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American Journal of Comparative Law
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JOHN D. JACKSON
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
477
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478 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
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
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
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
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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2002] MAKING JURIES ACCOUNTABLE 483
II. ACCOUNTABILITY
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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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
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
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
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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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
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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
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2002] MAKING JURIES ACCOUNTABLE 493
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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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
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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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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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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
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
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504 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
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2002] MAKING JURIES ACCOUNTABLE 505
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506 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
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
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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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
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
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
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512 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
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
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514 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
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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-
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20021 MAKING JURIES ACCOUNTABLE 517
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2002] MAKING JURIES ACCOUNTABLE 519
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520 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
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
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2002] MAKING JURIES ACCOUNTABLE 523
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
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
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2002] MAKING JURIES ACCOUNTABLE 527
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528 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 50
V. CONCLUSION
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20021 MAKING JURIES ACCOUNTABLE 529
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
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