To the Editor:

In association with its "year of the jury," the American Bar Association recently released its "Principles for Juries and Jury Trials."

In light of bold, if misguided efforts by the Bush administration to reform the tort system, largely in the form of curtailing jury autonomy and authority, I had hoped that the ABA's American Jury Project would produce a creative, far-reaching set of reform proposals of its own. Alas, the result is quite disappointing in its narrow scope and timid approach.

The ABA report does offer some excellent suggestions for small procedural reforms. They include endorsing juror note-taking, allowing jurors to submit questions to witnesses, instructing jurors on the relevant law in advance of trial and allowing jurors to bring written instructions with them into deliberations.

As sensible as these procedures are (and well-supported by empirical studies), each is already gathering momentum in jurisdictions across the country, without the official ABA seal of approval. The ABA report does strongly rebuff the move to smaller juries, pointing out that they are less representative, deliberate less and are more prone to domination by strong personalities.

Rather than asking what would be the ideal jury size, however, the ABA report slavishly endorses 12-person juries, despite the fact that this size is no more than a historical accident. Why isn't 15 the right answer? Or 17? Or two separate juries of nine?

With respect to most truly controversial issues, the ABA report is either silent or endorses the status quo. The report endorses unanimous juries, despite the fact that most jurisdictions that inherited the British Common Law system (including England) abandoned it long ago. Oregon and Louisiana have had non-unanimous criminal jury trials for centuries and anarchy has not broken out in those states. Many states use non-unanimous rules in civil cases and there is no evidence that verdicts in those states are any less sensible than ones from unanimous rule states.

It is a very badly kept secret that most unanimous verdicts are not the result of unanimous consensus. In most cases, deal-making, compromise, badgering and apathy produce unanimous verdicts where no real consensus exists.

The ABA position promotes insincere juror voting, something that at least deserves a little debate. The incredible demands of unanimous verdicts also make the system critically dependant on peremptory challenges. Truly random jury selection would produce juries very unlikely to be able to agree on a verdict. Under the banner of seeking "unbiased" juries, the peremptory challenge system instead produces juries filled with ignorant people who don't have strong views about anything important. This clearly does damage to what is supposed to be one of our most hallowed democratic institutions.

With respect to juror misconduct, the ABA report endorses Federal Rule of Evidence 606(b), which allows drunk and high jurors to render verdicts but punishes a juror who looks up a word in a dictionary.

I find it astonishing that the report is completely silent about the two jury issues that have been dominating the headlines: jury sentencing in light of Blakely, Ring and Apprendi; and jury damages calculations (both compensatory and punitive) in light of the State Farm decision and the myriad efforts at tort reform across the country.

Did the ABA panel completely forget these essential tasks performed by the jury? Do the ABA panel members really have nothing to say about jury sentencing in capital cases? I find that hard to believe.

I will be delighted if jurors are allowed to take notes from now on and ask the occasional question of a witness. It is certainly noble to protect each juror's identity and to insure that jury pools are as representative as possible. I cannot help thinking, however, that the ABA missed a golden opportunity to make a real difference in the debate about jury reform in this year of the jury.

Edward P. Schwartz

Lexington

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