Utter the Word "Democratic": A Review of Beyond a Reasonable Doubt: Inside the American Jury System

"Members of the jury, have you reached a verdict?" Thanks to Perry Mason, Witness for the Prosecution, and other popular works of fiction, most of us are familiar with the drama that these words represent. But, thanks to the generally abysmal state of nonprofessional legal education in this country, too few American citizens are aware of, and thus equipped to defend, the essential role played by the jury trial in the American system of justice. Melvyn Bernard Zerman's well-written and informative Beyond a Reasonable Doubt: Inside the American Jury System (New York: Thomas Y. Crowell, 1981) is intended to be a restorative for this condition of the body politic.

Since Adam and Eve were tried and exiled, techniques for deciding guilt or innocence and the truth of other disputed matters have been varied. For example, in the English tradition, from which the American legal system principally developed, three kinds of trials existed in addition to trial by jury: trial by ordeal (fire-ordeal for the upper classes; water-ordeal for the commoners); trial by the "corsned," or morsel of execration (the suspected wrongdoer's guilt was established if he choked and died on a sizable piece of food); and trial by battel (combat).1 In these three forms of trial, where acquittal was dependent on divine intervention (or human collusion), the likelihood of being found innocent was probably even lower than the likelihood of winning the New York State Lotto jackpot. It is therefore not surprising that trial by jury came to be appreciated as affording one a fairer chance of acquittal.

Beyond this, trial by a jury of one's peers is valued in this country as the surest safeguard against arbitrary rule by government. Among the inequities complained of in the American Declaration of Independence was the King's "depriving us in many cases, of the benefits of Trial by Jury," and of his "transporting us beyond Seas to be tried for pretended offenses." As a result, our federal Constitution and Bill of Rights guarantee us the right to a trial by a jury of our peers. In fact, the jury trial is held to be so essential to the American system of justice that the United States Supreme Court has indicated that jury service, like military service, can be required of citizens without violating the Thirteenth Amendment's prohibition against involuntary servitude.

In addition to its importance for the accused and for American society in general, the jury trial has multidimensional meaning for the individual juror. After many conversations with jurors over the years, I have discovered that, despite the bothersome and unglamorous aspects of jury service, jurors have found it to be a vicarious, sacred, psychologically important, and social experience.

The vicarious nature of jury service derives from the fact that jurors are called upon to judge others' actions. It is a vicarious experience to the extent that a juror is able to step into the shoes of the defendant—and typically he/she is more able to do so than the judge, who is usually of a different economic and educational level than the defendant.

Participating in a jury trial can also be a "sacred" experience in the sense that it takes one out of everyday life and puts one into a formal, ritualized setting. The court is often a physically awesome place, where specialized legal language is used. Witnesses take an oath on the Bible before testifying. Jurors are admonished not to discuss the trial's happenings with anyone. If sequestered, they are removed from the familiar elements of their life, and are charged with a role that was formerly divine—deciding the guilt or innocence of the accused.

Jury service commonly becomes a psychologically important experience as well. For example, taking part injury deliberations has been viewed as an opportunity to test one's mettle. Unhappy with their personal performance during jury deliberations, former jurors have been known to look forward to a second summons to jury service as a second chance to prove their ability to stand up...