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I. INTRODUCTION
Our jury system does not function very well. In civil cases, we increasingly see the phenomenon of the Robin Hood jury awarding runaway damages based upon emotion and a misguided understanding of the law. In criminal cases, juries have a disturbing tendency to accept preposterous theories advanced by defense counsel and sometimes by overzealous prosecutors. The problem is that juries no longer represent a true cross-section of the community.
Exclusion of certain groups from jury duty has been and continues to be problematic. At one time in the not-too-distant past, racial minorities and women were excluded from juries systematically. The Supreme Court's decision in Batson(1) to fix that problem was certainly correct. Today, however, we have a different problem. People who are well-educated, well-informed, and independent-minded are increasingly excluded from juries either because they refuse to serve or because they are not allowed to serve.
Recent studies show that fewer than half of Americans who are sent jury summonses actually show up at the courthouse.2 In addition, many people are excused during voir dire or turn out not to be needed.3 Consequently, eighty-five to ninety percent of the people who are summoned for jury service do not serve.4 These people who do not serve often are at least as qualified as or better qualified than those who do serve, because many of the reasons they do not serve are related to backgrounds and interests that would allow them to bring some independent thinking to their jury duty.5
Juries often reach common-sense and desirable results, but in many cases they do not. Stephen Adler's recent book, The Jury: Trial and Error in the American Courtroom,6 documents a number of jury trials and exposes the misunderstandings of the juries and the poorly-informed decisionmaking processes they employ. Based upon his experience in these cases, Adler concludes:
[S]ome jurors succumb all too easily to emotional appeals. Some are stymied by the least bit of complexity. Many filter facts through such a thick mesh of prejudice that the facts become unrecognizable. Common sense mutates into mutual delusion. And the unfortunate reality is that this isn't always an accident.7
Through the deceptive, frequently cynical process of jury selection, lawyers can and often do steer some of the least capable...