Better Juries Mean Better Justice: Our Duty to Protect the American Jury System

by Ron Ward, WSBA President

One of the most unfortunate contemporary phenomena in the administration of the law has been the apparent growing aversion by citizens to jury service. Courts around the country report serious problems with low response rates to jury summonses. This is an ominous development for our justice system, and it constitutes something of an irony. A new public opinion poll (www.abanews.org/releases/juryreport.pdf) recently released by the American Bar Association (ABA) reveals that Americans have a profound belief and trust in the jury system, and dispels the popular notion that the citizenry consider jury duty to be a burden to be avoided.

Three-quarters (75 percent) of those polled rejected the assertion that jury duty is a burden to be avoided. Instead, the poll revealed that Americans strongly believe that jury service is important even if it seems inconvenient — a belief held even more strongly by those who have previously been called to jury duty. And even beyond "important," 58 percent consider jury duty a privilege and a responsibility they look forward to fulfilling. Moreover, a large majority of Americans — 75 percent — would want a jury, rather than a judge, to decide their case if they were ever a participant in a trial.

Robert Grey, the current president of the ABA, has made the American jury system the central thrust of his tenure. It is a theme we would do well to adopt here in Washington state.

The American jury is a cornerstone of democracy. It is a fundamental part of our system and our government. It is the best adjudicative system in the world. Juries evolved as impartial arbiters of our disputes and as our alternative to dueling. The system is one of the most tested, tried, and true mechanisms we have in democracy — for every issue from determining the appropriate measure of damages in a civil action, to matters of life and death in a criminal case. Actions of juries have resulted in safer products, reductions in pollution, and better medical management. We properly and appropriately entrust juries with responsibilities of this gravity, and the jury system has stood this country in splendid stead since its inception. Serving on a jury is the closest active relationship to government that most people experience. Jury service is one of the highest callings of a citizen — yet the sheer inconvenience and incredible lack of amenities involved with serving cause people to want to get out of their service. We must change that.

The Legal Profession as the Jury's Advocate

The legal profession must be the jury's advocate and lead on this issue. We are in an era of jury demonizing flowing from many quarters. A multitude of special interests, both national and local, has coalesced in a systematic program to criticize and tear the jury system down. We entrust a group of 12 lay persons with responsibility for making the ultimate determination of life and death in a criminal matter, and yet it is asserted that these same 12 people are incapable of arriving at a sound decision with regard to what is the appropriate measure of damages in a civil injury or negligence cause of action. That's not exactly logical to a profession that prides itself on its logic. We need to meet this unwarranted criticism by taking overt steps to celebrate the institution and to build it up. The central message we must send is that better juries mean better justice. Serving on a jury is an honor and every citizen's responsibility. However, the needs of jurors must be met, and their work deserves the same respect as that of judges and lawyers.

Creating the Proper Environment

In meeting the needs of persons who serve as jurors, we must create the proper environment. Robert Grey has stated: "If we are to sustain Americans' respect for the jury system, the legal profession must take steps to move the jury experience into the 21st century." We need to educate employers on the importance of making jury service possible. We must provide parking spaces, business centers, childcare centers, and, most importantly, appropriate jury fee compensation. Jury fees have not essentially changed since Eisenhower was president in the 1950s. For jury service — one of the highest callings in our system — virtually all counties pay a juror fee of only $10 per day. In comparison, poll watchers in many counties are paid the hourly minimum wage. This can work out to $60-75 per day. Jury fees are a pittance in comparison — equivalent to financial cruel and unusual punishment. For many people, jury service is something they simply cannot afford to do without real and substantial hardship. Jury fees must be increased.

Providing the Proper Tools for Effective Jury Service

Jurors must have the same opportunity, tools, and participation in the process that advocates do. Jurors do their best work when they are able to ask questions, take notes, examine documents, and review evidence and testimony before making decisions. Many Washington courtrooms have adopted these tools, and the justice system has been the positive beneficiary. These measures need to be standardized and formalized in the Washington court system. Washington Courts has an informative and inspiring website about jury duty at www.courts.wa.gov/newsinfo/resources that would benefit any citizen who has been summoned for jury service.

Recent Legislative Activity in Washington State

In the most recent session of the Washington Legislature, two bills were introduced in the 2004 regular session. The bills sought to reduce the burdens of jury service and increase participation in the jury system. Both amended RCW 2.36.010 to address length and terms of jury service; postponement of participation and excuses from service; and creation of a lengthy-trial fund with a $20 civil filing fee surcharge to pay for it — with exemptions for pro se litigants, government lawyers, certain government benefits cases, and child-custody and support cases. The bills provided that in trials of more than 10 days' duration, jurors might apply for reimbursement of lost wages of up to $300 per day. Employers were prohibited from requiring employees to use sick or vacation leave for time spent in jury service. The bills were controversial, particularly with regard to the funding considerations, and they died. The current official interim (between sessions) legislative work plan doesn't list the jury bill. There do not, at this time, appear to be any plans to commence committee work or reintroduce the bills in the next session. Arizona enacted a similar version of this bill in 2002 with the support of the judiciary.

What We Can Do

The legal profession in Washington might explore some of the following possible initiatives: 1) undertake a public advocacy campaign for the jury system; 2) make Law Day 2005 "A Celebration of the Jury System"; 3) make best practices, research data, surveys, etc., on the jury system more easily available; 4) create a forum for judges from across the state to easily share experiences and attitudes on jury issues; 5) speak to judges and court administration groups around the state on the issues; 6) support lobbying and advocacy for legislation needed to enhance the jury system; 7) participate in the development of a turn-key education curriculum on the jury system, mock trials for students to learn about the jury system, and programs to bring students into the courtroom; and 8) participate in programs to educate employers and business leaders about the importance of the jury system and their support for jury service.

Thomas Jefferson said: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."1 Juries are the foundation that buttresses and sustains the importance of the rule of law in a democratic society. We must do everything we can to preserve and enhance the institution for our generations to come.

The question is not whether we can; it is whether we will. We can and we will, because, working together, there is nothing we cannot change for the better.

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Ron Ward may be reached at rrw@admiralty.com or 206-624-8844.

NOTES
1 Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269.

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