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Making Juries Accountable

Author(s): John D. Jackson


Source: The American Journal of Comparative Law, Vol. 50, No. 3 (Summer, 2002), pp. 477-
530
Published by: Oxford University Press
Stable URL: http://www.jstor.org/stable/841060
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JOHN D. JACKSON

Making Juries Accountable

The absence of reasons for its decision is surely a char


teristic which is bound to last so long as the jury system
- once the inscrutability principle has gone, the time h
come to set up another kind of tribunal.
W. R. Cornish, The Jury (1968), 258

I recognize that although I want to retain our [jury] s


tem and would not wish it to be damaged in any way, th
can result in disadvantages - not only for the public but
for those who come before juries ... Just as judges ca
fallible, so can juries, and without a reasoned decision it
often difficult to know if the jury has made a mistake or n
Lord Woolf, Lord Chief Justice of England, The Tim
January 30, 2001

I. INTRODUCTION

The common law jury has survived through the years by bein
able to adapt to the particular legal and political cultures in whic
has existed and as a result there are many differences between t
juries of common law systems.l But one feature that has rema
constant amid the many variations that have taken place through
the common law world is the jury's relative lack of accountabilit
the legal system, the public and the parties in the case. While ju
critics have viewed this lack of accountability as a further indica
of what they see as the irrationality of a system which permits v
dicts to be reached by lay persons who lack the benefit of any for

JOHN D. JACKSON is Professor of Public Law, Queen's University Belfast, Visiting


fessor of Law, Hastings College of the Law, University of California, fall seme
2000. Previous versions of this paper were presented at Faculty seminars at Hast
College of the Law, Mississippi College of Law, Michigan Law School, the Facult
Law, Aberdeen University and at the 2001 International Conference on Law and
ety in Budapest. I am especially grateful to the following for their assistance,
ments and suggestions: Craig Callen, James Chalmers, Phoebe Ellsworth, Rich
Friedman, Thomas Green, Steve Landsman, Rick Lempert, Roger Park, Mike
Redmayne, Steve Thaman and Gordon Van Kessell. None of the foregoing should be
identified in any way with any errors or with any views expressed. Special thanks are
owed to my research assistant at Hastings College of the Law, Joshua C. Kurtz.
1. See Neil Vidmar (ed.), World Jury Systems (2000).

477

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478 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

training,2 it has traditionally been viewed as a stre


well within what Damaska has described as the pre
dinate structure of the common law system.3 Accor
nate ideal, structures of authority are defined by
professional decision makers, organized into a sing
ity which makes decisions by applying undifferen
standards. This structure is contrasted with a hierarchical ideal
which is characterized by a professional corps of officials or
into a hierarchy which makes decisions according to technica
sions. Decisions taken within the coordinate ideal are highl
sonal to the decision makers who are chosen on a temporary
that they do not become imbued with a distinct sense of ident
rate from the community. They are chosen from the commun
are often said to represent the community, although this do
mean that they necessarily represent a cross-section of all di
types of persons within that community.4 They are of the com
but not necessarily any more accountable to the community th
are to a hierarchical bureaucratic authority.
Although these ideal types of authority are not meant to c
the precise structures of authority in modern western legal
and there has been a trend in favor of professionalization an
tralization in all modern judicial organizations, Damaska has
claimed that there has been greater resistance towards these devel-
opments within common law systems which have historically been
much more firmly attached to the values and attitudes of the coordi-
nate ideal.5 The independent and unaccountable common law jury
may be seen as one enduring feature of this ideal. Although the civil
jury has declined in many common law systems,6 the criminal jury
continues in many systems to be an important symbol of the impor-

2. For discussion of the irrational roots of the jury where jury trials became a
continuation of trial by ordeal, see Robert Bartlett, Trial by Fire and Water: The Me-
dieval Judicial Ordeal 139 (1986).
3. Damaska, "Structures of Authority and Comparative Criminal Procedure," 8
Yale L.J. 480 (1975), The Faces of Justice and State Authority: A Comparative Ap
proach to the Legal Process (1986)(hereafter referred to as "The Faces of Justice
Chap. 1.
4. Chesterman, "Criminal Trial Juries in Australia: From Penal Colonies to a
Federal Democracy," in Vidmar, supra n. 1, at 136. Even if it were possible for a
tribunal to represent a sample of the community in any one case, in terms of broad
categories of race, gender, age and social status, individual decision makers in carry-
ing out their functions do not in the coordinate ideal "represent" any particular sec-
tion of society, although it has been argued that more recently juries have been
characterized in this vein. See Jeffrey Abramson, We, The Jury: The Jury System and
the Ideal of Democracy (2000), Chap. 3. In the coordinate ideal it is preferable to
speak in terms of the tribunal being reflective rather than representative of the com-
munity. For the distinction between representativeness and reflectiveness, see Re-
view of the Criminal Justice System in Northern Ireland 130 (2000).
5. The Faces of Justice, supra n. 3, at 18.
6. With the exception of the United States and parts of Canada, the jury has
been largely abandoned in civil cases, see Vidmar, supra n. 1, at 3.

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479
2002] MAKING JURIES ACCOUNTABLE

tance of community norms and of the suspicion with which ce


ized state power is regarded.7 For juries are not only able to bri
norms and values into their decision making, they also enjoy a c
tutional independence from the state which enables them to n
particular legal directions given to them.
But there are increasing signs that this lack of accountabilit
the part of juries is coming under strain as the implementatio
community norms becomes more problematic in less homogeneo
cieties and as state power itself becomes more diffuse and subj
control. The signs of this strain can be seen most evidently in
concern that there has been in a number of jurisdictions over th
ity of juries to return impartial verdicts. Much of the concern
focused on what Vidmar has called the problem of "generic" or
eral" prejudice which he defines as "the transferring of attitu
beliefs about the case or its participants as a result of the juror
existing beliefs, or stereotyping of the defendant, the victim
crime itself, such that the case is not decided impartially."8 In
United States, for example, the famous 0. J. Simpson trial, foll
on from a number of earlier trials where the racial mix of th
caused concern,9 has prompted a soul-searching debate
whether jurors are following the passions and politics of race
than the discipline of the evidence.10 In other countries wher
are diverse ethnic, religious and racial populations, there ar
cerns about whether biases creep into trials and affect minoriti
fairly. Countries which have indigenous minorities su
aboriginal peoples in Australia and Canada and the Maori i
Zealand face particular problems." Additionally, concerns have

7. Vidmar reports that the criminal jury appears "alive and mostly well
tralia, Canada, England and Wales, Northern Ireland, the Republic of Irelan
Zealand, Scotland, the United States and at least 46 other countries and dep
cies around the globe": supra n. 1, at 3. He admits, however, that qualificati
needed in respect of England and Ireland. See Lloyd-Bostock & Thomas, "The
uing Decline of the English Jury," in Vidmar, id. at 53 (England) and Jackson
& O'Malley, "The Jury System in Contemporary Ireland: In the Shadow of a
Past," in Vidmar, id. at 283 (Ireland).
8. Id. at 228.
9. These are listed by Abramson as including the Reginald Denny and Ro
King trials, the police brutality trials in Detroit and Miami, the Crown Heights
the Central Park jogger case, the Bensonhurst and Howard Beach trials and
Bernhard Goetz case: Abramson, supra n. 4, at 10.
10. Id., at xiv. Despite criticism of the Simpson verdict which was reached
predominantly African-American jury, individual jurors justified the verdict
ground that there were reasonable doubts about the evidence. It has been argue
there is no clear indication that the jury deliberately nullified the law and
garded its fact-finding task in this case: see Hastie & Pennington, "The O.J. Si
Stories: Behavioral Scientists' Reflections on The People of the State of Califor
Orienthal James Simpson," 67 U. Colo. L. Rev. 957, 976 (1996) and Alan M
shovitz, Reasonable Doubts and the O.J. Simpson Case (1997).
11. Vidmar, "The Canadian Criminal Jury: Searching for a Middle Ground
Vidmar, supra n. 1, at 211, 244-48 (discussing the problems of compatibility o

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480 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

raised in countries affected or recovering from period


to whether defendants from one community can b
trial when a jury is composed of persons from ano
The problem of partisanship can be greatly exa
body of jury research shows that evidence and ar
siderably more effect on the outcome of cases than
isting attitudes.13 Much of this work shows that
juries lies less with "bad" jurors refusing to follow
well-intentioned jurors who are unequal to the ch
standing and applying the law.14 Despite this bod
research, however, there would appear to be an in
to attribute problems in the jury system to the dis
ual jurors.15
Common law jurisdictions have developed different ways of deal-
ing with jury partisanship over the years. A number of jurisdictions
have resorted to strategies such as the use of special juries,16 chal-

trial with the culture and values of aboriginal peoples in Canada), Cameron, Potter &
Young, "The New Zealand Jury: Towards Reform," in Vidmar, supra n. 1, at 167, 193-
97, Chesterman, supra n. 4, at 136-37, 139 (drawing attention to the lack of Maori and
aboriginal representation on juries in New Zealand and Australia respectively).
12. In Northern Ireland, for example, courts have dispensed with jury trial in
criminal cases connected with the troubles for the past 30 years, largely because of
the fear that jurors could become easily intimidated by paramilitary organizations
and the danger of perverse verdicts by partisan jurors. See Jackson, Quinn &
O'Malley, supra n. 7, at 302-14. Political violence has reduced dramatically within
the last seven years as ceasefires have been announced by the protagonists and a
peace agreement has entered into force. See Agreement Reached in the Multi-party
Negotiations (1998). But these have not yet led to a full return to jury trial as fears of
intimidation and partisanship remain. See Northern Ireland Office, Diplock Review
Report (2000). Figures show considerable variation in conviction rates throughout the
jurisdiction. North Down in the predominantly "unionist" east of the jurisdiction is
reputed to have the highest conviction rate of any jury in the UK while Fermanagh
and Tyrone, counties in the much more "nationalist" west of the country, have the
lowest: Jackson, Quinn & O'Malley, supra n. 7, at 312.
13. See, for example, Valerie P. Hans & Neil Vidmar, Judging Juries (1986),
Saks, "What Do Jury Experiments Tell Us About How Juries (Should) Make Deci-
sions," 6 S. Cal. Interdisciplinary L. J. 1 (1997). Research evidence suggests that the
individual world-views of jurors are seldom so rigid as to preclude them from examin-
ing the facts and the law and reaching a consensus, although individual differences do
seem to affect their ability to reach consensus on ambiguous evidence. This research
confirms Kalven and Zeisel's "liberation hypothesis" put forward in their path-break-
ing research on the American jury: see Harry Kalven & Hans Zeisel, The American
Jury (1966). There is some evidence, however, to suggest that there is a relationship
between racial demography and jury behavior in particular regions such as New York
state: see Levine, "The Impact of Racial Demography on Jury Verdicts," in The System
in Black and White: Exploring the Connections between Race and Justice (Michael W.
Markowitz & Delores D. Jones-Brown eds., 2000).
14. Ellsworth & Reifman, "Juror Comprehension and Public Policy: Perceived
Problems and Proposed Solutions, 6 Psychology," Public Policy and Law 788 (2000).
15. Id.
16. Until 1870 aliens in England could ask for a special jury de medietate
consisting of half Englishmen and half members of the foreigners' commu
Marianne Constable, The Law of the Other (1994). In New Zealand it was po
Maori defendants to ask for all-Maori juries until 1962 and there have been

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2002] MAKING JURIES ACCOUNTABLE 481

lenges,17 venue change in the case of particularly s


judicial instruction and control over the admissibil
prejudicial information.18 The difficulty with all
that they cannot guarantee that a jury has not acte
the course of its deliberations and in recent years
focused on how to deal with bias once it has been unleashed. A num-
ber of jurisdictions have been considering whether to abolish the u
nimity rule in order to override the views of "rogue" jurors an
prevent hung juries.19 Energy also appears to be being directed to

ing arguments to revive the right to a Maori jury. See Cameron, Potter & Youn
supra n. 11, at 196-97. More often, however, special juries have been used as a m
of packing juries to ensure the punishment of offenders, as in Ireland where
Crown used special juries comprised of wealthy men in the county to try politica
agrarian offences. See Jackson, Quinn & O'Malley, supra n. 7, at 286.
17. Common law systems have traditionally permitted parties to challenge a
number of jurors without cause. This practice was abolished in England and Wa
under the Criminal Justice Act 1988, s. 118 and in Scotland under the Criminal J
tice (Scotland) Act 1995. There remains the option of challenging for cause in th
jurisdictions but parties are not allowed to question jurors in these countries to es
lish cause. In Canada questioning of prospective jurors is generally limited to ask
jurors whether their ability to judge the evidence would be affected by certain facts
the case. See Vidmar, supra n. 1, at 234-35. In the United States the degree to wh
attorneys may elicit information about potential jurors varies according to juris
tion and to protocols that individual judges enforce. See King, "The American Cri
nal Jury," in Vidmar, supra n. 1, at 113. Challenging can itself be used for part
reasons and race and gender-based challenges have been held to be unconstitution
in the United States under the Equal Protection Clause of the Fourteenth Amen
ment: Batson v. Kentucky, 476 U.S. 79 (1986), J.E.B. v. Alabama ex rel. T.B., 114
Ct. 1419 (1994). In England judges themselves have tried to "engineer" the racia
composition of juries to match the ethnic background of the accused but the Cour
Appeal ultimately held that race should not be taken into account in selecting jur
and that the trial judge had no power to interfere with the random selection of juro
see R. v. Ford [1989] 3 All ER 445.
18. The effect of judicial instructions to juries that they have a duty to be fair and
impartial is uncertain, despite judicial pronouncements displaying confidence in their
salutary effect: see, for example R. v. Corbett [1988] 1 S.C.R. 670, 695 (Can.). Much
faith has traditionally been placed on controlling the input of information that is
given. However, prejudicial material still manages to seep through to the jury. Re-
search evidence suggests that limiting instructions on the use to be made of characte
evidence seem to be ineffective. See most recently Lloyd-Bostock, "The Effect of Hear-
ing About the Defendant's Previous Record: A Simulation Study," Crim. L. Rev. 734
(2000).
19. Many common law jurisdictions retain the unanimity verdict rule for criminal
cases. However, majority verdicts were introduced in England in 1967, in Northern
Ireland in 1971 and in the Republic of Ireland in 1984. The frequency of hung juries
has prompted a review of the unanimity rule in a number of jurisdictions. The Report
of the California Ribbon Commission on Jury System Improvements recommended by
a vote of 15-7 that judges should accept a non-unanimous verdict of 11-1 in non-capi-
tal and life imprisonment cases after a jury had deliberated for at least 6 hours. See
Blue Ribbon Commission on Jury System Improvement, Final Report (1996), Recom-
mendation 4.18. The New Zealand Law Commission has recommended that majority
verdicts should be accepted in all cases including murder after the jury has deliber-
ated for four hours. See New Zealand Law Commission, Juries in Criminal Trials
(2001), Report No. 69, at para. 441. Five major Australian jurisdictions permit major-
ity verdicts and there have been periodic calls for the introduction of majority verdicts
in those jurisdictions where criminal jury verdicts must be unanimous. Chesterman,
supra n. 4, at 154. But the Australian High Court has ruled that the Constitution

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482 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

wards holding jurors more accountable for the way


for the decisions they make. The power that juries
had to nullify laws for reasons of conscience has b
questioned in the United States as complaints have
wake of the Simpson trial that minority jurors are r
minority defendants.20 In consequence certain ju
taking steps to eliminate those who confess sympa
tion but are also taking steps to investigate compla
tion made during trials.21 Across the Atlantic a de
the human rights jurisprudence of European Court
has begun in the United Kingdom on whether ju
quired to give reasons for decisions and a special cr
view has recommended that juries should be req
more structured decisions.22 Elsewhere in Europ
system appears to be enjoying something of a revi
law countries,23 the systems that are emerging requ
special verdicts and in the case of Spain full reason
This Article will consider the various ways in wh
be made more accountable. Throughout their deli
remain accountable or answerable to each other and
that this process of jury deliberation in itself encou
aside their individual biases.25 But the question tha
is whether this accountability goes far enough. Par

forbids majority verdicts in the trial of offences against the


wealth. See Cheatle v. R. (1993) 177 C.L.R. 541 (Aust.).
20. See Abramson, supra n. 4, at xvi - xx.
21. Id. at xix- xx.
22. Review of the Criminal Courts of England and Wales 537-38 (2001). T
view was established under Lord Justice Auld in December 1999 and reported
tober 2001. A number of decisions of the European Court of Human Rights
referred to the desirability of tribunals of fact giving reasons for decisions.
example, Murray v. United Kingdom (1996) 22 E.H.R.R. 29, discussed infra
and accompanying text. The debate has taken on an urgency in the United K
since the European Convention on Human Rights was incorporated into Unite
dom law in October 2000 under the Human Rights Act 1998. The Governmen
paper which preceded this legislation explained that it was intended to enabl
in the United Kingdom to enforce their Convention rights directly in the
courts without having to take cases to the European Court of Human Rights i
bourg: see Rights Brought Home 1 (1997).
23. See Thaman, "Europe's New Jury Systems: The Cases of Spain and Ru
in Vidmar, supra n. 1, at 319.
24. Spain and Russia have rejected the Anglo-American general verdict of "
or "not guilty" in favor of requiring juries to answer a list of questions or prop
In addition the Spanish jury is required to give a "succinct rationale" for its v
indicating the evidence upon which the verdict was based and the reasons for
a particular proposition proved. See Thaman, id. at 338, 344-45. This requir
was deemed necessary to comply with the presumption of innocence guarant
Art. 24(2) of the Spanish Constitution and Art. 6(2) of the European Convent
Human Rights: Thaman, id. at 345, n. 115.
25. "The whole point of having jurors deliberate face-to-face is to change p
preconceptions about a case through conversation with others": Abramson, sup
at 205.

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2002] MAKING JURIES ACCOUNTABLE 483

ines the importance that has been given to account


decision making and distinguishes between what w
and "soft" accountability. Part III distinguishes three respects in
which juries have traditionally been unaccountable. They have been
cognitively unaccountable to the parties during the trial, they have
been unaccountable in the manner in which they have reached their
decisions in the deliberation room and they have been unaccountable
for the substance of their decision which is generally articulated in
only the barest of forms. This Part then examines the pressures
which are requiring juries to become more accountable in respect of
each of these types. Part IV considers the degree to which juries
should be made accountable in these respects. It will be argued that
while there are sound reasons for requiring that juries abide by the
processes of decision making they have sworn to adhere to and for
encouraging greater transparency into these processes, if the com-
mon law jury is to remain true to the coordinate ideal, juries should
not be required to account fully for the outcome of these processes.

II. ACCOUNTABILITY

Accountability may be defined as the duty of a public decisi


maker to explain, legitimate and justify a decision and to ma
amends where a decision causes injustice and harm.26 It has been
suggested that a distinction can be made between "hard political ac-
countability" whereby ultimately decision makers can be removed
from their position where their actions or decisions become unaccept-
able and "softer" measures of accountability which build on the re-
quirement to explain decisions by demanding that decision making is
procedurally transparent and that decision makers themselves are
representative or reflective of the community they serve.27 Another
way of viewing hard and soft measures of accountability is to see the
distinction in terms of the control exercised over the public decision
maker which can range from encouraging transparency of decision
making such as requiring decisions to be explained, to reversing the
decisions taken, to ultimately removing decision makers from their
position. This control can operate over both the substance of the deci-
sions taken and the manner in which they were taken. Softer forms
of accountability put less emphasis on direct control and more em-
phasis on the degree to which procedures are put in place to en-
courage transparency, openness and representativeness.

26. Dhavan, "Judges and Accountability," in Judges and the Judicial Power (R.
Dhavan et al eds., 1985), at 167. The term is related to terms such as responsibility,
transparency, answerability and responsiveness. See Dawn Oliver, Government in the
United Kingdom - The Search for Accountability, Effectiveness and Citizenship 22
(1991).
27. Kate Malleson, The New Judiciary 38 (1999).

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484 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

Another question is to whom accountability is o


chical models of authority decision makers are acc
higher up the hierarchy. With the emergence of
however, emphasis was placed on making decision
countable to the public. This meant that political figures became
more accountable to the public through elections and in the twenti-
eth century there were increasing demands for public officials to jus-
tify their actions and decisions to the public throughout periods of
political office. This demand for greater public accountability has
come from different ends of the political spectrum. For the Left
which has put faith on the state to deliver equality and justice, it has
been increasingly seen as necessary to open up state institutions to
greater scrutiny so that decision makers cannot hide behind a mask
of bureaucratic secrecy in determining policy.28 For the Right ac-
countability has been seen as less necessary at the level of policy
making than at the point of delivery of services.29 The public as the
consumers of public services can legitimately claim to have a right to
hold those in public service to account, the more so as the Right's
agenda has been to pare down public services and to allocate re-
sources via the market. More centrist politics has appealed to solu-
tions which are neither entirely state nor market based, with
promises to reform out-dated practices in order to pursue a citizen-
ship agenda whereby the state and civil society act in partnership,
each facilitating but also controlling the other.30
These demands have not escaped the justice system. In the hier-
archical model of authority we saw that it was important for decision
makers in the legal arena to account for their decisions to those
higher up the legal hierarchy. Recent demands for accountability,
however, require the legal system to be more accountable to the pub-
lic. Consumer-led demands have called for an end to monopolies
within the legal profession so that clients as the ultimate consumers
may be given the widest possible choice over who should provide ser-
vices.31 There have also been calls for more effective case manage-
ment by the judiciary as judges have come to be seen as professional

28. See Will Hutton, The State We're In (1996)(arguing that twentieth century
socialism failed in Britain because of its failure to reform the structure and culture of
its state institutions.)
29. Robert Baldwin, Rules and Government 29-31 (1995), Dawn Oliver & Gavin
Drewry, Public Service Reforms: Issues of Accountability and Public Law (1996).
30. Anthony Giddens, The Third Way: The Renewal of Social Democracy (1998).
31. Gerard Hanlon, Lawyers, the State and the Market - Professionalism Revis-
ited (1999). For discussion of how the Bar's monopoly on advocacy services in the
United Kingdom has come to be challenged, see Hanlon & Jackson, "Last Orders at
the Bar? Competition, Choice and Justice for All - The Impact of Solicitor-Advocacy,"
19 Oxford J. Leg. Studs. 555 (1999).

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2002] MAKING JURIES ACCOUNTABLE 485

managers accountable for producing results.32 H


been seen as a crucial mechanism for delivering the citizenship
agenda, requiring the courts to act as the arbiter of competing claims
but also to explain the basis on which their decisions are reached.33
Consequently, it is seen as crucial that anyone adversely affected by
a decision has the right to be given a statement of the reasons of the
tribunal or agency which has made it.34 As the decision making of
courts has expanded to include all manner of policy making beyond
their traditional rather technical role of applying the law, it has also
been seen as necessary for judges to reflect contemporary social atti-
tudes which means that they should be drawn from a much wider
range of experience, social class, gender and race than has hitherto
been the case in most common law countries.35

These demands for accountability have been particularly eviden


in the criminal justice system. Some of them have required greate
hierarchical control over decision makers so as to minimize the wa
ward exercise of discretion. The recent debate in England and Wal
over whether the prosecution should be able to appeal against judi-
cial rulings directing acquittals and aborting criminal proceedings
an example of a concern that has arisen out of judges being "unac-
countable" to the Court of Appeal as to a crucial aspect of their re
sponsibilities.36 In other ways, however, the demands have also
required the criminal justice system to be more accountable to the
public. A recent criminal justice review group established under th
Northern Ireland peace agreement found that the themes of accoun
ability, transparency, openness and citizen involvement resona
throughout the criminal justice systems of many western crimina
justice systems including the United States, Canada, Germany,

32. The general trend towards judges becoming more managerial over the last
years can be attributed to a number of factors. See Resnick, "Managerial Judges,"
Harv. L. Rev. 376 (1983).
33. The incoming Labor administration in the United Kingdom in 1997 was
elected on a platform of modernization and its white paper on the justice system de-
clared that the government had been elected on a radical agenda to modernize the
country, exposing all its institutions to scrutiny. See Lord Chancellor's Department,
Modernizing Justice (1998). In his foreword to the white paper the Lord Chancellor,
Lord Irvine, stated that those institutions which were out of date, inefficient or unac-
countable to the people would not survive unchanged. See id. at 2.
34. The courts have embraced this demand for reasons to be given for decisions.
"That today's professional judge owes a general duty to give reasons is clear," per
Henry L.J. in Flannery v. Halifax Estate Agencies Ltd. [2000] 1 All E.R. 373, 377.
35. See Malleson, supra n. 27, at Chap. 1. The need for common law judges to
apply human rights norms has added to these demands. See Jackson, "The Impact of
Human Rights on Judicial Decision Making in Criminal Cases," in The Judicial Role
in Criminal Proceedings (Sean Doran & John Jackson eds., 2000), at 109.
36. The complaint in a lecture by the Attorney-General in November 1999 led to
the issue being referred to the Law Commission. See Law Commission, Prosecution
Appeals Against Judges'Rulings (2000) Consultation Paper No. 158 and Double Jeop-
ardy and Prosecution Appeals (2001) Cm. 5048.

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486 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

Netherlands, Belgium, South Africa and New Zealan


found that prosecutors were more prepared to giv
sons for decisions, criminal justice agencies of all ki
to publish annual reports and agencies were expect
open appointment procedures. These developments
the judiciary. Judicial appointments commission
lished in a number of countries and judges at all lev
justice system are being required to give reasons
decisions.38

Accountability may be said to serve a number of instrumental


and non-instrumental purposes in the justice system. First, within a
hierarchical structure of authority accountability is necessary to en-
sure a level of uniformity of decision making.39 Secondly, it can en
hance the quality of decision making. If decision makers have to
explain their decisions to the community or to some reviewing body,
then it is more likely that their decisions can be justified.40 Account-
ability does not guarantee good quality decision making, of course,
and may even detract from it, as where the body to whom the decision
maker accounts tries to interfere in a partisan way with the decision.
Accordingly, accountability is often contrasted with independenc
with much debate as to where the balance between these should be
struck.41 Thirdly, accountability can help to legitimate the position
of the decision makers, as increasingly in liberal democracies decisio
making must be transparent if there is to be any public confidence

37. Supra n. 4.
38. In the United Kingdom this demand has been partly motivated by the incor-
poration of the European Convention on Human Rights into United Kingdom. With
the approach of the Human Rights Act 1998 the Lord Chancellor's Department ad-
vised lay and professional magistrates that in criminal cases they must in future give
reasons automatically and since October 2000 this has become the general practice.
Spencer, "Inscrutable Verdicts, the Duty to Give Reasons and Article 6 of the Euro-
pean Convention on Human Rights," (2001) Archbold News, Issue 1, at 5-6. The En-
glish Law Commission has considered that the Human Rights Act also requires
reasons to be given for bail decisions, see Law Commission, Bail and the Human
Rights Act 1998 (1999), Consultation Paper No. 157. It has also been considered that
judges need to give reasons for extending or refusing to extend custody time limits:
see R. v. Crown Court at Manchester ex p. McDonald [1999] 1 All E.R. 805, 813.
39. The Faces of Justice, supra n. 3, at 19-20.
40. There is some social-psychological evidence to show that the need to justify
decisions can improve the quality of information processing. See Tetlock, "Accounta-
bility: A Social Check on the Fundamental Attribution Error," 48 Social Psychology
Quarterly 227-36 (1985).
41. This tension is reflected in the debate over the extent to which key decision
makers such as prosecutors and judges should be accountable for the decisions they
take. Until 30 years ago the need to ensure that decisions were taken independent of
the executive tended to mean that there were considerable limitations put on both
hard and soft accountability. But within the last 30 years a general view that those
who exercise power should be more accountable together with expanding role of the
judiciary has led to increasing pressure on the judiciary for the introduction of greater
accountability. Malleson, supra n. 27, at 42-43.

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2002] MAKING JURIES ACCOUNTABLE 487

it.42 Fourthly, accountability can enhance respect f


affected by the decisions made as it guarantees the
over these decisions.

Both hard and soft forms of accountability may be said to se


these purposes. The sanction of removal or reversal ensures that
cisions reach a minimum threshold of uniformity, quality, accepta
ity and fairness. At the same time it is increasingly recognized t
softer forms of accountability may help to raise decision making
above this minimum threshold. Thus a duty to give reasons for d
sions not only helps those higher up the legal hierarchy to scrutin
more carefully the basis for the decisions reached, it also leaves t
parties in no doubt why they won or lost and enables them to mou
challenge to these decisions if necessary.43 At the same time the d
to give reasons concentrates the mind with the result that a reaso
decision is more likely to be soundly based on the evidence than
which is not reasoned.44 Similarly, a tribunal which is broadly dra
from a wide spectrum of society is more likely to ensure that deci
makers have some experience of the lives of the individuals who c
before the court with the result that decisions may be more soun
based both on the evidence and in policy and the individuals con-
cerned may be more satisfied that their interests are being taken into
account.45

As all manner of decision makers in the criminal justice system


are being required to be more transparent in their decision making,
in order that decisions may be more uniform, more accurate, fairer
and more acceptable, the question that obviously arises is why juries
should not be treated in a similar fashion. Juries, of course, are
drawn from a wide spectrum of society and to this extent they may be
said to be socially accountable to the community from which they are
drawn. But as we shall see their modus operandi is entirely secret
and at the same time there has traditionally been little control exer-
cised over their decisions. Before we consider whether this state of
affairs can continue to be justified we need to examine in more d
the respects in which juries may be said to be unaccountable, the

42. Craig, "The Common Law, Reasons and Administrative Justice," 53 Camb
L.J. 282, 283 (1994).
43. "Without reasons the losing party will not know whether the court misdi-
rected itself, and thus whether he may have an available appeal on the substance of
the case," per Henry L.J. in Flannery v. Halifax Estate Agencies [2000] 1 All E.R. 373,
at 377-378.
44. Id. at 378.
45. There is some evidence to suggest that heterogeneous juries solve
better and are more evidence-driven than homogeneous juries: Lempert, "
Non-Discernible Differences: empirical research and the jury size cases,"
Rev. 643 (1975); Arce, "Evidence Evaluation in Jury Decision Making," in
of Psychology in Legal Contexts (Ray Bull & David Carson eds., 1995), at 5

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488 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

sons for this lack of accountability and the pressu


for greater accountability.

III. THE LACK OF JURY ACCOUNTABILITY

There are a number of respects in which juries may be said


unaccountable in both a hard and a soft sense. First of all, the
sive role in which jurors conduct themselves during the trial m
that the parties are unable to conduct a dialogue with jurors wit
result that it is impossible for them to understand and examin
thought processes of jurors as they are assimilating the evid
This lack of cognitive accountability during the trial carries o
the deliberation room where jury deliberations are secret. J
may direct questions to the judge or try to communicate wi
judge but, failing this, there is no means of knowing what a ju
thinking until it reaches its decision. Secondly, the secrecy of t
liberation room not only prevents disclosure of what jurors are
ing, it also prevents disclosure of how their decision is arri
Jurors usually swear an oath to give a true verdict according t
evidence but the secrecy of the deliberation room means that t
little means of knowing whether jurors actually do go about de
the case in accordance with the evidence. We shall call this the lack of
due process accountability. Judges have powers to discharge jurors
when they are behaving improperly and in this sense jurors may be
said to be accountable in a "hard" sense but the secrecy of their delib-
eration means that judges may never hear about a jury's behavior
and even when they do jurisdictions differ according to the degree to
which judges may investigate allegations of impropriety.46 Thirdly,
the sphinx-like verdict that emerges from jury deliberation which in
criminal cases is usually stated in no more than two words (guilty or
not guilty) effects a legal change in the status of the defendant (from
a person legally presumed innocent to a person found guilty) but the
lack of any mention of the facts found makes it impossible to know
what has grounded the decision. Again, jurisdictions differ as to the
extent to which jurors may disclose any information after the trial as
to what transpired in the jury room.47 It is possible for the defense to
appeal against guilty verdicts and verdicts can be reversed when they
are unsafe but the courts have traditionally shown great deference
towards jury verdicts and the lack of any reasons given for decisions
makes any appeal court poorly equipped to review the basis for the
verdict.48 Jury acquittals are generally non-reviewable.49 In this

46. Infra nn. 83-86 and accompanying text.


47. Infra nn. 81-82 and accompanying text.
48. By way of contrast it is much easier to mount an appeal against judicial er-
rors. See William Pizzi, Trials Without Truth 145 (1999). For the history of the Court
of Appeal in England and Wales which has the power to quash guilty verdicts, see

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2002] MAKING JURIES ACCOUNTABLE 489

sense it may be said that juries do not have to acco


sense for the decisions they have arrived at and we
lack of public accountability.
Of course, in representing what may be regarde
coordinate model of authority juries are in a differe
many other public decision makers. Decision maker
nate model are simply not expected to account for
the manner of those in a hierarchical model of auth
are not required to make decisions according to tec
laid down from on high and to "march to the beat o
They are usually summoned to serve for very limite
with the result that there is not the same need to e
in decision making as where a tribunal is sitting co
case after another, although of course a decision in
major impact on the parties involved. As coordinat
usually come from the community, they can be said
cially accountable to the community and accountabil
sense means there is less need for "hard" accountab
At the same time, the difficulty in ensuring that the j
resentative or reflective of the community in today
racies,51 combined with the excessive secrecy in w
operate in many jurisdictions, means that the jury
wholly accountable in any "soft" sense to the comm
haps not surprising therefore that pressures have b
juries to be made more accountable in each of the r
above. We shall examine each type of accountability

1. Cognitive accountability
In order to examine the pressures towards maki
cognitively accountable, it is necessary to consider h
common law juries have over the facts of cases. Du

Rosemary Pattenden, English Criminal Appeals 1844 - 1994 (1


& David Schiff, Understanding Miscarriages of Justice (2000),
49. One exception is to be found in England and Wales and
under which an acquittal may be set aside where a person has
offence of interference with, or intimidation of, witnesses or ju
and the acquittal appears to have resulted from that offense: C
Investigations Act 1996, ss. 54-57. For recent proposals to ext
and to permit acquittals to be re-opened where there is new ev
tain homicide offences, see Law Commission, Double Jeopardy
peals, supra n. 36, at Part V.
50. The Faces of Justice, supra n. 3, at 20.
51. It has been argued that the selection methods adopted in certain United
States jurisdictions which permit lengthy voir dire examinations and the exercise of
peremptory challenges can create positively unrepresentative panels and unbalanced
juries: see Stephen Adler, The Jury: Trial and Error in the American Courtroom 113-
15, 221-24 (1994). For concerns about the unrepresentative nature of juries in En-
gland and Wales, see Review of the Criminal Courts of England and Wales, supra n.
22. at 140-55.

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490 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

the history of the jury this freedom has varied co


have been two distinct phases of cognitive developm
called irrational proofs such as trial by ordeal were
twelfth century, alternative truth determinations h
replace them. The Romano-canon inquisition pro
by ordeal in the European continent and jury trial
gland. A dual system of presentment took place wh
ing jury which had hitherto considered who should
now presented the accused before new convicting j
new juries were self-informing in the sense that t
to know the facts because they lived in the local n
cent research has modified the view that the medi
tirely self-informing as it now appears that jurors
the scene of many crimes to have first hand knowle
seems therefore that these early trial jurors bot
weighed evidence. Whatever the sources relied on b
ries, their role changed from one of active fact fi
passive role familiar today whereby jurors evaluate
basis of information and testimony introduced in c
cusers and government appointed justices of the pe
process took place throughout the sixteenth century
still spoke with witnesses in the early sixteenth cen
dle of the century witnesses appeared to be testify
greater regularity. A turning point seemed to take place in 1563
when legislation compelled witnesses to appear and perjury was
made a crime.54
It was some time, however, before writers acknowledged this
shift of emphasis. So long as jurors acted on their own knowledge
their verdicts could continue to be given a kind of oracular authori
entitled to as much certainty as the trial by ordeal which had broug
to bear the knowledge and justice of God. When they became evalu
ators of evidence presented to them in court problems arose as to ho
verdicts could be given the same authority, as evaluation of eviden
could not command the same certainty as personal knowledge of t
evidence. For some time therefore writers and judges latched on t
the fiction that juries could continue to be self-informing about t
facts. In the famous Bushel's case55 in 1671 which gave juries their
freedom to bring in a verdict of their choice, this freedom was n
justified on the basis of any constitutional right which juries had

52. For classic accounts of the early history of the jury, see William Forsyth, H
tory of Trial by Jury (1852), Frederick Pollock & F. William Maitland, The History
English Law Before the Time of Edward I (1898), W. Holdsworth, A History of Eng
Law (1922).
53. Barbara Shapiro, Beyond Reasonable Doubt and Probable Cause (1991).
54. Id. at 6.
55. (1671) 124 E.R. 1006.

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2002] MAKING JURIES ACCOUNTABLE 491

disregard the law on which they were directed or ind


rigors of the law by mercy. Instead Vaughan C.J. wh
ion of the Court of Common Pleas justified his deci
could not fine or jail juries for contempt on the gr
could not know the facts on which juries decided. J
were supposed to have sufficient knowledge to try a
evidence on either side was produced in court.56
The reality was, however, that as juries became m
on the evidence produced before them, their cogniti
diminished and judges who sat in court with juries w
cise an increasingly dominant role over the jury. From medieval
times therefore we see judges playing a leading part in examining
witnesses including defendants and in commenting on the evidence
in their charge to the jury.57 When judges disagreed with the ver-
dict, they often confronted the jury head-on.58 A number of tactics
were resorted to.59 Judges would hold juries without refreshment or
sleep until they got the verdict they wanted. Alternatively, they
would examine each juror individually. During the infamous days of
the Star Chamber in the mid-sixteenth century they would even bind
juries over to the Chamber. Sometimes charges would be based on
perjury or extortion but sometimes it seemed that juries were held to
account simply for acting "contrary to the evidence."60 In total con-
trast to the period of the self-informing jury when juries had im-
mense freedom to bring in a verdict of their choice, this period marks
the high water mark of extreme cognitive accountability whereby ju-
rors on pain of punishment were required to defend their verdicts.
After the landmark decision in Bushel's case judges' powers to
coerce juries after the verdict were reduced but they continued to ex-
ercise enormous influence on juries before the verdict. As Langbein
has shown in his study of criminal trials in the eighteenth century,61
judges exercised strong powers to comment and instruct on the evi-
dence, they could withdraw cases before they went to jurors to allow
time for gathering more and better evidence, juries might be made to
disclose their reasons for their verdicts and judges could send juries
back for further discussion if they thought the reasons were insuffi-
cient. In Bushel's case one of the reasons Vaughan CJ considered
that juries should not be coerced for their verdicts was the fact that
"man cannot see by another's eye, not hear by another's ear, no more
than a man can conclude or infer the thing to be resolved by another's

56. Id., at 1012.


57. Thomas Green, Verdict According to Conscience 138 (1985).
58. Id., at 140.
59. Id., at 140-42.
60. Id., at 141.
61. Langbein, "Criminal Trial Before the Lawyers," 45 U. Chic. L. Rev. 263, 284-
89 (1978).

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492 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

understanding or reasoning."62 But it seemed that ju


hesitation in expressing their views on the evidence.
this time also that judges were developing standards
ries to conform to in their evaluation of the evidence. The old cer-
tainty of the self-informing jury had to be replaced with a
certainty of proof and judges began instructing juries on the deg
proof required (to a moral certainty, or beyond a reasonable do
and also on the kinds of evidence to accept - the evidence of wit
and circumstantial evidence but not hearsay.63
If the seventeenth and eighteenth centuries were marked by
nitive dominance of juries by judges, the nineteenth and twent
centuries were more marked by cognitive dominance by lawy
Lawyers were beginning to represent their clients in court in t
eighteenth century but by 1800 it has been estimated that only 2
cent of English trials involved lawyers for the defense or prosec
and it was not until 1836 that felony defendants were able to h
full counsel.64 As lawyers became gradually more involved in tr
however, judicial proceedings became more formal. Judicial d
nance waned as lawyers came to have an influence on the jud
directions given to juries. In Ireland a practice developed wh
lawyers could "requisition" the judge on the way in which he h
rected the jury and judges were given an opportunity to correct
directions.65 The creation of the Court of Appeal in England in
also gave the defense the right to appeal against judicial direc
given to juries.66 In the United States most states prohibited ju
from commenting on the evidence in the 1800s and pattern ins
tions have now for the most part replaced the jury charges of
past.67 This judicial waning of influence over the jury did not,
ever, give juries any greater cognitive control over the evid
Lawyers were permitted to make arguments to juries and at th
hest of lawyers exclusionary rules were activated to prevent jur
hearing evidence.
So long as judges and lawyers exercise considerable input
the evidence admitted at trial and can put arguments on the evid
to them with considerable freedom, it may be argued that ther
little need to demand greater cognitive accountability ofjuries. B
is now recognized that whatever efforts are made to dominate
jury, it is false to view jurors as passive observers at the scene o

62. Supra n. 55, at 1012-13.


63. Shapiro, supra n. 53, at Chap. 1.
64. A.T.H. Smith, Lawyers, Legislators and Theorists: Developments in En
Criminal Jurisprudence 1800-1957, 43 (1998).
65. John Jackson & Sean Doran, Judge Without Jury: Diplock Trials in the
versary System 258-60 (1995).
66. Pattenden, supra n. 48.
67. King, supra n. 17, at 100.

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2002] MAKING JURIES ACCOUNTABLE 493

trial, or as it has been put, as relatively passive "record-kee


encode the events of the trial.68 Perception is no longer re
passive process of encoding external stimuli, with the res
rors do not soak up information like a sponge but play an
in making sense of it and interpreting it as it is heard. P
and Hastie have argued that juries frequently make d
utilizing schemas, narratives or stories in order to compr
events at the trial.69 As a result it may be argued that
revert to the old idea that jurors are indeed self-informing
sense that they bring particular knowledge about the wit
parties to the trial but in the sense that they bring their o
to the trial.
In recognition of this a number of jurisdictions are changing
their rules to permit juries to become more active. In the United
States, for example, a number of states are adopting or experi-
menting with reforms such as providing juror notebooks, expanding
the use of preliminary jury instructions, allowing jurors to ask ques-
tions, allowing jurors to discuss the evidence amongst themselves
during the trial, giving jurors copies of the judge's instructions and
reading the final instructions before closing arguments of counsel.70
Scholars have argued that this move towards greater jury activism is
likely to have effects on a number of rules of procedure and evi-
dence.71 It may also lead to greater pressure on jurors to become
more cognitively accountable by revealing what they are thinking
during the trial.
To some extent these reforms are already opening up the black
box of the jury. Greater questioning by jurors enables the trial par-

68. Reis Hastie, Steve Penrod & Nancy Pennington, Inside the Jury 18-19 (1993).
69. Pennington & Hastie, "A Cognitive Theory of Juror Decision Making: The
Story Model," 13 Cardozo L. Rev. 519 (1990).
70. A number of these reforms were pioneered by Judge Dann in Phoenix, Ari-
zona: see Dann, "'Learning lessons' and 'speaking rights'," 68 Ind. L. J. 1229 (1993).
The reforms are catalogued by the American Judicature Society. See Enhancing the
Jury System: Guidebook for Jury Reform (1999). For discussion of how these reforms
came to be taken seriously, see Ellsworth & Reifman, supra n. 14.
71. See, for example, Lempert, "Telling Tales in Court: Trial Procedure and the
Story Model," 13 Cardozo L. Rev. 519 (1991)(suggesting that the rules regarding the
mode and order of presentation of evidence may need to be re-interpreted to allow for
more orderly, chronological narrative-like testimony requiring witnesses to appear
several times as the narrative unfolds), Sanders, "Scientifically Complex Cases, Trial
by Jury and the Erosion of Adversarial Processes," 48 De Paul L. Rev. 355
(1999)(pointing out that a number of procedural rules have been changed to facilitate
jury fact-finding in complex scientific cases including the separation of punitive dam-
age issues from the rest of the trial, the bifurcation of causal issues from issues of
liability and damages and the greater resort to court-appointed experts), Landsman,
"The Rules of Evidence in the Age of the Resurrection of the Jury," (1999) Interna-
tional Commentary on Evidence at http://www.law.qub.ac.uk/ice (arguing that the
narrative story model poses challenges to assumptions which have underlain most of
the rules of evidence which prescribe limited uses of certain kinds of evidence such as
evidence of prior convictions and hearsay).

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494 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

ticipants to obtain greater insight into what is going


the jury. But this is a process that is filtered by t
thought may need to be given as to how a more fo
communication might be opened up during the tri
jurors and the parties.72 Note-taking by jurors also
Landsman has called a "road-map" of juror thoug
notes provide a tempting means for courts and law
jurors' minds.73 A further question is whether the
process itself might be opened up to greater scrutin
only reveal jury thought processes but would also e
proper methods used by juries to reach a verdict wh
issue of due process accountability.

2. Due Process Accountability

Jury deliberations have for long been so shrouded in secrecy that


it has been very difficult to know what procedures jurors have used to
arrive at their decision. This secrecy has been justified over the years
on a number of grounds.74 First of all, the principle of secrecy en-
ables truly independent verdicts to be reached which are uninhibited
by the threat of later exposure. If jurors knew that their deliberations
would later be made public, they would not engage so whole-heart-
edly and independently in the coordinate ideal which depends upon
the views of all jurors being tapped in a frank and uninhibited ex-
change between the jurors. Associated with this view is the belief,
secondly, that secrecy helps support the coordinate ideal of verdict
unanimity as jurors would be less willing to reach consensus if they
knew that their compromises would be later revealed to the public.75
Thirdly, it is argued that secrecy helps to ensure the finality of the
verdict and to maintain public confidence in the acceptance of ver-
dicts which would be undermined if the full story of what happened

72. Jackson & Doran, "Judge and Jury: Towards a New Division of Labor in Crim-
inal Trials," 60 Mod. L. Rev. 759 (1997).
73. Landsman, supra n. 71.
74. Tanner v. U.S. 483 U.S. 107 (1987)(arguing that full and frank discussion in
the jury room, jurors' willingness to return an unpopular verdict and the commu-
nity's trust in the system would all be undermined by a barrage of post verdict scru-
tiny of a juror's conduct); R. v. Bean [1991] Crim. L. Rev. 843 (the unwillingness of
courts to inquire into what goes on in the jury room preserves finality, protects jury-
men and prevents exposure to having to give reasons, and prevents jury trial being
discredited); New Zealand Law Commission, supra n. 19, at para. 443 (declaring that
the main reasons for maintaining jury secrecy are to promote free and frank discus-
sion among jurors; to prevent jurors from being exposed to pressure from, or on behalf
of, the defendant; to protect jurors' privacy; to preserve the finality of verdicts; and to
avoid any temptation for jurors to capitalize on disclosure).
75. For discussion of the thesis that confidential discussions aid consensual deci-
sion making, see D. J. Seidman, Private Negotiations and Consensus Decisions: Con
dential Voting on Interest Rates (2001), unpublished paper (copy with author).

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2002] MAKING JURIES ACCOUNTABLE 495

in the jury room became known.76 Fourthly, th


which support secrecy on the basis of the need to pr
pressure and harassment and to preserve their priv
is a civic duty but it is dependent on the good will of t
serve as jury members and this goodwill would e
were subject to further stress after the verdict of
publicly aired and dissected. Finally, it is sometime
sure of jury deliberations would undermine faith in
disclose incidents of incompetence or prejudice and
cism of the jury.77
These arguments adhere to the coordinate mo
outlined at the beginning of the article. The commu
of the jury must be given the freedom to deliberat
external pressure of partisan interests and once th
nounced it must be given as much authority as pos
nature of a community decision, particularly one w
unanimously after much argument, that the decisio
in a logical and closely argued manner with the res
be all too easy to expose logical flaws in the proces
ing if this were opened up to scrutiny. Such openn
mine the finality of the verdict and in due course
community process of decision making.
As a result most common law jurisdictions go to
ble lengths to protect the secrecy of the jury delibe
jurisdictions, for example, have rendered jurors'
jury room deliberations inadmissible in court proce
finds its origin in the case of Vaise v. Dalaval79 whe

76. "If one juryman might communicate with the public u


their verdict so might his colleagues also, and if all took this dan
ences of opinion might be made manifest which at the least coul
confidence that the public rightly has in the general propriety
per Lord Hewart C.J. in R. v. Armstrong (1922) 2 K.B. 555, at 5
said that without secrecy judges "would become Penelopes, fore
eling the webs they wove" (per Learned Hand in Jorgensen v.
160 F.2d 432 at 435 (2d Cir. 1947)).
77. See, e.g., Smith, "Is Ignorance Bliss? Could Jury Trial Survive Investiga-
tion?," 38 Med. Sci. L. 98 (1998).
78. For example, r. 606(b) of the Fed. R. Evid. bars testimony or statements by
jurors offered to prove virtually anything about deliberation - any matter occurring or
statement made, or the effect of anything on the mind or emotions of any juror, or the
mental processes of the juror whose statement of testimony is offered. For discussion
see C.B. Mueller & L.C. Kirkpatrick, Evidence (2nd ed., 1999), para. 6.10.
79. (1785) 1 T.R. 11. The effect of the rule has meant that courts have also been
powerless to inquire into allegations that a verdict was decided by lot: see Owen v.
Warburton (1805) 1 B. & P. 726, Straker v. Graham (1839) 4 M. & W. 721. More
recently the Court of Appeal has refused leave to hear an appeal based on an allega-
tion that a jury was going to acquit until the foreman read out a list of the accused's
previous convictions (R. v. Thompson (1962) 46 Cr. App. R. 72). See also R. v. Schol-
field [1993] Crim. L.R. 217, R. v. Miah, Akhbar [1997] 2 Cr. App. R. 12, R. v. Qureshi,
Ct. of App., No. 2000/06537/Y5, 23 July 2001.

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496 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

C.J. refused to hear evidence that the jury had d


the toss of a coin. He left open the possibility of a th
ing such a transaction through a window but a ju
concerning a conversation he had heard between jurors has since
been rejected by the English courts.80 Jurisdictions also go to vary-
ing lengths to restrict communications between jurors and other par-
ties about what happened in the jury room. Communications
between the jury and persons outside the jury are invariably forbid-
den during the trial and during deliberations and some jurisdictions
go so far as to prohibit anyone from obtaining particulars of any
statements made by jurors during the course of jury deliberations.81
Even jurisdictions which permit interviews with jurors after the trial
often take steps to protect jurors from harassment and to ensure that
jurors are made aware that they have an absolute right not to discuss
the deliberations or the verdict in the case with any person.82
Clearly, however, absolute devotion to the principle of secrecy
may cause injustice to the parties as it becomes difficult to uncover
when jurors decide to ignore their oath to try the case according to
the evidence and decide on other grounds instead. Judges have long
had powers to discharge juries and individual jurors on a number of
grounds including misconduct on the part of a juror or jury and where
there is a real danger of prejudice to the accused a jury must be dis-
charged.83 But the secrecy of jury deliberations makes it difficult to
uncover any impropriety in the jury room when it occurs and even
when allegations of impropriety are made there may be difficulties
under the secrecy rules in fully investigating them. A distinction is
generally made between facts, statements or events extrinsic to the
deliberation process that may have tainted a verdict which are ad-
missible and statements made, arguments advanced or votes cast in

80. R. v. Bean [1991] Crim. L. Rev. 843.


81. The Contempt of Court Act 1981, s. 8 makes it a contempt of court in the UK
to "obtain, disclose or solicit any particulars of statements made, opinions expressed
arguments advanced or votes cast by members of a jury in the course of their delibera
tions in any legal proceedings."
82. Recent amendments to s. 206 of the Californian Code of Civil Procedure pro
vide that attorneys who seek post-verdict information from jurors must identify them
selves and remind jurors of their absolute right not to discuss the deliberations or
verdict in the case with them.
83. For powers to discharge and excuse jurors and juries after they have retire
see Juries Act 1974, s. 16 (England and Wales), Crimes Act 1961, s. 374 (New Zea-
land), Canadian Criminal Code, s. 644, Fed. R. Crim. Proc., r. 23(b). The "real dan-
ger" test has been approved by the House of Lords in R. v. Spencer [1987] A.C. 128
and R. v. Gough [1993] A.C. 646 with the proviso made in Magill v. Porter and Weeks
[2001] U.K.H.L. 67 to ensure compatibility with the jurisprudence of the European
Court of Human Rights that the test is an objective one - whether the circumstances
would lead a fair-minded and informed observer to conclude that there was a real
danger of bias.

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2002] MAKING JURIES ACCOUNTABLE 497

the course of deliberations which are not admissibl


Committee Note to Rule 606(b) of the Federal Rules
example, distinguishes between the need to insulate
which a jury reached a verdict with the result that
be questioned about statements made during the co
deliberations, and testimony by jurors as to prej
information or influences brought to bear upon the
cess.85 The result is that jurors can testify about th
proper influences but not about what effect this h
deliberations. In a similar manner, the English Cou
held that judges have a duty to investigate if there
suspicion that any juror has been approached or pre
wise tampered with.86 But such questioning should
possibility that the jury's independence has been com
than to their deliberations on the issues in the case.87 This bar on
judges investigating jury deliberations is reinforced by section 8
the Contempt of Court Act 1981 prohibiting anyone from obtai
statements made during jury deliberations would seem to pro
the latter kind of investigation.
The injustice that may arise when judges are unable to inq
into the deliberations of juries was highlighted by an English ca
1975. In R. v. Young,88 the Court of Appeal drew a distinctio
tween the actual deliberations of juries and a hiatus between ses-
sions in the jury room. In this case a juror made a statement after the
trial complaining that while the jury was being accommodated in a
hotel between deliberations four jurors had conducted a session with
a ouija board which purported to be in contact with one of the victims
of the murder the accused was charged with. During this session the
spirit of the dead victim was said to blame the accused for his death
and to instruct the jurors to vote guilty the following day. The next
day a guilty verdict was recorded by the jury. The Court considered
that it had jurisdiction to inquire into what happened at the hotel but
the Contempt of Court Act meant that the court could not inquire
what had taken place thereafter in the jury room. It considered that
there was a real danger that what had occurred during the misguided
ouija session may have influenced some jurors and thereby
prejudiced the appellant and the appeal was allowed.

84. John F. Archbold, Criminal Pleading, Evidence and Practice (2001), 4-254; R.
v. Pan; R. v. Sawyer (2001) 200 D.L.R. (4th) 577, para. 77.
85. See Federal Rules of Evidence (2000-2001 ed.), 80.
86. R. v. Blackwell [1995] 2 Cr. App. R. 625.
87. As an example see the questionnaire sent to jurors by the Court of Appeal in
the case of Tony Martin, a Norfolk farmer imprisoned for the murder of a teenage
burglar to ascertain whether they wee intimidated during the trial. See "Martin ju-
rors to be asked about court intimidation," The Times (London), June 20, 2000.
88. [1995] 2 Cr. App. R. 379.

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498 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

The Young case draws attention to the anomaly


between outside jury room discussions and inside
sions. For it would seem that if the jurors had en
conduct of consulting the ouija board during delibe
room, this conduct could not have been investi
plaints are made about what has happened in the j
the verdict is brought in, it is always open to the
the jury but judges who are barred from inquiring
is any substance to the complaints may be unders
to discharge a jury particularly after a long and e
stead judges commonly resort to the practice of ca
to court and directing them to try the case accord
and to put aside any prejudice but it is questionab
very effective approach.
There are signs, however, of growing awarenes
courts to be more vigilant in investigating alleged
Growing human rights awareness is prompting con
to uncover due process impropriety may prejudice
fair trial in a particular case. The European Court
has in recent cases adjudicated upon a number of
ing juror has alleged that there had been racial bi
In Gregory v. U.K.89 a note was passed to the trial
of the jury disclosing that at least one jury membe
cial prejudice. In the customary manner, the judg
and directed them to try the case according to th
Article 6 of the European Convention on Human R
requires the tribunal to be independent and im
emphasized the importance of a tribunal being im
jective as well as an objective point of view but co
judge had dealt with the matter adequately by
worded direction to the jury which was clear detail
which he had checked for understanding. No mor
dispel any objectively held fears about their impar
The case was contrasted with Remoil v. France90 where the trial
court declined to examine a report made to it of a racist remark b
juror on the ground that the alleged remarks had been spok
outside its presence.
The later decision in Sander v. U.K.,91 however, casts doubt o
the adequacy of directing the jury in this way in every case whe
complaint is made about other jurors. In this case a juror pass
note to the trial judge after his summing up complaining that two
his fellow jurors had been making openly racist remarks and jok

89. (1997) 25 E.H.R.R. 577.


90. (1996) 22 E.H.R.R. 253.
91. (2000) 8 B.H.R.C. 279.

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2002] MAKING JURIES ACCOUNTABLE 499

and he feared they would not convict the defend


but because they were Asian. On receiving the n
the jury into the court, read out the complaint t
and asked them to search their conscience overni
they were unable to try the case solely on the e
write a personal note to the judge to that effect
ing. The next morning he received two letters
signed by all the jurors, including the juror who
plaint, stating that they utterly refuted the all
the court that they intended to reach a verdict
second letter was written by a juror who explain
have made jokes, that he was sorry he had given
was in no way racially biased. In response the judge decided he
would not discharge the jury. However, the European Court consid-
ered that the racist allegations were a very serious matter given that
the eradication of racism had become a common priority of all con-
tracting states. The Court considered that the evidence did not on its
own establish that the juror in question was actually biased against
the applicant but that the allegations in the letter were capable of
causing any objective observer to have legitimate doubts as to the
impartiality of the court which neither the collective letter of the jury
nor the redirection of the jury by the judge could have dispelled. Un-
like Gregory there was an admission by a juror that he had made
racist comments and the complaints were much more precise. The
court also seemed affected by the attitude of the applicant's counsel
who insisted throughout the proceedings that dismissing the jury
was the only viable course of action. In view of this the Court consid-
ered that the judge should have reacted in a more robust manner
than by merely seeking vague assurances from the jury. As the judge
did not provide sufficient guarantees to exclude any objectively justi-
fied or legitimate doubts as to the impartiality of the court, the court
considered that there had been a violation of the applicant's right to a
fair trial by an impartial tribunal.
Sander suggests that there may be circumstances which compel
judges to make inquiries of what went on in the jury room, if they do
not wish to discharge the jury altogether, and consequently raises
questions about the compatibility of section 8 of the Contempt of
Court Act with Article 6 of the European Convention.92 After a com-
prehensive study of the New Zealand jury system the New Zealand

92. It has been argued that s. 8 cannot be read compatibly with Article 6 when the
section frustrates the investigation of a genuine complaint which if true, as in R. v.
Young, would mean the defendant had not received a fair trial: see Starmer, Strange
& Whittaker, Criminal Justice, in Police Powers and Human Rights 160-61 (2001).
See also Spencer, supra n. 38. The Criminal Courts Review concludes that the bar
imposed by s. 8 is "indefensible and capable of causing serious injustice" and also
"highly vulnerable under Article 6": supra n. 22, 173.

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500 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

Law Commission has recently recommended that t


the secrecy of jury deliberations should be codifie
mendation was made principally to clarify the obli
dia but the Commission was also concerned that le
stopping the publication of interviews with jurors
investigation of gross misbehavior of a type that
unsafe. In its draft Evidence Code it has argued th
forcement of jury secrecy risks concealing miscarr
that while evidence of jury deliberations concerni
the case should generally remain inadmissible, evid
regularities in the conduct of the deliberations, fo
lar intimidation of a juror during deliberations, sh
when it may disclose a miscarriage of justice.94
While these steps are being suggested in order
fair trial or a miscarriage of justice, judges in the
been more actively investigating complaints that j
ately nullifying the law in breach of instructions g
cide the case according to the evidence and the law
about the merits of nullification are nothing new,
cused more particularly in recent years over a juror
cise the power of nullification on grounds of
publicity was given to one federal trial where juror
against an African-American juror on the panel wh
convict the defendants charged with conspiracy t
tribute cocaine and crack cocaine.96 The trial judg
ror pursuant to his power under Rule 23(b) of t
Criminal Procedure which permits the court to exc
cause after the jury has retired. When the defens
this removal after the remaining eleven jurors con
ants, the U.S. Court of Appeals concluded that a jur
nullify the law is no less subject to dismissal than
regards the court's instructions due to an event or
makes him or her biased or unable to render a fair and impartial
verdict. In the case in hand, however, the court overruled the trial
judge's dismissal because it could not be said beyond doubt that the
juror who was dismissed was unwilling to apply the law.
The decision appears to give the green light to judges to conduct
fairly intrusive investigations when complaints are made that jurors
are not living up to the instructions given to them to render a verdict

93. Supra n. 19, para. 456.


94. New Zealand Law Commission, Evidence (1999), vol. 2, s. 77.
95. Abramson, supra n. 4, at xx - xxi, King, "Silencing Nullification Advocacy In-
side the Juryroom and Outside the Courtroom," 65 U. Chi. L. Rev. 433 (1998).
96. United States v. Thomas 116 F.3d 606 (2d Cir. 1997).

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2002] MAKING JURIES ACCOUNTABLE 501

based on the law and the evidence.97 But these investigations are
dependent on evidence coming to the attention of the judge in the
first place of jurors' misconduct and where the misconduct occurs in
the jury room this means that complaints must come from fellow ju-
rors. As a result steps are also being taken in certain jurisdictions to
encourage jurors to make complaints against fellow jurors who
breach instructions given to them to follow the law and decide the
case solely upon the evidence presented to them. The Californian
Court of Appeal recently upheld a statute which obliges jurors to ad-
vise the court if any juror refuses to deliberate or expresses an inten-
tion to disregard the law or to decide the case based upon penalty or
punishment or upon any other improper basis.98 The defense argued
that this instruction tended to involve the court unduly in the delib-
erative process and would have a "chilling effect" on deliberations be-
cause a juror might be unwilling to hold fast to an unpopular decision
if he or she knew that fellow jurors might report this to the judge.
But the Court of Appeal rejected these arguments and found instead
that the instruction served the important function of protecting the
due process right of litigants to a fair trial and upholding the rule of
law.
The Court rejected the argument that the prospect of judicial in-
vestigations may have a chilling effect on jurors on the ground that
jurors are also instructed not to change an opinion simply because a
majority of jurors favor that decision and they would not be coerced
by the prospect of a complaint made against them. But it is impossi-
ble to deny that these developments shift the focus pretty decisively
away from safeguarding jury independence towards greater jury ac-
countability. A number of other jurisdictions are considering less in-
trusive devices to encourage jurors to act in accordance with the
evidence and the law. Apart from the oath which jurors still com-
monly swear to bring in a verdict according to the evidence, judges
are increasingly being encouraged to give jurors more detailed direc-
tions on how to go about their task of reaching a verdict.99 When
juries fail to agree on a verdict a number of jurisdictions provide for
further detailed guidance from the judge, and suggestions have been

97. For criticism of the decision, see Schijanovich, "Note: The Second Circuit's At-
tack on Jury Nullification in United States v. Thomas: In Disregard of the Law and
the Evidence," 20 Cardozo L. Rev. 1275 (1999). But see also People v. Williams Cal.
No. S066106; People v. Cleveland Cal. No. S078537 (2001)(jurors who express their
intent to engage in nullification should be discharged during deliberation).
98. People v. Morgan (2000) Third Appellate District. See CALJUC, No. 17.14.1.
99. The Final Report of the Blue Ribbon Commission on Jury System Improve-
ment recommended that as part of their final jury instructions, trial judges should
suggest specific procedures for how to conduct the deliberative process: supra n. 19,
recommendation 5.7 and Appendix O. The New Zealand Law Reform Commission
has similarly proposed that the jury should be given more advice on how to structure
their decision making: see W. Young, N. Cameron & Y. Tinsley, Juries in Criminal
Trials: Part Two (1999), Preliminary Paper 97, para. 6.41.

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502 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

made that juries should be encouraged to identify for the court the
issues or questions of law or fact that they are having difficulty
with.100
Another way of discouraging improper conduct from influencing
any final verdicts is, of course, to give jurors themselves powers to
out-vote "rogue" jurors bent on improper conduct. Here we fall back
on the view that jurors as individuals are accountable to each other in
their task of reaching a verdict and if certain jurors are unable t
persuade their colleagues towards their particular point of view, then
the argument is that they must abide by the view of the majority. A
number of jurisdictions have moved towards permitting juries to
bring in majority verdicts in certain circumstances.101 The difficulty
with this solution, however, is that there is no guarantee in thes
cases that it is the majority who are acting properly and the minority
who are acting improperly. Much of the impetus for this change ha
centered around the extent to which rogue jurors succeed in making
juries hang but there is little evidence that even when juries do hang
this is because of one or two "rogue" jurors holding out against a rea-
sonable majority.102 It might just as easily be suggested that when
there is disagreement within the jury this is because a minority of
reasonable jurors are holding out against an unreasonable majority
and that a rule permitting majority verdicts may subvert rather than
encourage due process. Nevertheless if it is assumed jurors are more
disposed to act properly in accordance with the law and the evidence
than improperly, there is some reason to think that when a jury is
split 11-1, it is more likely to be because the hold-out juror is acting

100. The Arizona Supreme Court Rules, for example, permit the judge to offering
the assistance of the judge and counsel to jurors who report an impasse in their delib
erations. See Dann & Logan, "Jury Reform: The Arizona Experience," 79 Judicature
280, 283 (1996). The New Zealand Law Commission has recommended that the Ari-
zona practice be followed so that in cases where juries are having difficulty in reach-
ing agreement judges should ask the jury to identify the area of disagreement and
consider whether there is anything they would like to ask the judge that could help
resolve the disagreement: supra n. 19, para. 395.
101. Supra n. 11. In most cases a majority of 10-2 is required in 12 person juries
Few common law systems have gone so far as to consider the Scottish system where
15 member jury is permitted to reach a verdict on the basis of a straight majority vote.
See Duff, "The Scottish Criminal Jury," in Vidmar, supra n. 1, at 249, 269-72. Al-
though this procedure has been criticized, it has been pointed out that an advantage
of the Scottish position is that there is no such thing as a hung trial and as a result i
is impossible for prosecutors to retry cases, a principle which does not fit comfortably
with the presumption of innocence or with the associated principle of double jeopardy:
see Maher, "The Verdict of the Jury," in The Jury Under Attack 45-52 (Mark Findlay
& Peter Duff eds., 1988).
102. See Kachmar, "Silencing the Minority: Permitting Non-unanimous Jury Ver-
dicts in Criminal Trials," 28 Pacific L. J. 273, 302 (1996). This issue was recently
investigated in research commissioned by the New Zealand Law Commission which
found that in only two of the hung juries jurors reported that the disagreement arose
as a result of a "rogue" juror who refused to consider a guilty verdict: supra n. 99, at
paras 9.10 - 9.13.

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2002] MAKING JURIES ACCOUNTABLE 503

improperly rather than that the other eleven juro


properly and this may be a reason for believing th
verdicts may encourage decisions to be reached in
due process. It could be, of course, that there is si
disagreement between the one hold out and other
hold out is unable to persuade even one other juror
tion after a reasonable period of time, the chances
out's position is more likely to be unreasonable tha
on the other hand, two or more jurors are in the m
stronger chance that the disagreement is over s
greement on the law and evidence and that consequ
due process grounds for accepting a majority less t
The danger in moving towards majority verdi
might simply be content to proceed by way of vot
discussion of all viewpoints. Jury research in the
indicated that quorum rule juries deliberate less eq
regard for the views of the minority.103 A number
consequence do not permit majority verdicts un
some time to try to reach a unanimous decision.10
be directed to begin their deliberations with a discu
a vote and that voting should not take place unti
full discussion of the issues. A further difficulty w
dict is that it raises questions in the public eye abo
rived at. A verdict which emerges unanimously fr
the community is inevitably likely to be given great
a majority verdict which calls out for greater p
This raises the question whether juries should be
greater explanation for verdicts and be thereby m
accountable for their verdicts. As we shall see, que
ing asked about whether even unanimous verdicts
at without the hint of any impropriety should be p

3. Public Accountability
In his classic work, Verdict According to Con
Green has shown how long before the constitutiona
ing the jury's function in the seventeenth and eig
juries exercised considerable freedom over the disp
persons.105 When Henry II asserted the sole jur
Crown over all those suspected of felonies in the e
the Crown had to fall back on local jurors to act as

103. Saks, supra n. 13, at 40.


104. In England a majority verdict may not be accepted unl
considering its verdict for such period as the court consider
nature and complexity of the case and in any event not less than
1974, s. 17(4).
105. Supra n. 57.

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504 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

ers of guilt as there was not the state bureaucracy


nal system of justice managed entirely by officials. The royal
authorities therefore had to acquiesce in a degree of lay control over
the administration of justice and were unable to prevent juries exer-
cising considerable freedom in deciding who should be spared from
the royal sanction of capital punishment. In this sense Green has
explained that the history of the jury is the history of mitigation. As
royal power increased it also became convenient for the authorities to
acquiesce in this freedom. According to Green, "[t]he relationship be-
tween the authorities and the institution of the jury was symbiotic.
Authorities took their standards at least in part from juries; through
the jury, authorities achieved more substantial enforcement of those
standards than they might otherwise have achieved."'06 Having a
separate institution serve as mitigators of punishment while at the
same time pronouncing harsh penalties fitted a religious ethic that
portrayed the enforcement of the criminal law as part of a religion-
based process of rehabilitation or moral regeneration. The price that
the authorities paid for having a lay body help legitimize royal power,
however, was that their power to determine the application of the
substantive laws was very limited.
This ethic of jury discretion also meant that the jury could be-
come a focus for political dissent. So when Lilburne was tried in 1649
on a charge of treason for engaging in publications against the gov-
ernment, he was able to appeal to the jury as "judges of law as well as
fact". This claim to a jury right to decide the law brought the crimi-
nal trial jury into the forefront of English constitutional and political
debate as juries delivered verdicts contrary to law and a power strug-
gle developed between judges and juries. The struggle is commonly
considered to have been settled by Sir John Vaughan C.J.'s
landmark decision in Bushel's case in 1671 to release the jurors who
had been imprisoned for acquitting the Quaker William Penn of un-
lawful assembly. Vaughan ruled that trial judges had to accept the
verdict of juries and had no power to coerce a jury into deciding in a
particular way. Although this judgment is commonly hailed as the
constitutional cornerstone on which juries gained their indepen-
dence, the struggle was in truth only partially settled by this judg-
ment as judges then began to require that juries deliver special "fact-
based" verdicts in seditious libel cases from which the judges them-
selves would apply the law.107 This battle was not won for juries un-
til 1792 when Fox's Libel Act was enacted stating that in trials for
seditious libel the jury sworn to try the issues may give a general
verdict of guilty or not guilty upon the whole matter put in issue. It

106. Id. at 374.


107. For an excellent discussion of the aftermath to Bushel's case, see Patric
lin, The Judge 115-48 (1979).

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2002] MAKING JURIES ACCOUNTABLE 505

followed that juries could not be required or direct


fendant or defendants guilty merely on the proof of
of the explanation for this defeat for the Crown and
the authorities had so long acquiesced in the jury h
mitigation in common felony cases that it seemed in
not to share power in more politically charged case
the authorities had reaped a bitter harvest largely of
ing but it was a harvest that they could not have e
Green puts it, "[h]aving (over the centuries) conver
nesses into moderate strength, England's rulers found that that
strength had, after all, its natural limits."'09
The right of the jury to bring in a general verdict was seen as one
of constitutional standing and this has prevailed to this day through-
out the common law world in criminal cases. Special verdicts may be
requested by juries when they are perplexed about the law and it
would seem that judges in England may request but not demand a
special verdict in difficult complex matters.110 Special verdicts are
also rare in criminal cases in the United States where the United
States Court of Appeals has ruled that the constitutional gua
of due process and trial by jury require that a defendant be a
the free protection of a jury unfettered directly or indirectl
judge."1
Judges in England continued to exercise considerable pow
coercion over juries in terms of producing a verdict until
nineteenth century and Lord Devlin has described how even
twentieth century certain English judges never totally accep
right of juries to put aside the law.112 He identified two sch
legal thought regarding the scope of the jury's function. Th
the school which would like to treat the jury as a subordinate
find only such facts as are in dispute within the bounds of re
ness as set by the judge where to wander outside these boun
be perverse. The other school of thought respected the ju
equal and considered that it was the very freedom of jurors to
so-called perverse way which gave them their strength.
It is this latter school which has been in the ascendancy
since the libel debates in the late eighteenth century but it
to be challenged over the intervening years across the comm
world for a number of reasons. There are two sets of reasons for this.

108. Green, supra n. 57, at 351.


109. Id. at 351-52.
110. R. v. Davies [1897] 2 Q.B. 199. One famous example is R. v. Dudley
phens 14 Q.B.D. 273 (1884) where two seamen were charged with the mur
cabin boy Richard Parker and the judge requested a special verdict. For
account of how the judge in this case manipulated the jury's special ver
A.W.B. Simpson, Cannibalism and the Common Law (1984).
111. Heald v. Mullaney 505 F.2d 1241 (1974).
112. Devlin, supra n. 107, at 126-31.

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506 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

First, there are reasons which center upon the dec


jury's power of nullification and, secondly, there
point to the need for juries to be made more pub
To come to the nullification debates, first of all, we have seen
that historically the jury's role as mitigator of punishment grew into
a broader role of having the power to refuse to follow the law and
convict in a particular case. Today it may be said that there are two
broad reasons why a jury may wish to refuse to follow the law. First
of all, a jury may decide that it is unable to convict the accused be-
cause although his or her acts constitute a crime they were justified
in the circumstances. Secondly, a jury may decide to exercise clem-
ency to offset the harshness of the criminal justice system in respect
of the penalty for the offence charged or in respect of a prosecution
which the jury believe is inappropriate. In these instances the jury is
not necessarily suggesting that the accused's acts were justified,
rather that they should be excused by an acquittal. This category
would include situations where a jury acquits an accused on grounds
of race because they think that persons of a certain racial origin can-
not obtain justice in the prevailing criminal justice system.113
If we consider the first ground for exercising nullification we can
see that there has been a gradual shift of opinion away from encour-
aging jurors to reach their own view of whether the defendant de-
serves to be convicted. The justification for this kind of nullification
reached its heyday in the common law world during the American
colonial period. If Bushel's case is represented as the cornerstone
case which established the power of the criminal jury in England to
disregard judicial instructions on law, Zenger's case in 1735 which
resulted in the acquittal of a printer charged with seditious libel has
come to represent the cornerstone case establishing the American co-
lonial jury's right to decide the law.114 Strictly speaking, when the
jury are given this right, it may be said that they are not exercising a
nullification power at all. In deciding the law they are given the au-
thority to make and develop the law, rather akin to the power given
for centuries in the common law system to judges. However, it would
seem that in the tradition of lawmaking by juries that followed
Zenger's case, judges would first state their view of the law and then

113. See Butler, "Racially Based Jury Nullification: Black Power in the Criminal
Justice System," 105 Yale L.J. 677 (1995). This kind of nullification has been de-
scribed as "nullification of the third kind" in that the jury may have no qualms about
the law or about how it is being applied but acquit in order to send some more impor-
tant message, political, ideological or racial, to someone. See Hodes, "Lord Brougham,
the Dream Team and Jury Nullification of the Third Kind," 67 U. Colo. L. Rev. 1075
(1996). But in our differentiation this may also classified as a situation where the
jury excuse a defendant on the ground that the prosecution should not have been
brought.
114. Scott, "Jury Nullification: A Historical Perspective on a Modern Debate," 91
W. Va. L. Rev. 389, 416 (1989).

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20021 MAKING JURIES ACCOUNTABLE 507

they would be directed that they had the right to s


view of the law.115 This tradition carried on for a
after the founding of the United States. But it cam
accepted that citizens were better protected in a rep
for democratic processes to change the law rather
this to juries.16 There were a number of reasons f
ing conceptions of the nature of law and democracy
appropriate for jurors to make local laws and at the
themselves were becoming more heterogeneous in
and less able to serve the new values of certainty an
legal rules. As a result it became less common for
rected that they had the right to decide the law, so
the nineteenth century the right of juries to deci
had been repudiated virtually everywhere.118
The Supreme Court decision in Sparf v. U.S.11
the final nail in the coffin of the idea that juries
law, the court fearing that a "government of laws"
by this idea to the mere "government of men."120 F
of the twentieth century the nullification debate s
question whether juries should be instructed that
power to engage in nullification.121 Increasingly, a
century progressed the need for a government of la
sified as the nation state developed detailed systems
the conduct of business and individuals. As society
heterogeneous and more complex, legislatures have
policy choices taking account of a range of conside
morality, political feasibility and social and econ
and juries are just not equipped to reevaluate these policy
judgments.122

115. Gordan, "Juries as Judges of the Law: The American Experience," 108 L.Q.
Rev. 272 (1992).
116. Schijanovitch, supra n. 97, at 1282.
117. Abramson, supra n. 4, at Chap. 2.
118. Id. at 85.
119. 156 U.S. 51 (1895).
120. Id. at 102-103.
121. Scheflin & Van Dyke, "Jury Nullification: The Contours of a Cont
Law & Contemp. Probs. 51 (1980), Schijanovitch, supra n. 97, at 1275. It i
tled that federal court judges are under no obligation to inform the jury of it
return a verdict contrary to the law and the evidence (United States v. Dou
F.2d 1113 (D.C. Cir. 1972)). But this has remained a contentious issue in the United
States throughout the twentieth century. In the latter quarter of the century, how-
ever, the prevailing view would seem to have shifted from one of grudging respect for
resort to nullification towards an all-out attack on its exercise. Schijanovitch views
the Second Circuit US Court of Appeals decision in U.S. v. Thomas in 1997, discussed
supra n. 96 and accompanying text, as a sign of this new ground being broken.
122. See Warshawsky, "Opposing Jury Nullification: Law, Policy, and
Prosecutorial Strategy," 85 Ga. L.J. 191, 214-215 (1996).

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508 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

The second broad ground justifying jury null


roots in the ancient role of the jury as mitigator.
gued that the jury should exercise nullification wh
the criminal justice system has acted oppressive
cused. But increasingly over the last two centurie
sidered unnecessary for juries to resort to nullifica
either because the inequities within the criminal j
been ameliorated or because there are ways of remedying them
within the legal system that can be resorted to. At the very time
when the jury's lack of accountability in its application of the law was
vindicated in the battle over seditious libel in England and the jury
achieved its right to bring in a general verdict, the tide began to turn
against its use of discretion in mitigation. Pressure began to mount
for a more predictable regime of criminal law and sanctions which in
turn reduced the need for juries to exercise mitigation.123 It is true
that this tide took quite a time to turn as juries in England continued
to acquit defendants charged with minor offences such as theft well
into the nineteenth century because the punishment for such convic-
tions was death.124 Throughout the twentieth century also juries in
the United States used their power to acquit defendants who were
given mandatory death sentences.125 The recent trend towards
greater mandatory sentencing may be thought to revive the justifica-
tion for this power in hard cases.126 By and large, however, the stan-
dard approach of the legislature towards penalties since the
nineteenth century has been to provide for maximum and minimum
sentences for many criminal offences. A multiplicity of different of-
fences has emerged with different graded maximum penalties with
the result that there has been less need for juries to exercise their
power of nullification in order to mitigate against harsh penalties.
It is still, of course, possible for accused persons to be made the
subject of vexatious prosecutions or to be subjected to governmental
abuse of power. But as the courts have proved more active in prevent-
ing encroachment on constitutional rights by the state, it has been
argued that the need for the jury to act as an independent and unac-
countable buffer between the state and the individual is reduced sig-

123. Green, supra n. 57, at Chap. 9, Leon Radzinowicz, History of English Crimi-
nal Law, vol. 1 (1948).
124. See Jerome Hall, Theft, Law and Society (1952).
125. Mandatory death sentences for first degree murder were held to be unconsti-
tutional in Woodson v. North Carolina 428 U.S. 280 (1976).
126. One of the arguments for encouraging the use of jury nullification in dr
cases involving African-Americans has been because these drug laws mandate pr
for mere possession of crack cocaine. See Butler, supra n. 113. For discussion of
mandatory sentences for drug offences in the United States, see Weinstein & Qu
"Some Reflections on the Federal Judicial Role during the War on Drugs," in Sea
Doran & John Jackson, supra n. 35, at 269.

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2002] MAKING JURIES ACCOUNTABLE 509

nificantly.127 Other procedural devices developed by


as the entrapment defense, the abuse of process claim
vindictive or malicious prosecution are said to elimina
the nullification power.128 It cannot be said that the
systems in common law countries have all put their h
It has been claimed that the high proportion of Africa
fendants in the U.S. system is evidence of the system'
fication continues to be justified as a check on governmental
power.129 But increasingly there is less satisfaction with nullification
remedies which are seen as a crude methods of ameliorating these
deficiencies and we have seen that in recent years strong steps have
been taken by judges to try to eliminate the exercise of this kind of
nullification.130
Another problem with exercising nullification on grounds of
mercy or on grounds of governmental abuse is that it undermines the
standing of the victim. In the latter half of the twentieth century
there has been increasing interest in the role of the victim within the
criminal justice system.131 The characterization of the criminal trial
as a contest between the state and the accused overlooks the status of
the victim and there has been concern that in weighting the criminal
process of proof in the direction of the accused, the victim's interest
has not been taken into account. When the evidence does point
strongly towards the guilt of the accused, however, and the jury still
refuses to convict, the victim's status is denigrated still further.132
The jury may not intend to express this denigration but the effect is,
nevertheless, that the jury is refusing to condemn the defendant's
conduct towards the victim. Of course, the jury may believe that the
defendant's action was justified and the victim does not deserve pro-
tection. It would then be exercising nullification of the first kind iden-
tified. The victim could still complain that the jury has not
recognized his or her legal claim to protection and this would be part
of a general objection against the first ground of nullification, namely
that the jury is not following the rules of law. At least, however, the
victim's claim would be taken into account by the jury in these cir-
cumstances. When the jury exercises nullification on grounds of ex-
cuse or abuse of governmental power, on the other hand, the victim
would seem to have an even greater complaint, namely that his or
her interests have been ignored altogether.133

127. O'Hanlon, "The Sacred Cow of Trial by Jury," 27 Ir. Jur. 57 (1990).
128. See Leipold, "Rethinking Jury Nullification," 82 Va. L. Rev. 253 (1996).
129. Butler, supra n. 113.
130. Supra nn. 95-97 and accompanying text.
131. See, e.g., Christie, "Conflicts as Property," 17 British J. Criminology 1 (1977).
132. Schopp, "Verdicts of Conscience: Nullification and Necessity as Jury Re-
sponses to Crimes of Conscience," 69 S. Cal. L. Rev. 2039, 2098 (1996).
133. One of the difficulties of the general verdict, of course, is that it is difficult to
know on what basis a defendant was acquitted. One notorious example of jury nullifi-

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510 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

As the grounds for exercising nullification have f


the jury's role is increasingly seen as one in whic
adjudicate according to the law as directed by the j
jury's role is no different from that, say, of a judg
jury then it may be asked why juries should not b
accountable for their decisions as judges. At one lev
we have said, the jury as an institution may be said
mand for greater public accountability in a soft
commonly viewed as a democratic process. Lord De
as a "little parliament."'34 In our comparisons of
judge-only (so-called "Diplock") trials in Northern I
that the jury also instills greater openness and t
court procedures by requiring parties to justify
court.135 The legal directions given to the jury als
which the values of the criminal law can be open
and reinforced to the public. In this way the instit
to assist in making other aspects of the criminal jus
accountable to the public, principally the prosecuti
gal process, legal norms and values. The summin
by the judge to the jury has been said to play an im
expressing the values of the criminal law but it als
role in helping to ensure that these values are acco
tified.136 The jury nevertheless remains, as we h
ingly secretive in its own decision making and at a
institutions within the criminal justice system are
count and be held accountable for the grounds of
questions are increasingly being asked as to why ju
as well.137
Finally, the lack of public accountability of the jury is being seen
by some as an obstacle to securing human rights. We have identified
due process accountability as ensuring that decision makers adhere
to the correct procedures in arriving at decisions. But increasingly as
we have seen it is considered that the parties are entitled to know
why they have won or lost. In other words parties are not only enti-
tled to know how decisions were arrived at but also why the decision
maker came to reach the decisions arrived at. Apart from the parties

cation in England arose in 1992 when a jury acquitted Stephen Owen of the murder of
a lorry driver whose reckless driving killed his son. It is hard to know whether the
jury acquitted here because they believed Owen's conduct was justified or because it
believed that murder was an inappropriate offence in the circumstances. See M. Ber-
lins, 'Writ Large," The Guardian, May 27, 1992.
134. Patrick Devlin, Trial by Jury 164 (1956).
135. Supra n. 65, Chap. 7.
136. See Doran, "The Symbolic Function of the Summing-Up in the Criminal Trial:
Can the Diplock Judgment Compensate?," 42 N..L.Q. 365 (1991).
137. See, e.g., Gibbons, "Explaining the Verdict," 147 New L.J. 1454 (1997), Prich-
ard, "A Reform for Jury Trial?," 148 New L.J. 475 (1998).

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2002] MAKING JURIES ACCOUNTABLE 511

being entitled to reasons, we have seen that it can a


the discipline of providing reasons can enhance the
making and provide for greater scrutiny of decisio
way in which the European Court of Human Right
self that decision makers have conformed with the
the European Convention of Human Rights, such as
sure that pre-trial detention does not exceed a reas
scrutinizing the reasons given for decisions.139 In th
cle 6 which guarantees a fair trial, the Court has st
tance of a reasoned judgment, particularly in the c
evidence or evidence which cannot solely justify a c
ray v. U.K.,140 for example, the court stated that t
silent which it has recognized as an inherent part o
anteed under Article 6 did not exclude a court dr
from an accused's failure to provide an explanation
it would not be consistent with the immunities aff
vention if a defendant were convicted mainly or sole
of his or her silence. The Court considered that c
had to be in place before inferences could be drawn
the importance of the availability of reasons for dr
Where there is a reasoned judgment setting out th
viction, it is then possible to scrutinize what relian
defendant's silence in arriving at a decision of guil
The Court has stopped short of requiring reasons
judgments and has accepted that one way of com
lack of a reasoned judgment is a carefully framed d
judge.141 It is clear, however, that this imposes an
the trial judge. In Condron v. U.K.,142 for example
who were charged with drug offences refused to me
police which they later relied on at trial, namely th
seen receiving and returning packets, these packet
rettes or money and not drugs. Although the judge
the defendants' explanation for silence at the po
was that their lawyer had told them to remain silen
to the jury to draw an adverse inference from thi
Court considered that the judge's direction had
enough. Pointing out that it was impossible to asce
if any was given to the defendants' silence as the s
soned judgment was absent in the case, it said that

138. Supra nn. 43-44 and accompanying text.


139. See, e.g., Letellier v. France (1991) 14 E.H.R.R. 83, para.
(1992) 15 E.H.R.R. 1, para. 84; Yagci and Sargin v. Turkey (199
para. 50.
140. (1996) 22 E.H.R.R. 29.
141. Saric v. Denmark Application No. 31913/96, February 2, 1999.
142. (2000) 30 E.HR.R. 1.

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512 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

compelling in these circumstances to ensure that


erly advised on how to address the issue of the
The decision raises questions about whether the co
acting under the aegis of the Convention will for l
out against the need for juries to give reasons.143
difficulties in requiring a tribunal of 12 persons t
reasons for decisions and other means of accounta
be considered.144 Before we consider how such a bo
accountable for its decisions, we must analyze w
ment for greater accountability is justified.

IV. TOWARDS A THEORY OF JURY ACCOUNTABILITY

1. Two Structures of Authority


In order to consider the extent to which juries should be made
accountable in each of the respects identified, we need to have some
over-arching theory of what role lay decision makers should perform
in the modern legal system. If we return to the ideal structures of
authority propounded by Damaska we can construct what this role
should be within the coordinate and hierarchical ideals. The coordi-
nate ideal stresses the importance of lay decision makers coming
from the community being given the authority to infuse their own
standards into the legal standards they are informed about and being
given the independence to stave off any official pressure. Ill-equipped
as lay persons to conduct lengthy investigations into the facts of the
case, they need to rely on the parties to the action to generate evi-
dence and present it to them at one concentrated proceeding. As
their decision is entitled to relative immunity from official review,
any quality control designed to ensure decisional rectitude must pre-
cede rather follow the initial decision. Since the emphasis is on the
community, decision attempts must be made to choose a group which
is as reflective of the community as possible and, to ensure that the
decision is suffused sufficiently with the views of all the community,
great store is placed on the importance of deliberation and on trying
to achieve as much consensus of decision making as possible. The
decision that results can therefore be respected as that of the commu-
nity rather than as that of one section of the community. While com-
ing from the community and reflecting the community, decision
makers are nevertheless not representative or accountable to the
community and to protect sections of the community hijacking the
decision, the deliberation process must be kept secret. When the de-

143. See R. Verkaik, "New Law Will Force Juries to Give Reasons For Verdicts,"
The Independent (London), August 25, 2000.
144. The Criminal Courts Review of England and Wales (supra n. 22) suggested a
system of structured decision making whereby juries would have to answer questions
put by the judge, discussed infra nn. 166-67 and accompanying text.

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2002] MAKING JURIES ACCOUNTABLE 513

cision is made, however, decision makers may b


plain their reasoning to the community so that
given the respect that it needs to earn legitimac
ers have no legal obligation to explain the ground
anyone. The only control that might be exercise
ers would be if they refused conscientiously to ca
reaching a decision or refused to deliberate with
bored some particular grudge or prejudice wh
reaching a decision on the merits of the argume
the parties.
By contrast lay decision makers in the hierarc
much more constrained by a legal hierarchy o
may be asked whether lay decision makers have
chical system at all. They are required to take t
the legal rules handed down to them but they m
bringing a range of experience to bear on fact
much store is set on the precise application of t
facts, they are assisted in their fact-finding end
cials rather than the partisan parties to the dispu
is more convenient for them to sit with legal de
than independently on their own. They are neve
play an active role in gathering and testing the
that are arrived at have to be justified to those
hierarchy and in consequence reasoned decisio
Less importance is attached to a unanimous decis
views of all the decision makers. What is import
reasoned decision, by majority vote if necessary,
for the decision so that it can be properly scrut
legal hierarchy. With so much importance place
sion, less emphasis is attached to how decisions
decision makers. Any defects in outcome caused
cess can be rectified higher up the hierarchy.
It is easy to see what kinds of accountability
these ideals. In the coordinate ideal, party contr
diminishes the need for jurors to be cognitiv
clearly as jurors attempt to wrest control away
explore avenues of inquiry independently of
should be more prepared to explain their reason
parties. By contrast as lay decision makers, ac
with legal officials, take a more active cognitive
and testing information in the hierarchical idea
more cognitively accountable to the parties. Due
ity, on the other hand, becomes more importan
ideal where lay decision makers are given consid
in bringing community norms to bear on the facts found in the case

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514 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

but the parties are entitled to insist that the decis


ing in good faith in judging their case. Under the
due process accountability is of lesser importance
sion makers are publicly accountable for the subs
they reach.
Clearly the classic common law jury fits the coordinate ideal
much better than the hierarchical ideal. But we have seen that a
range of pressures have been brought to bear to make the jur
accountable on each of the grounds of accountability identified
of these have more to do with changes in the nature of the lega
dures in which juries operate. So we have seen that as the lega
cess moves more towards court decision makers taking respon
for gathering and collecting evidence away from the more adv
structure of party control, so it is likely that there will be g
calls from the parties for the court decision makers to reveal
their minds are thinking before they reach any final decision
case. But attachment to a coordinate model of authority valuin
lay participation in decision making makes it difficult for such
to take place. So long as lay participation is highly valued i
seem that there are going to be limits on the extent to which
put lay decision makers in control of evidence generation and
then on the extent to which we need to require cognitive accou
ity of them before any final decision is reached. We have see
ever, that notwithstanding the relatively passive role whic
play during the trial, they still bring their own schemas to t
dence and there is an argument which we shall return to late
mechanisms should be found to enable the parties to have som
cess to these thought processes.145
This brings us to the pressures for greater accountability
have resulted from changing conceptions of the lay decision m
role in the modern criminal trial. The more heterogeneous an
plex nature of modern society has made juries chosen at rando
society less able to reflect the norms of the entire community
same time changing conceptions of the nature of the state hav
it seem less desirable for juries to be given the freedom to reflect
munity norms in their decision making. We have seen that th
been a consensus that it is no longer appropriate for juries to
the law.146 Rather the question has focused on whether jurie
be instructed that they may diverge from the law as directed
judge and, more recently, it has even been asked whether
should have any power to nullify the law at all. The question
how far we are prepared to see lay decision makers abandon th
dinate ideal in favor of accountability towards a legal hierarc

145. Infra n. 177 and accompanying text.


146. Supra nn. 119-21 and accompanying text.

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2002] MAKING JURIES ACCOUNTABLE 515

One way of analyzing how far the decision maker's role has
changed from the coordinate ideal is to ask whether there are any
longer any respects in which the jury's role should diverge from that
of the judge. We have seen that there have been pressures to make
judicial decision making more publicly accountable in a hierarchical
sense by requiring judges to give reasons. If juries are no different
from judges, why they should not be asked to follow suit? This is a
different question from asking whether we prefer judges to juries.
We may consider that there is value in having a lay input into fact
finding and even into applying the law in cases where the legal stan-
dards are somewhat open textured and we may wish to put such
weight on this lay input that we give juries the authority to make the
final decision on guilt or innocence. But why should we not then ask
them to account for the decision they arrive at? Because of the value
we wish to put on lay fact finding and lay application of the law we
may wish to have lower thresholds for reversing decisions higher up
the hierarchy when juries are the decision makers. But is this a rea-
son in principle why we should not seek reasons from juries? At the
end of the day they are being asked to apply the publicly declared law
to the facts and there would seem to be little reason in principle why
they should not be any more publicly accountable for their decision
than a judicial figure.
It is suggested that one reason why we are reluctant to make
such accountability demands on juries lies in our continuing attach-
ment, still in the early twenty-first century, to some residual nullify-
ing role for juries. A distinction has been made by Schopp between
intrasystemic and extrasystemic nullification.147 Intrasystemic nul-
lification occurs when the jury appeals to the principles of justice em-
bedded in the law in order to justify the accused's actions. Schopp
gives the example of a bicyclist who is prosecuted for breaking and
entering a property in order to telephone for an ambulance to help a
car accident victim.148 According to ordinary criminal law principles
the protection of life is valued more highly than minor violations of
property rights and the bicyclist does not therefore deserve to be con-
victed. Extrasystemic nullification occurs when the jury justify the
accused's actions by an appeal to some standards not recognized by
the legal system. The reason why we are prepared as a community to
license both these kinds of nullification is that even in a liberal de-
mocracy where laws are enacted in a democratic fashion we are
hardly so confident in the ability of the substantive criminal law to
prevent every conceivable injustice in every individual case. Of
course, judges could be given power to direct on a broad defense of
necessity and this could offset the need for intrasystemic nullifica-

147. Supra n. 132.


148. Id. at 2085.

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516 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

tion. Similarly, the courts themselves could be giv


lify unjust laws to offset the need for extrasystemi
it is likely that there would still be situations whe
jurors to refuse to convict on extrasystemic groun
have no quarrel with the state of the law. An exam
gives is where a jury refuses to convict an accused o
he has illegally removed a respirator from his wife
dered comatose after a heart attack and who had re
this should she ever be placed in this position.149 T
not necessarily consider it is wrong to prohibit the
appeal to extra-legal standards of morality to justif
tions. In a similar fashion we cannot be confident that the criminal
justice system will work so fairly for all categories of persons that
may not want juries on occasion to refuse to convict individuals
have been harassed by the criminal justice system or who are lik
to suffer unfair penalties at the hands of the system.
If we allow a role for nullification in these instances, however
makes no sense to say that the jury should always be made public
accountable to the legal system because by their very nature the
acts of nullification are challenges to the legal system. Intrasyste
nullification involves the jury second guessing the legislature and
courts on what the proper legal boundaries should be and extra nu
fication involves the jury substituting its own private morality o
value system for that of the legislature and courts. The jury's ex
cise of nullification in these circumstances is best viewed as a priv
act of dissent from the legal norms quite different from when the jur
decides to apply the laws authorized by the legal system. It is for
reason that although we may license nullification, it is inconsiste
for the legal system to allow instructions permitting jurors to nul
on either ground.150
If we recognize the legitimacy of this nullification role, it wou
seem that juries are much better placed to fulfil this role than jud
Both judges and juries have a duty to respect the laws and app
them to the facts in their decision making and both may for reas
of conscience decide to put this duty aside. But judges play a diff
ent institutional role within the legal system from juries. They sw
not only to apply the law in specific cases; they are asked in t
capacity as a judge to swear to serve in the office of upholding t
law. As the holder of judicial office, they in effect represent the law

149. Id. at 1110.


150. This is the essence of Schopp's argument. According to his argument, in-
trasystemic nullification which appeals to principles of justice embodied in the crimi-
nal law collapses into a necessity defense in that it represents the judgment that
those principles justify the conduct in question. Consequently, "instructions regard-
ing this variant of nullification would either duplicate necessity instructions or reveal
an error in the court's analysis of necessity or this form of nullification.": id. at 2103.

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20021 MAKING JURIES ACCOUNTABLE 517

a much more institutional sense than a lay jury. Wh


to apply the law they are acting incompatibly with
hold the law. When juries refuse to apply the law th
low the legal instructions given to them but they m
acting compatibly with a wider community role whi
tue of their institutional role are incapable of playin
ing this community role juries are acting in a pr
capacity rather than in a public capacity as a repres
community, for it is particularly hard in today's het
ety for juries to act in any representational sense. T
members of the community but they no more repre
nity than they represent the legal system, hence th
they are given to exercise their own consciences acco
a freedom which has bounds. While we permit jurie
role in respect acquittals, we do not permit them to
order to convict on the basis of some extra-legal st
tions must be based on the declared law and this is
the defense to appeal against wrongful conviction
appeal courts to quash convictions which are not bas
and the evidence. The modern jury may therefore b
both coordinate and hierarchical ideals of authority
model still prevails in respect of jury acquittals but
ideal prevails in respect of convictions.

2. Accountability towards the Legal System


With this refined role marked out for the modern common law
jury, we can return to examine the extent to which jurors should be
made accountable within the legal process for the way they reach
their decisions and for the decisions they reach. To come to their de-
cisions, first of all, it would seem that while juries should remain un-
accountable for acquittals in the sense that they should not be
required by the legal system to give reasons for acquittals, they
should, on the other hand, be made accountable for convictions. It
would still be possible to insist that juries give reasons for acquittals
even if a nullification role were conceded for juries. But this could
lead to unnecessary conflict with the legal system. If, as has been
argued, the jury's exercise of nullification is best viewed as a private
act of dissent from the application of legal norms, it is inconsistent for
the legal system to require a public explanation for it just as it is
inconsistent for it to allow instructions permitting jury nullification.
To say that juries should be made accountable for convictions,
however, says nothing about how exactly this should be done. There
are obvious practical obstacles in asking an untrained body of 12 men
and women to come up with a cogently argued reasoned decision.
One approach is to consider how more hierarchically ordered civil law

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518 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

countries have held their jury systems accounta


It is an irony that has not gone unnoticed that
common law juries in many systems are com
scrutiny, certain civil law countries are expand
criminal jury.151 Civil law juries as opposed to
judges and jurors sit together are more commo
rope than is often thought and in recent years
both seen a resurgence in the use of jury trial.15
nental jury system was an export from Englan
originally exported in revolutionary France ther
ences in the way in which it was introduced int
For example, continental juries have never ac
rule - now gone in many common law countrie
tion judges were given a more intrusive role. L
cases given judges the right to ask juries to rec
and sometimes to send a case for trial before a
they disagreed with the juries' verdict, especial
disposed to convict the accused.155
Another feature of civil law juries is that th
quired to deliver more than a mere guilty or n
dict. Sometimes juries are asked to do little more than answer
questions on the relevant offences charged. In Belgium, Denmark
and Norway, for example, the jury is provided with a written list of
ingredients concerning each offence, possible defenses and mitigating
factors.156 By contrast the task of the Spanish jury is more com-
plex.157 The parties draw up with the judge a document containing
the facts put forward by the prosecution and defense in the course of
the trial. The document will then set out the extenuating circum-
stances and the facts that may determine the degree of participation
of the defendant in the crime for which the defendant will be found
guilty or not guilty. This document will form the basis of the jury's
deliberations. After voting on each of these issues, the jury has to

151. Thaman, supra n. 23, at 319.


152. See Thaman, "Spain Returns to Trial by Jury," 21 Hastings Int'l. & Comp. L.
Rev. 241 (1998), Thaman, "The Insurrection of Trial by Russia," 31 Stan. J. Int'l L. 61
(1995). Spain and Russia have joined a number of other continental civil law systems
which jury trials operate in Austria, Belgium, Denmark, Norway, Portugal and in the
cantons of Friburg and Geneva in Switzerland. See Vidmar, supra n. 1, at 444-46.
153. Carmen Gleadow, History of Trial by Jury in the Spanish Legal System
(2000), Chap. 1.
154. Supra n. 19.
155. Thaman, supra n. 23, at 46-347.
156. Traest, "Juries, Evidence and the Role of Lay Participants in the Belgium
Criminal Process," in Proceedings of the First World Conference on New Trends in
Criminal Investigation and Evidence 373 (J.F. Nijboer & J.M. Reijntjes eds., 1997);
Anderson, "Lay Judges and Juries in Denmark," 38 Am. J. Comp. L. 839 (1990); Era
Smith, The Danish Jury and Lay Judge System (forthcoming) (Denmark); Pizzi, supra
n. 48, at 103 (Norway).
157. See Thaman, supra n. 23, at 338-47, Gleadow, supra n. 153, at ch. 7.

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2002] MAKING JURIES ACCOUNTABLE 519

draw up a document under the five headings of


proved, the facts not proved, the declaration gui
reasons for why they consider the facts proved or n
voting incidents during deliberation.
In many ways this procedure is a combination
special verdict and general verdict procedure bu
not been free from difficulties. One problem is t
and has proved burdensome for juries. In one no
as the Otego case, concerning a defendant accuse
licemen in the Basque area, the jury found he h
but was not responsible for his actions. The verd
publicity and was thought to be attributable to a
on the part of the jury.158 But there were also c
that the jury had to answer ninety eight questio
verdict, many of which it was said the jury had d
ing.159 There has also been concern regarding th
reasons.160 Judges have sometimes had to retur
jury for proper completion. However, this seem
relatively rarely and the cases have seemed to
solved when handed back to juries. The new Span
only been in force since 1995 and it is early to m
about its operation. But it does not seem that
measures which are required are proving unwor
These changes would represent quite a radical
common law criminal jury practices. The U.S. Co
considered that asking juries questions based o
"catechizing jurors away from an acquittal towar
logical conviction. Yet the jury, as the conscienc
must be permitted to look at more than logic."16
be argued that the requirement on juries to answ
specific elements of a criminal charge forces th
their basic legal duty to convict only if satisfied
ments of the offence have been proved. Fiel
shown that in trials where special verdict form
reported feeling better informed, more satisfied,

158. See Gleadow, supra n. 153, at 275


159. Thaman, Spain Returns to Trial by Jury, supra n. 1
detailed study of the question lists that juries can be given
51.
160. Gleadow, supra n. 153, at 279.
161. U.S. v. Spock 416 F.2d 165 (1st Cir. 1969). The use of s
more frequent in civil cases, although here also there have
procedures may lead juries to arrive at a different result fr
decided if they had been asked to bring in a general verdict
plaintiffs may be disadvantaged when juries are specifically
plaintiff on all the issues. See Lempert, "Civil Juries and
Rush to Judgment," 80 Mich. L. Rev. 68, 113 (1981).

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520 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

their verdict was correct and reflected a proper understandin


judge's instructions.162
There are signs of a greater willingness to identify more
the issues for the jury even in criminal cases. There is now
greater willingness to contemplate giving jurors at least copie
jury instructions on which to base their deliberations.163 Ce
common law systems are also regarding it as sensible to give
series of questions for them to consider in the course of their
tions. In its research of jury practice the New Zealand Law C
sion found that judges occasionally would provide the jury n
with an outline of the elements of the offence but also a flow chart
with a sequential list of questions derived from the elements of t
offence,164 and the Commission has recommended that their use b
encouraged especially in complex cases.165 These recommendations
have been made to aid decision making rather than to assure the pa
ties and the public that any conviction is based on the elements of t
offence. The judges who provided juries with flow charts did not
quire them to provide answers to each question but were told that
questions might prove useful as a basis for systematizing their dis
cussions. More recently, however, the Criminal Courts Review of E
gland and Wales has recommended a procedure whereby juries cou
be required to answer publicly each of a series of written factu
questions which lead logically to a verdict of guilty or not guilty a
to declare a verdict in accordance with these answers.166 It has been
argued that a requirement that juries give reasons for acquittal int
feres unduly with their nullification role and it may be similarly a
gued that a requirement that juries explain a verdict of acquittal
means of answers to questions similarly inhibits their freedom to
ercise this role. By contrast, however, the idea that juries should
required to provide answers to questions on elements of the crimi
charge as a means of arriving at a guilty verdict is one that should
encouraged. One danger in practice is that juries might be tempte
to answer "yes" or "no" to the questions put in perfunctory fashi
with little discussion of the evidence. To combat this juries could
asked to begin their deliberations with a discussion of the questio

162. Heuer & Penrod, "Trial Complexity: A field investigation of its meaning a
effects," 18 Law and Human Behavior 29 (1994). See also Wiggins & Breckler, "S
cial Verdicts as Guides to Jury Decision Making," 14 Law & Psychology Review
(1990), G. T. Munsterman, P. L. Hannaford and G. M. Whitehead (eds.), Jury Tr
Innovations (1997).
163. This reform has been implemented in a number of U.S. jurisdictions: see
American Judicature Society, supra n. 70, and Ellsworth & Reifman, supra n. 14.
This has also been recommended by the New Zealand Law Reform Commission, supra
n. 19, at para. 314.
164. Young, Cameron & Tinsley, supra n. 99, at para. 7.61.
165. New Zealand Law Reform Commission, supra n. 19, at para. 318.
166. Supra n. 22, at 537-38.

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2002] MAKING JURIES ACCOUNTABLE 521

put rather than by a vote, so that an evidence-driv


vote-driven approach is taken.167
The question remains whether it is appropriate
give reasons for their decision to convict. It is one
to structure their decision making in terms of the
offence charged and any relevant defenses on which
and to indicate what issues they find proved. It is
body of lay people to agree on the reasons why the
proved. If we accept that juries should in principle
ble for such decisions, this suggests that despite th
quently given to juries that before they can convic
sure they are guilty,168 it is not enough that juro
that the defendant is guilty. They should also be ab
reasons for the conviction.169 The problem with t
prove very difficult for 12 persons drawn from all sec
munity to agree as to what these reasons should
establishes that when juries are asked to deliberate
defendant, they must not only be individually satis
dant's guilt, they must also be collectively satisfied
an extreme example used by Professor Smith, if D
obtaining ?100,000 by deception and the indictmen
rate false statements, it is enough to find D guilty
satisfy the jury as a whole as to one particular false
been made.170 But if each juror is satisfied as to a
ment from every other juror, each juror is satisfi
money by deception but it would be wrong to say t
fied because every allegation made is disbelieved by
rors. It is also clear that when the prosecution put
than one basis the jury should agree not only as to
guilty but also as to the basis on which he or she is g
however, necessary for the jury to agree collectivel

167. It has been recommended that in general juries should be


on how to structure their decision making: see Young, Camero
99, at paras. 6.41, 6.57.
168. See R. v. Kritz [1950] 1 K.B. 82 (England) approved in Walters v. The Queen
[1969] 2 A.C. 26, 30 and Ferguson v. R. [1979] 1 WLR 94. See also Briginshaw v.
Briginshaw (1938) 60 C.L.R. 336 (Aust.).
169. See Cohen, "Should a Jury Say What It Believes Or What It Accepts?," 13
Cardozo L. Rev. 465 (1991).
170. Smith, "Satisfying the Jury," Crim. L. Rev. 335 (1988).
171. See Blackstone's Criminal Practice (2001), D.15. 18. On occasions juries may
need to be given a unanimity direction (known as a Brown direction based on R. v.
Brown (1983) 79 Cr. App. R. 115), where they are told that they must be agreed as to
the proof of the ingredient which proved the offence. Difficulties as to when such a
direction should be given have arisen in homicide cases where there can be a number
of different causes of death and a number of different bases of liability. See R. v.
Giannetto [1997] 1 Cr. App. R. 1, R. v. Jones, The Times (London), February 17, 1999
and R. v. Boreham [2000] 1 All E.R. 307. For discussion see Taylor, "Jury Unanimity
in Homicide," Crim. L. Rev. 283 (2001).

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522 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

of all the items of proof that make up the evidence


In the above example, it may be that the jury is s
that D made one of the statements, but some may
evidence of witness A and others on the evidence of witness B. One of
the merits of a lay body is that it is able to bring its collective exp
ence to bear on the evidence presented in court and it is not unre
sonable that although it may reach a consensus on the issues to be
decided there may be differing views on the weight to be given to
ticular items of evidence. It is suggested that it is therefore going
far to require juries to agree on the grounds for their satisfaction
to the elements of an offence.

Of course, it may be possible to cut down on the number of juror


chosen to decide the case or to introduce decision rules allowing ver-
dicts of guilt to be decided by a majority but there is then less guara
tee that all the members of the lay tribunal who decide to convict a
reflective of the community with the consequent loss to coordinat
decision making. This suggests that in respect of the decision to con
vict as well as the decision to acquit, there remains a tension betwee
the hierarchical need for the jury to account for their decision and t
coordinate need to ensure that the decision makers reflect so far as
possible the views of the community.
As there are limits on the extent to which jurors are able to
count for decisions, we may have to accept that there is a price to
paid for coordinate decision making in terms of the accuracy of o
come in accordance with the law. It follows that it is all the more
important for the parties and the public to be satisfied that the
at least been due process in the manner in which the decisions
been reached. There are good grounds for maintaining the secr
jury deliberations in the interests of coordinate decision makin
jurors should be given as much independence as possible. But jur
nevertheless usually swear an oath to give a true verdict accordin
the evidence. Unless something is brought to the judge's atte
suggesting some malpractice or impropriety in the juryroom it
be presumed that jurors have acted in accordance with their
When, on the other hand, allegations of malpractice or improp
are made, it may be argued that the trial judge should investig
them and the traditional ban on judicial inquiry into the jury r
should be put aside.
The question then arises as to what the boundaries of suc
quiry should be. One of the fundamental responsibilities of jur
that they deliberate together in order to reach a decision. Alth
jurors do not swear to deliberate in terms, it can be argued tha
implication the oath to "give a true verdict according to the evid
binds them to do more than reach an individual view of the evidence
but to engage in the act of reaching a collective verdict, which is r

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2002] MAKING JURIES ACCOUNTABLE 523

dered possible only by the jurors participating toge


Beyond this there are certain processes of delibera
permitted under the terms of the oath. The drawing
of ouija boards are clearly outside the scope of reac
cording to the evidence. More difficulty arises whe
to intervene over allegations concerning the conten
the jury room during deliberation. If jurors are goin
about what was said in the jury room, will this not
the role we have identified for them, which is to we
on the merits very carefully and, if they believe it
in a verdict which is not in accordance with the la
distinguish here between bringing in a verdict acc
dence and bringing in a verdict according to the law
that juries are not always bound to bring in a verdic
law but it may still be argued that in their deliberat
decide on the merits of the case when they have a
with the evidence. If jurors believe that they are ju
lowing the law, they must justify their belief to e
basis of the evidence available to them. In this way
science is not defined as a verdict arrived at on the basis of some
moral belief, no matter how sincerely held; it is a verdict arrived
applying this belief to the evidence available and justifying if n
a deviation from the strict legal standard. This suggests that a
tinction can be made between jurors who base their decision on
extraneous motive unrelated to the merits of the case and juror
base their decision on the merits of the case even when in doin
they set aside the law.172 The former are acting outside the sc
what they have sworn to do whereas the latter are not. It follow
jurors are justified in complaining when their fellow jurors reso
the former conduct and judges are justified in investigating suc
gations accordingly and, if necessary, discharging jurors wh
resorting to it.
It would seem to follow that verdicts which are reached on this
basis are also impossible to sustain. We have seen that even when
the evidence does not establish that a tribunal was biased against a
defendant but is such as to raise legitimate doubts as to the imparti-
ality of the tribunal, the European Court of Human Rights has held
that the defendant has not received a fair trial.173 Rather different
considerations apply when it comes to the question whether acquit-
tals should be overturned where they have been arrived at on the
basis of prejudice, whether in favor of defendants or against wit-
nesses and victims. Most jurisdictions adhere to the principle that

172. See Zuckerman, "Law, Fact or Justice," 66 B. U.L.Rev. 487 (1986)(arguing that
the judicial system should allow scope for judgment on the merits.)
173. See supra nn. 89-91 and accompanying text.

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524 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

acquittals should not be quashed even when they


and this has been defended on grounds of double
Article does not need to consider this principle b
that some jurisdictions contemplate the quashing
these have been secured by interference with or in
ness or juror,175 and the question may be asked, a
need to be resolved here, whether acquittals shou
the basis of evidence of outright juror bias or pr
Some backing for the idea that trial judges s
when evidence of bias against victims or witnesse
to their attention may be found in recent jurispru
pean Court of Human Rights. The court has held t
Convention requires states not only to refrain fr
and unlawful taking of life but also to take approp
guard the lives of those within its jurisdiction an
states must not only provide for substantive crim
against unlawful killing but also must take steps
als whose lives are known to be at risk from the criminal acts of a
third party.176 Where a judge learns that a jury is about to acq
defendant who is charged with the attempted murder of a victi
there is strong evidence against him and evidence also that he is
likely to remain a serious risk to the victim's life, it may be asked
whether in these circumstances the judge would be required to dis-
charge the jury in order to ensure full compatibility with the Euro-
pean Convention. We need not take the hypothetical any further in
terms of asking what should be done where evidence comes to light
after an acquittal that a jury has acted perversely against the victim
and where there is evidence that the victim's life continues to be in
danger. The point for present purposes is that we should not rule
the need for judicial intervention when juries are seen to be actin
a prejudicial way against victims as well as against defendants

3. Accountability to the Parties


We have argued that there are clear limitations on the exten
which the legal system can and should require juries to account
decisions and even be held accountable for the way they reach t
decisions. A distinction can be made between jurors who conscie
tiously decide the case on the merits of the case (no matter h
wrong their decision may be in terms of the law) and jurors wh
steadfastly refuse to deliberate on the merits of the case. A case
be made for requiring judges to open up the black box of the ju

174. But see the proposals of the English Law Commission, Double Jeopardy
Prosecution Appeals, supra n. 49.
175. See supra n. 49.
176. Osman v. U.K. [1999] E.H.R.L.R. 228.

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2002] MAKING JURIES ACCOUNTABLE 525

when allegations of the latter kind are made but th


intrusion is still likely to be limited even in these
they are dependent on some complaint being made
during or after the jury's deliberations.
As there are clear limitations on the extent to w
system can make jurors accountable for their decis
cision making processes within what is still a coordi
thority, the parties and the public are likely to rem
dark as to how decisions were reached and how the
unless a softer kind of accountability be brought t
opening up more of the black box of the jury. So l
said that juries reflected community norms, there
tee that juries were socially accountable. But moder
consist of many communities and a jury picked at r
flect all these as easily as when juries are chosen fro
neous communities. Hence the greater demands for
enable both the parties and the public to be satisfied
by due process in their decision making process, un
sues they have to decide and reach a verdict that c
This suggests that more attention needs to be g
accountability toward the parties before any decisi
well as greater disclosure to the parties after the d
grounds for it. We have seen that jurors bring the
the fact situations they are asked to interpret.177
juries in modern societies to be always able to unde
ular community that a defendant and other possib
have come from and to be able thereby to understan
their actions. In order for interested parties to be
rors are truly understanding their evidence and arg
argued that there should be greater opportunitie
tween them and the jury before the jury retire to
Once the jury arrive at their decision we have se
limits to the extent to which the legal system can
tions from juries but the question remains how far
may go in interviewing jurors after the trial about
the jury deliberation room. We have seen that a nu
are commonly given for maintaining the secrecy o
coordinate model depends on jurors being given con
to bring in a verdict of their choice unfettered by o
of society and the legal system and it is commonly
tions by jurors after the trial would deter free an
between jurors. One way of safeguarding against
giving protection to jurors who fear their views bei

177. See supra n. 69 and accompanying text.


178. Supra n. 74.

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526 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

lic scrutiny would be to impose an anonymity rule on


cept where allegations of impropriety or illegality ar
There would clearly also need to be rules preventing j
erced into making revelations they did not wish to m
same token there should arguably be rules preventing
private gain on the part of jurors.179 Jurors should no
about the prospect of their individual views being mad
public, but as we have seen the jury gives its verdict
unit and it may be asked whether it harms the decisi
cess for the public to be told about what lay behind t
may be said that juries may feel inhibited about puttin
if they know that this may be given as a reason for a
on our argument while juries should continue to have t
put aside the law, this should be a conscientious dec
the merits of the case and if the prospect of revelation
for the decision serves to inhibit ill-considered nullif
something to be encouraged rather than discouraged.1
A further objection is that revelations would threat
of finality of verdicts. It is important to distinguish h
nality as far as the legal system is concerned and fina
public opinion is concerned.181 Revelations may cause
to be questioned by the public or the media but they m
allay public concern.l82 Where they serve to questio
question to be asked is whether this is not better than
a possible miscarriage of justice never being revealed.

179. Some jurisdictions such as New York and California have i


prohibiting jurors from selling their stories to the media during the
"Juror Journalism," 12 Yale L. & Policy Rev. 389 (1994).
180. Schopp argues that conscientious action requires not only th
ately acts in a manner that is consistent with one's beliefs but als
in a careful, responsible process of deliberation in making that del
132, at 2109-10.
181. For discussion of the different factors motivating the willingn
and the media to investigate alleged miscarriages of justice, see N
supra n. 48.
182. In the U.S. where the First Amendment enables the media t
explain the grounds for their verdicts, it is now common in cases
public interest for jurors to give accounts to the press as to how ver
This enables the public to be made aware of the message which th
impart by its verdict and to the cognitive processes that went int
recent San Francisco felony trial in which a jury convicted a city
certain bribery charges involving the San Francisco Housing Auth
plained their decision not to convict of all the charges on the basis t
troubled by the picture of corruption in the City but felt that the d
the leading player - they saw her as someone left "holding the ba
"criminal mastermind". See "Jury Reluctant to Brand Chief as Corrupt," San Fran-
cisco Examiner, September 28, 2000. Of course, there may be a limit to the extent to
which jury explanations may allay pubic concern. Despite the explanations by the
predominantly African American Simpson jury that they decided the case on reasona-
ble doubts about the evidence, many continued to believe the verdicts were racially
motivated. See Abramson, supra n. 4, at xi - xii.

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2002] MAKING JURIES ACCOUNTABLE 527

system responds to such revelations is another m


tems have increasingly become accustomed to grea
verdicts especially when new evidence is revealed a
distinction must again be made between conviction
A whole host of reasons tend to be given for not q
tals and in the context of jury trials we have argued that juries
should retain their freedom to set aside the law.183 It is a different
matter when it comes to convictions. It was suggested earlier th
the legal system is entitled in the absence of evidence to the cont
to presume that jurors have employed due process in reaching th
decisions. By the same token it may also be presumed that in th
absence of evidence to the contrary decisions to convict have bee
taken on reasonable grounds. If, however, as a result of juror di
sure it is revealed that this was not the case, then the question t
asked is whether the undoubted virtue of finality should stand
bar against the decision being challenged. New evidence has effec
tively come to light questioning the decision. One way of preven
this constituting new evidence would be to adopt the rule prevent
jurors admitting evidence of jury deliberations in subsequent cou
proceedings and this would certainly prevent time-consuming
hearings based on evidence of juror deliberations.8l4 But if such
dence reveals a lack of due process in reaching the decision, then
argued earlier that this should be a ground for quashing a convict
A final objection that such revelations might serve to underm
confidence in the jury system seems dubious. It is hard to predi
what extent this is likely to happen. But if we return to one of
central reasons for accountability it is that it may help to legiti
the decisions taken and the institution that takes them. If revela-
tions do undermine confidence in particular cases, then at least
may serve the purpose of exposing deficiencies in the system for
future. It is arguably better to address weaknesses in an institu
in the short term for the longer term health of the institution.l

183. Supra nn. 146-48 and accompanying text.


184. See r. 606(b) of the Fed. R. Evid., discussed supra n. 78 and accompany
text.
185. Of course, it can be dangerous to propose remedies on the basis of particular
high profile cases. But one of the effects of a more relaxed approach towards the
exposure by jurors of what has gone on in the jury room that has been evident in a
number of jurisdictions is that it will enable research to be conducted into the jury
decision making process over a number of decisions. For contrasting attitudes in the
U.S. and the U.K. towards adopting more open inquiry into jury decision making, see
Jackson & Doran, "Juries and Judges: A View from across the Atlantic," Criminal
Justice 15-16 (1997). For philosophical development of the idea that openness is a
healthier attitude to adopt if one is serious about the long term health of an institu-
tion, see Paul Chevigny, More Speech: Dialogue Rights and Modern Liberty (1988).

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528 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

V. CONCLUSION

There has been a growing pressure in all areas of public life


decision makers to be made accountable for their decisions. Account-
ability is seen as a means of enhancing the uniformity, rectitude a
legitimacy of public decision making, as well as helping to prov
due process to those affected by such decisions. With juries contin
ing to take major decisions affecting the liberty of the individual
criminal trials throughout the common law world, it is perhaps ine
table that demands are being made for greater jury accountability
This Article has analyzed these demands and made distinctions
tween different kinds of jury accountability.
It has been argued that so long as the common law jury contin
ues to derive its raison d'etre from having to operate within a coor
nate structure of authority, there will be limits to the extent to wh
juries can be made accountable in a hard sense for the decisions
which they take. Despite the demands for greater accountability t
jury still derives its essential legitimacy from its independence fr
the legal system and from its ties to the community, with the resu
that accountability mechanisms will continue to be weaker than
when decision makers are officials answerable to a hierarchy above.
This can be seen particularly in respect of decisions to acquit where it
has been argued that there is still a justifiable role within liberal de-
mocracies for nullification when juries conscientiously decide to ac-
quit a defendant on the merits of the case. There is more justification
in making juries accountable for their decisions to convict as these
decisions must be grounded in purely legal norms. It was suggested
that there was merit in requiring juries to answer specific questions
on the elements of each offence charged before a guilty verdict is ac-
cepted, although steps should be taken to encourage juries to adopt
an evidence-driven approach to the questions put rather than a
purely vote-driven approach. But it was argued that the need to en-
sure that the jury is drawn from a reasonably wide spectrum of the
community, at least in the most serious cases, requires a relatively
large number of persons with inevitable practical constraints on mak-
ing them give detailed reasons for decisions. The limitations on mak-
ing juries accountable for decisions, however, makes it all the more
important to investigate complaints about the manner in which ju-
rors are deliberating and coming to decisions. In particular it was
argued that when jurors act outside their legitimate role of discuss-
ing the merits of the case they have to decide, there is no justification
for jurors continuing to sit on the jury.
The limitations on the ways in which juries can be made account-
able in a hard sense for their decisions mean that greater emphasis
should be given to the ways in which juries may be made more ac-
countable in a softer sense. Although the common law jury retains

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20021 MAKING JURIES ACCOUNTABLE 529

its legitimacy as an institution by coming from the


is no guarantee that individual juries in individual
all aspects of the community in today's multi-cultural societies.
While the very fact that jurors came from the community may have
traditionally given jurors some social accountability, it has been ar-
gued that more transparent measures need to be considered today to
give satisfaction to the interested parties and the public that juries
are understanding the evidence and arguments of the parties and
reaching justifiable decisions. It was suggested that one way of doing
this was to make juries more cognitively accountable by developing
greater mechanisms for communication between juries and the par-
ties prior to juries deliberating and reaching a decision. Another
mechanism was to encourage greater revelations of jury deliberations
after the decision and it was argued that there was nothing sacro-
sanct about keeping the deliberations of the tribunal secret, provided
individual juror anonymity is maintained.
There may come a point when the coordinate model of authority
is no longer considered appropriate for the task of determining guilt
in common law countries. As mentioned at the beginning of this arti-
cle, common law juries operate in a variety of different political and
legal climates and the merits of coordinate decision making can vary
from one climate to another. Common law systems within the Euro-
pean Union are also facing the particular challenge of re-thinking
their procedures in the interests of mutual cooperation and con-
forming with civil law systems to the common human rights stan-
dards laid down by the European Convention and overseen by the
European Court of Human Rights.186 It would not be surprising if as
a consequence certain jurisdictions began to implant more hierarchi-
cal models of authority into their criminal processes. This need not
spell the end of the common law jury. One of the strengths of this
system has been its ability to adapt to a range of differing political
and legal circumstances. Indeed we have seen that conversely some
civil law jurisdictions have moved more in the direction of the unitary
jury modeled on the common law jury but with greater accountability
mechanisms. There have been many warnings about the dangers of
crudely transplanting reforms from one legal culture to another.187
At the same time it has been pointed out that through history there
has been considerable overlapping between English and romano-ca-
non legal thought and considerable borrowing has taken place in the
development of legal concepts and procedures, although at times na-
tional pride has meant that there has been a reluctance to openly

186. Card & Ashworth, "Criminal Law," in Law's Future(s): British Legal Develop-
ments 329 (D. Hayton ed., 2000).
187. See, e.g., Allen, "Foreword," in Doran & Jackson, supra n. 35, at xvi-xvii.

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530 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50

recognize the debts owed.188 The French after all


mon law jury for criminal cases grafting it on to
judicial system. It would be ironic if the common l
originally exported the jury system were now to
practices of the continental jury system.
This Article has argued, however, that in movi
accountable under more hierarchical models of au
lose an important strength of the traditional comm
has been its ability to bring legitimacy to the crim
by providing a community perspective into the pro
guilt. The challenge for the traditional common l
this community perspective can be retained while
done to introduce greater accountability mechanism
making process. This article has argued that while
ity mechanisms will inevitably lead to more hiera
softer mechanisms can and should be adopted whi
and interested parties a greater eye into the black
price may still be paid in terms of achieving recti
stantive criminal law but in encouraging windows
sion making process we may at least more often b
unmerited decisions before they happen and scruti
sions that do emerge are justifiable.

188. Shapiro, supra n. 53, at 247.

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