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September/October 2005

The Jury System
An Essay


By Joseph D. Jamail, Jr.

The jury system is the only protection against all of the evil “isms” mankind has dreamed up. The current attack on the jury system did not begin yesterday, but rather almost at the jury system’s beautiful birth. The attack began by those whose privileges, prejudices, and special interests were threatened by the existence of the jury system. These purveyors of special interests have handed the attack down through the years to privileged look-alikes who continue the attack. The courageous trial lawyer who believes his oath includes the protection of his clients’ rights cannot separate these rights from the right of a jury trial in order to afford full protection to clients. We must continue to fight off these attacks on the jury system.
In 1765, Sir William Blackstone, the notable British jurist, wrote the following in his Commentaries on the Laws of England:
“But in settling and adjusting a question of fact, when entrusted to any single magistrate, partiality and injustice have an ample field to range in . . . . Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice.”

“Our civilization has decided, and very justly decided, that determining the guilt or innocence of men is a thing too important to be trusted to trained men. . . . When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing around.” [G.K. Chesteron, “Twelve Men,” in Tremendous Trifles.]
Independence of the jury from interference by the crown was an important aspect of the colonists’ drive to sever their dependence upon Great Britain and provided an impetus to the development of the jury system in America. Colonial judges were instruments of the crown inasmuch as they were appointed by the king, who also determined their salaries. Understandably, during our colonial history, trial judges often dominated jury trials. A preview of radical changes yet to come took place in 1734, however, when John Peter Zenger, a New York City newspaper publisher, was arrested for printing allegedly libelous stories about the royal governor, William Crosby. At the trial, the government-appointed judge, James De Lancy, ordered the jury to decide the sole question of whether Zenger had published the offending statements. Judge De Lancy thought that he, as judge, would then decide whether the statements were libelous. Zenger’s attorney, Andrew Hamilton, advised the jurors that they had the right to decide both the law and the facts. In defiance of the judge’s orders, the jury returned a not guilty verdict and established not only freedom of the press but asserted the independence of the jury from judicial and royal control.1
Haven’t we all recognized, time and again, the extraordinary attention, the high purpose, the dedication, and the spirit of the jury to do the right thing? Haven’t we also seen the collective judgment and conscience of the jury to go beyond what would be expected from each of the individual members; and which collective judgment and conscience, time and again, will cut through hypocrisy, deception, and artifice to find the truth?
Haven’t we marveled at how readily a jury will recognize a liar? Who better to decide the facts: a jaded, experienced judge who has heard it all before or a fresh jury that can bring its collective experience to bear on the facts, uncluttered by any other cases where similar or dissimilar facts would cloud the issue before it?
What’s the first question asked of a potential juror? “Are you familiar with the facts of this case?” And what is the caveat most often repeated to them by the judge? “Don’t judge this case on anything other than the evidence adduced in this courtroom!”
Can any judge - any human - divorce himself from the experiences of a thousand prior cases he has heard? The very inexperience of a jury is its greatest asset. Its transience precludes rigidity of ideas. The jury is not as prone to a mind-set or bias that sometimes characterizes the judges who have seen it all before.
As judges of the facts, jurors bring a composite of learning, judgment, and experience that, regardless of education, surpasses that of any given individual. Jurors also have the vital tool of discussion. They have the opportunity to put the evidence into the crucible of argument, exchange ideas, and distill the evidence, argument, and ideas down to a decision. A judge cannot argue with himself, just as a single person cannot talk himself out of preconceptions or misconceptions.
Juries educate judges on the needs of society. Jurors pass through the judges’ courtrooms by the thousands. The judge is only one court, one mind, and one experience. Our jury system allows society’s problems to be filtered through thousands of minds. There is thus great input from the public.
Further, the jury is totally independent. It is neither elected nor appointed. It answers to no one but its own conscience. It is subject to no control. It is almost always anonymous. The jury system, as I view it, imbues our judicial process with humanity, so that the letter of the law remains tempered by the spirit of law.
Any proposed change to the procedures for jury trials should be subjected to the greatest scrutiny and should avoid the notion of change for change’s sake. The right to have a trial by jury is a fundamental right in our democratic judicial system and should need no citation.
I offer some observations by the United States Supreme Court, which has repeatedly noted that “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.”2
In a recent dissent, Justice Scalia pointedly observed: “When this Court deals with the content of this guarantee - the only one to appear in both the body of the Constitution and the Bill of Rights - it is operating upon the spinal column of American democracy. William Blackstone, the Framers’ accepted authority on English law and the English Constitution, described the right to trial by jury in criminal prosecutions as ’the grand bulwark of [the Englishman’s] liberties . . . secured to him by the great charter.’3 One of the indictments of the Declaration of Independence against King George III was that he had ‘subject[ed] us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws’ in approving legislation ‘[f]or depriving us, in many Cases, of the Benefits of Trial by Jury.’ Alexander Hamilton wrote that ‘[t]he friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury: Or if there is any difference between them, it consists in this, the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government.’”4
When adoption of the Constitution was being debated, Antifederalists like George Mason went so far as to object that under the proposed Constitution the people would not be “secured even in the enjoyment of the benefit of the common law.”5 In particular, the Antifederalists worried about the failure of the proposed Constitution to provide for a reception of “the great rights associated with due process” such as the right to a jury trial [Jay II, at 1256], and they argued that “Congress’s powers to regulate the proceedings of federal courts made the fate of these common-law procedural protections uncertain,” [id., at 1257]. Federalists met this objection by arguing that nothing in the Constitution necessarily excluded the fundamental common-law protections associated with due process, see, e.g., 3 Elliot’s Debates 451 [George Nicholas, Virginia Convention].6 The Seventh Amendment, after all, was adopted to respond to Antifederalist concerns regarding the right to jury trial.7
Justice Murphy’s first words in the United States Supreme Court’s opinion in Jacob v. City of New York cautioned that “[t]he right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts.”8
The Bill of Rights of the Texas Constitution is no less emphatic about the right of Texans to jury trials. Section 15 of the Texas Bill of Rights states that “[t]he right of trial by jury shall remain inviolate.”9 For a right to remain inviolate, it must not diminish over time and must be protected from all assaults. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury should be scrutinized with the utmost care. The right of trial by jury must not be burdened by the imposition of onerous conditions, restrictions, or regulations that diminish such right. Proposals to modify voir dire examination, diminish peremptory strikes, and allow for rehabilitation of prima facie disqualified jurors, however, do just that.
I recognize that the constitutional provision that the right to trial by jury shall remain inviolate does not carry with it a corresponding right that all court rules, procedures, and methods remain forever unchanged. New devices may be used to adapt the ancient institution to present needs and to make of it an efficient instrument in the administration of justice. Indeed, such changes are essential to the preservation of the right to trial by jury. This reality is incorporated into Section 15 of the Texas Bill of Rights, which gives the Legislature the responsibility to pass such laws as are needed to “maintain the purity and efficiency” of the jury system.10
My comments address the concern that any “jury reform” not be used as a stalking horse for more “tort reform.” I don’t want to see the most basic component of our system of justice used as a pawn for ideological innovations and short-sided political agendas. I also don’t want to castrate the professionalism of advocacy by sterilizing the moment of truth.

Endnotes
1. M. Bloomstein, Verdict 23 (1968); McCart, Trial by Jury 8-9 (1964); Van Dyke, Jury Selection Procedures 228 (1977). 2. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501, 79 S.Ct. 948, 952 (1959) (quoting Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 301 (1935). 3. 4 W. Blackstone, Commentaries* 349. 4. The Federalist No. 83, p. 426 (M. Beloff ed. 1987). Neder v. United States, 517 U.S. 1, 30-31, 119 S.Ct. 1827, 1844 (Scalia concurring in part and dissenting in part) (emphasis added). 5. Mason, Objections to This Constitution of Government, in 2 Records of the Federal Convention of 1787, p. 637 (M. Farrand ed. 1911) (Farrand); see also 3 Elliott’s Debates 446-449 (Patrick Henry, Virginia Convention). 6. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 138-139, 116 S.Ct. 1114, 1163-1164 (1996) (Souter dissenting). 7. Id., n. 59 at 164, 1176. 8. Jacob v. City of New York, 315 U.S. 752, 752-753, 62 S.Ct. 854, 854 (1942). 9. TEX.CONST. art. 1 Section 15. 10. TEX.CONST. art 1 Section 15.

Joe Jamail is a partner in the law firm of Jamail & Kolius, located in Houston, Texas. Jamail has been called the “King of Torts” and obtained one of the largest jury verdicts in legal history ($11.12 billion) in Pennzoil v. Texaco.


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