Commentary on Valerie P. Hans’s Presidential Address: Can Juries Be Lost in Translation?

Amidst all the excitement that a focus on juries generates in me, and despite the admiration I feel for Professor Hans and other colleagues who have given significant time and energy to cross-national work, Valerie Hans' address also provokes in me a keen awareness of the current limits of the literature on juries. The literature has quite a bit of research on the "branches" associated with juries: the way juries' decisions agree (or not) with others decision makers (Eisenberg et al. 2005; Kalven and Zeisel 1966) or with reason (Vidmar 1995); narrative decision-making strategies that jurors use (Pennington and Hastie 1986), the link between juries and other civic participation (e.g., Gastil et al. 2008; Musick et al. 2015), group decision making dynamics and social influence (e.g., York Cornwell and Hans 2011; Sommers 2006), racial biases in jury processes (Fukurai, Butler, and Krooth 1993; Clair and Winter 2016), and political theory surrounding deliberation effects (e.g., Abramson, 1994; Gastil et al. 2008).However, Professor Hans's essay reminded me that scholars seem less likely to talk about the tree itself. That is, jury scholars seem strikingly less clear about a basic question: what makes a jury a "jury"? Are some features of a jury necessary in order to call it a "jury," and when has a body been altered or "translated" so much that its core functions and capabilities threaten to be lost in the process? I am no expert in international research, and I have borrowed liberally from those who have meditated on translating juries or have theorized about them (e.g., Abramson 1994; Burns 1995, 2011; Lempert 1992, 2007; Thaman 2007). I use this essay for thinking about the "juryness" of a decision making body and consider which features of a jury might be associated with which effects. I consider specifically questions of how much power the body enjoys, its independence from legal experts, and its deliberative practices. In doing this, I frequently reference the U.S. jury system but do not intend to imply that it is the "right" type of jury (although I admit my bias). Likely because the United States seems keen on having other countries adopt our institutions rather than the other way around, and likely because we export movies that sometimes feature our legal system, the common law/U.S. form of the jury is familiar globally and therefore serves as a convenient anchor to my discussion.What is a "Jury"?PowerLempert (2007) notes that one can construct a typology of different forms of lay participation (see also Jackson and Kovalev 2007), and his first dimension of stratification across systems concerns power. On this score, the American jury is empowered. Unlike England, the jury has constitutional protection as a potential decision maker in a broad range of cases, both criminal and civil (given the decline in trials that Galanter 2004, documents, my use of the word "potential" is intentional here). Significantly, in criminal cases, the verdict is final if it is an acquittal. This is true even if the acquittal is incorrect as a matter of law. Despite the fact that jury nullification occurs rarely in practice, political theorists (e.g., Abramson 1994) recognize that the jury's power over acquittals is crucial and uniquely signifies its authority: jurors can acquit for no reason or any reason, and as a general rule, they cannot be punished for nullifying the law.1As Professor Hans suggests, there are many ways to tinker with a jury's power. Its powers can be amended through legislative action when the jury does not have constitutional protection. A jury may be relegated to deciding only a society's most serious felony crimes rather than a broader range of cases. Verdicts can be ignored as merely advisory or easily overturned, including through appeals of acquittals. In some systems, through instructions and a long series of questions on verdict forms, legal experts may narrow the choices a jury can make. …