That conclusion that jurors try to reach the right decision does not mean I was not then concerned with who the jurors were. I, like other trial attorneys, was very much concerned. I had notions about who would make a good juror and a bad juror for each case, and I used peremptory challenges in the service of such notions. We operated with little information about the people being called for jury service and without jury consultants telling us who would make an ideal juror. We would learn age, race, and gender as well as any personal connection with law enforcement and crime victims. We would attempt to infer economic status from information about job, education, and residential neighborhood. We might guess ethnicity from a name. We would try to make assessments from clothing, manner of speech, and such “clues” as a carried newspaper. We would consider hesitancies in answers and eye contact. But usually all this information was only for us to categorize prospective jurors into stereotypes. And in the early days of my practice, I lived in a legal world that allowed attorneys to indulge in stereotypes. Race and gender were often the prime pigeonholes. In one trial, for example, eleven jurors had been selected, and both the prosecutor and I had remaining peremptory challenges. Whenever a black person was called for the final seat, the prosecutor challenged. I did the same whenever a white person’s name was selected. This continued until one of us exhausted the allotted peremptories. We may have believed in the power of direct and cross-examination and summations, and the importance of what the judge said, but we also believed in who the jurors were.
I and others cared about jury selection not merely because we thought that the makeup of a jury might affect their decisions, but also because we knew that what they decided could by profoundly important. I was reminded of this fact every time I saw the face of a person behind bars who had been convicted by a jury a few minutes earlier. And I will always remember the person who leapt onto a tenth-story ledge after a jury had convicted him. He lost his footing and fell to his death.
By the time I stopped trying cases on a regular basis, I had many views about the jury system. They were not all consistent. The side with the better evidence generally wins jury trials, yet the fact remains that the composition of a jury might be crucial. Jurors are swayed primarily by common sense and logic, but sometimes an emotional appeal is the better tactic. Jurors who are not smart or educated and can’t understand complex issues are able to bring their life experiences to the task. Juries are generally more to be trusted to get it right than are judges, but juries cannot be trusted in every case.
Since that time, I have gained more knowledge about juries as I did research for a book on the jury system, and this modified my views. Experience and study have led me to several conclusions about the jury system. The first conclusion may seem trite: the jury system is important. It is important not only for the litigants whose disputes juries decide, but also to a larger society influenced by these resolutions. Juries are also important because of the significant role they play in the American system of government.
The second conclusion is perhaps surprising: the present American jury system works quite well. Juries are much more rational in reaching decisions than many suppose. I have learned that too often people, including me in my early trial years, overestimate how much influence factors such as the composition of the jury and the quality of the attorneys have on the outcomes of trials. The reality is that the evidence presented to the juries is the prime determinant of a verdict, and this is the crucial reason why the system works well.
The third conclusion is that although the jury system works well, it can be made better. Since juries follow the presented evidence, the most significant way to produce better jury decisions is to improve the information that the jury gets to consider—to improve the evidence presented to the jury.