The Jury: Trial and Error in the American Courtroom
The Private Diary of an O.J. Juror: Behind the Scenes of the Trial of the Century
Hung Jury: The Diary of a Menendez Juror
About the case of California v. Simpson, one thing is certain: it has been in no way typical or even illustrative of criminal trials. Simpson’s fame, the huge cast of lawyers, the length of the trial, the intricacy of testimony, the thousands of hours on television, the bizarre taped statements of Mark Fuhrman—there has never been anything like it.
Still, legally speaking, the jury is the only audience. Even as millions have been watching, the evidence and exhibits all aim at swaying the small group who will be voting on a verdict. So for the rest of us, much of the drama consists of trying to guess how members of the panel are reacting to witnesses, reenactments, even to the composure of the man accused of a double murder. To this end, Court TV and CNN call in lawyers as commentators, since they are supposed to know how jurors respond to what happens in a courtroom. However, some recent books on juries, coupled with my own experience, have led me to conclude that lawyers may not be the best judges of how juries and jurors behave. What goes on within those closed rooms, where citizens are essentially on their own, often seems to elude even the shrewdest of legal experts.
Stephen Adler and Jeffrey Abramson provide very different pictures of these private proceedings. Adler discusses five cases, each of which, he seeks to show, resulted in an erroneous verdict. He says they are a fair sample of what is occurring in court-rooms every day. In the case accusing Imelda Marcos of stealing millions from the Philippine government, jurors were manipulated by astute lawyers and ignored convincing evidence showing that she had been stashing money away for years. In another case, where one tobacco company charged another with predatory price-cutting, the jurors understood only a small amount of the testimony. And in two local cases involving murder charges, they believed witnesses of dubious reliability. These results have led Adler to wonder “whether juries do anything well enough to justify our continuing reliance on them.”
Not the least problem, Adler says, is the practice that allows lawyers immense freedom to reject potential jurors. While covering trials as legal editor for The Wall Street Journal, he observed that “many of those who are removed appear to be more alert and unbiased than many who are seated.” Indeed, most of those chosen “are egregiously bad at determining when someone is telling the truth, inadvertently giving false testimony, or lying.” This would happen less often, he writes, if jurors were made aware of research findings showing that “liars typically make fewer hand gestures” and “tend to relax their face muscles.” Judges, he suggests, should “incorporate” such notions “into their legal instructions.”
But to Adler’s mind, even such steps are unlikely to alter the spectacle of juries “failing to see through the cheapest appeals to sympathy or hate.” The system, in his view, tends to winnow out the jurors who might be more …