Peter Pringle's America: Twelve fools - that will do

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The Independent Online
THE OJ SIMPSON trial, starting a week from today, will turn not on a question of evidence, but on the importance of ignorance. Both sides will try to find 12 people who don't know the gory details that have had more Americans glued to their televisions than for Haiti.

The quest for a dozen people who have been either in the wilderness or in a coma for three months is like hunting for the spotted owl in a redwood forest. Nevertheless hundreds, perhaps even a thousand people, will pass through the Los Angeles courtroom as potential jurors. Most will be rejected in a process that could take weeks. Fees for Mr Simpson's jury selection specialists will exceed dollars 100,000. The cost to the government will be many times that. Each potential juror will have to fill in an extremely lengthy questionnaire from the defence. In the end, Mr Simpson's ever-expanding team will almost certainly know more about the juror than the juror knows about Mr Simpson.

Jury reform is slow in coming, however. Americans cling to the jury system as one of the basic rights and burdens of citizenship. Other nations have been more sceptical. Most of Europe relies on small panels of lay judges. India inherited the jury system but abandoned it in 1961, and it has been slowly phased out even in Britain, where today only 5 per cent of criminal trials are now decided by juries.

To Americans, the system is an essential part of their democracy. Every person accused of a crime has the right to a trial 'by an impartial jury'. But the standard called for is impartiality, not ignorance. Mark Twain recognised the problem with pre-emptory jury challenges in his travelogue, Roughing It. Challenges, he complained, insured the swearing in of 'juries composed of fools and rascals, because the system excludes honest men and men of brains'.

The American system has been vigorously examined in an excellent new book, The Jury by Stephen Adler, a journalist who writes about legal affairs for the Wall Street Journal. His evidence reinforces the feeling that, as practised, the American system of justice cannot be sensibly just - that juries are sometimes capricious, often illogical and in many cases plainly wrong.

The problem was exacerbated with the launch of the 'trial consulting' industry in the 1970s by bright young social scientists eager to help defend anti-Vietnam war activists. Critics like Adler now contend that the extensive questioning of juries actually poses a more serious threat to the fairness of the verdict than exposure to media coverage. Adler shows how unrepresentative juries have become as trials become longer and more complicated.

Two other trends besides jury selection affect the issue. Over time, the jury pool has become extraordinarily small because of the ways now available to avoid the duty. Only about 45 per cent of those who are sent jury notices actually appear in court. In big cities the percentage of citizens participating is even lower.

Nationally, about two-thirds of those who do respond are ultimately excused service because of work needs, family problems or illnesses and because they are rejected through lawyers' challenges. In New York state, for example, an increasing number of professions have lobbied to be exempt. They include lawyers, doctors, clergy, dentists, pharmacists, psychologists, Christian Science practitioners, nurses, embalmers, police and prison officers, firefighters, sole business proprietors and licensed physical therapists. This absurdly long list automatically limits the jury pool to people who aren't professionals or who aren't busy. If he is lucky, a judge can round up a full contingent of intelligent retirees to decide his case.

In Los Angeles, about a quarter of the jury summonses are never delivered, another quarter are ignored and between 35 and 40 per cent are excused. The result is that only about 10 to 15 per cent of those summoned ever appear on a jury.

The second issue involves rules for the jury once it is selected. As trials become much more complicated, and the ability of highly-paid lawyers to manipulate juries grows, juries need help - better directions from the judge and the ability to ask questions of witnesses through the judge.

They also need to be allowed to take notes. The no-notes rule stems from the days when it seemed necessary to protect illiterate jurists; the one who could write would have a greater influence over the one who could not. Although today literacy is not the problem it once was, most juries are still not allowed to take notes.

If Americans want to keep the jury system, jury duty should be regarded for the most part as a non-negotiable debt to the community, like military service used to be. And as such it should be upgraded. Adler suggests jurors should be paid more, should be able to ask questions through the judge, should be treated more humanely by court officials, and be given clearer instructions.

The idea that 'ignoramuses alone could mete out unsullied justice', which was another of Mark Twain's 19th-century observations on the system, was skewed in those days and is even more cock-eyed today.