Making Up Our Minds About Juries

The Nacchio case illustrates, more through careful examination than anything exceptional about the case itself or the rulings made in it, how tight a leash we keep jurors on in the modern court system.

Jurors are intentionally kept ignorant of the larger context that surrounds the charges they are evaluating, are generally kept intentionally ignorant about the sentences that are likely to flow from their decisions, in federal court generally cannot ask questions or take notes, and are sometimes (like today) even prohibited from examining up close after the fact exhibits that it was O.K. for attorneys to present to them during the trial process.

They are chosen for their lack of knowledge about the case. Curious minds who read papers and follow up stories on the internet need not apply. Beyond that, juror selection is vodoo psychology.

The Nacchio case was a criminal case, but in civil cases, where they are often called upon to assess damage amounts for punitive damages or emotional distress, they are given no meaningful guidance in the process of choosing a number, and generally aren't told about the statutory constraints that will be applied to their determination after the fact.

It is hard to reconcile this primative institution of popular democracy with such tight constraints. At some point, over constraining the system so that it is very difficult to do it right, becomes more unpredictable than less constrained, but attainable standards. Why should jurors have to make calls in a context that no lawyer would tolerate? Has what is legally relevant grown so divorced from what matters to the average juror?

I can't help but wonder if the increasingly constrained world of the juror is helping to drive the powerful long term trend towards fewer jury trials. Increasingly, people prefer to have their case heard by a judge who knows much better what is really going on, than to have their case heard by a jury that must make decisions in an odd vacuum.