Friday, March 1, 2013
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted The Jury and Constitutional Identity on SSRN. Here is the abstract:
This article seeks to reframe how citizens see jury service in America.
Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more important than the right to vote as a means to ensure a robust democratic system. During the battles for racial equality (before and after the Reconstruction Amendments) and gender equality (before and after the Nineteenth Amendment), advocates explicitly linked demands for voting and jury service as symbols of political equality. Americans fought, protested, and won the right to serve as jurors because it symbolized a constitutional status. The jury became a democratic, participatory symbol in our constitutional system, and the juror became a constitutional actor with constitutional responsibilities. This identity has been lost for many modern jurors who have become disconnected from their constitutional status.
Today, from summons to verdict, modern jurors are unaware of this constitutional connection. Worse, the combination of well-meaning jury streamlining programs (“one-day one-trial” systems), limiting jury instructions, and a historic shift in the role of juries has created essentially a “task-oriented” juror. Jurors show up, “find the facts,” and then go home to their normal lives. Jurors do not prepare for it. Jurors do not consider the role or identity outside of the task presented at that particular time and place.
This article examines how we ended up inverting the role of the jury in society. Particularly, it addresses the loss of constitutional identity and how jurors no longer view themselves as constitutional actors. It argues that this loss of constitutional identity has come at a cost to the jury’s reputation, its power in the constitutional structure, its efficiency in processing cases, and its role as an educative institution. This loss has contributed to a growing apathy to jury service, in particular, and the jury, in general. It then looks to reclaim the civic and constitutional identity valued by the Framers and those who fought for political equality during other constitutional moments in history. It seeks to broadly reframe the debate to rebuild the image of the juror in America. To fulfill this project of juror renewal, this article proposes a new way of viewing jury service – not simply as a task to be completed, but as an ongoing constitutional identity – a status – like being a voter or elected official. It suggests embracing the “potentiality of jury service” – a shift in perception that focuses on the juror beyond just the moments in the courthouse. The potentiality of jury service confronts this limited conception of being a juror. It broadens the focus along a continuum of civic life. It also recognizes that this potential status requires some action on our part – primarily education and reflection – to prepare for this constitutional responsibility. In developing this constitutional awareness about the jury, citizens will be able to reclaim a sense of constitutional identity that will strengthen the reputation, efficiency, and institution of the jury.