustified verdicts in a few highly publicized cas-

es. On the civil side, the most symbolic example is the McDonald’s cof-

fee spill case.^189 On the criminal side, infamous cases include the acquit-

tal of O.J. Simpson, and, most recently, the acquittal of Casey

Anthony. 190

  1. See, e. g ., Martin F. Kaplan & Ana M. Martín, Introduction and Overview , in UNDERSTANDING WORLD J URY SYSTEMS THROUGH S OCIAL PSYCHOLOGICAL RESEARCH 1, 4 (Mar- tin F. Kaplan & Ana M. Martín eds., 2006) (describing a “lingering distrust” of continental juries in countries where the jury system has recently been reinstated); Vidmar, supra note 65, at 95 (stating that international practitioners and legal scholars ask the author “to explain the ‘crazy,’ ‘outrageous’ system by which we allow groups of untutored lay persons to decide civil disputes”).
  2. See VIDMAR & HANS , supra note 7, at 191.
  3. See id. at 148–52.
  4. See id. at 16. But see Hans, supra note 6, at 281 (citing public opinion polls in favor of the jury); A M. BAR A SSOC., J URY S ERVICE: I S FULFILLING YOUR CIVIC D UTY A TRIAL? 5 (July 2004), available at http://www.abanow.org/wordpress/ wp-content/files_flutter/1272052715_20_1_1_7_Up load_File.pdf (reporting that seventy-five percent of 1029 American adults polled said they would want their criminal case decided by a jury).
  5. See VIDMAR & HANS , supra note 7, at 16–17.
  6. See Kaplan & Martín, supra note 182, at 4.
  7. See VIDMAR & HANS , supra note 7, at 16.
  8. See Liebeck v. McDonald’s Restaurants, P.T.S., Inc., No. CV-93-02419, 1995 WL 360309 (N.M. Dist. Aug. 18, 1994).
  9. Lizette Alvarez, Florida Mother Is Found Not Guilty of Murder , N.Y. TIMES , July 6, 2011, at A1.