The Yale Law Journal


State Court Reform of the American Jury

18 Mar 2008

The American jury’s prominent place on any short list of our most sacred endowments from older Western societies has tended to obscure both its tragic fall from grace and its recent renewal at the hands of state courts.

I. The Jury Tradition

Lawyers and judges regularly remind potential jurors that they are about to participate in a legal tradition enshrined by the signing of the Magna Carta. If anything, these exhortations typically understate the antiquity of the exercise. The Athenians, for example, employed large panels of citizens as judges of law and fact during trials. Emerging from earlier Frankish legal traditions, jury trials had become common in England by the end of the twelfth century, though in a form barely recognizable to modern eyes. By the middle of the fifteenth century the English jury trial came to possess a basic form that we would recognize today.

That basic form, and its further refinements, accompanied the early English colonists to North America and took root in the colonial governments. By the start of the Revolutionary War, both civil and criminal jury trials had become an important right to citizens throughout the colonies. Indeed, among the numerous grievances against King George III listed in the Declaration of Independence was the complaint that he “deprive[ed] us, in many cases, of the benefits of Trial by Jury.”

The founding generation protected the fruits of their wartime labor by enshrining the right to a jury in the nation’s organic documents. All twelve of the Revolutionary-era state constitutions included the right to jury trial in criminal prosecutions. The Constitution of 1787 later established the federal right to trial by jury in Article III, Section 2, and the nation affirmed that right in the Sixth and Seventh Amendments. As Justice Sandra Day O’Connor once pointed out, though the Federalists and the Anti-Federalists agreed on little else,>they shared a commitment to trial by jury.

II. The Decline of the Jury

By late in the twentieth century, the jury trial had fallen on hard times. The percentage of all cases being resolved by referral to juries had been declining in both federal and state courts for decades. By the 1990s, that decline had become so dramatic that even with rising total caseloads, the actual number of trials was falling. In the quarter century from 1976 to 2002, for example, the number of civil jury trials in state courts declined by thirty-two percent.

The causes of this decline were multiple. Energetic use of mediation, arbitration, and private judging diverted many civil disputes. Federal sentencing guidelines offered such substantial incentives for defendants who cooperated with the government that plea bargains went up and trials went down.

As for the general public, the experience of participating in a trial had become a chore. Jurors frequently complained about poor treatment at the hands of court officials, the inconvenience of jury service, fear over their role as jurors, and anxiety flowing from uncertainty about the trial process. Moreover, many citizens viewed the jury as archaic, emotional, irrational, and unintelligent. The jury system became a fertile source of material for comedians and cartoonists, up to and including Homer Simpson. This scorn seemed to reach new heights, though it was hardly without precedent. Mark Twain once said that the efficiency of the jury system was marred only by “the difficulty of finding twelve men every day who don’t know anything and can’t read.”

III. State Jury Reform and Rejuvenation

Despite the ongoing flow of slams against the jury, there were some signs that the system might not be facing doom. There has remained a broad conviction among Americans that the jury system is a positive and necessary force in the quest for justice, despite its shortcomings. This high level of public support may have helped obscure the need for a thorough and broad examination of the jury trial – a good housecleaning, if you will.

The highest courts of Arizona and New York led the way in jury reform during the early 1990s. Judicial leaders in these states launched comprehensive and public examinations of a host of practices with which judges and lawyers had become all too comfortable. Breaking out of this contentment, commissions on jury reform in these states tackled a long list of deficiencies and devised solutions that were so manifestly beneficial that they commanded prompt adoption. The power of these new ideas was sufficient to overcome what Dean Roscoe Pound called the profession’s “instinct . . . to scrutinize with suspicion all projects to reform”—an instinct especially acute as respects a topic so iconic as trial by jury.

Some of these opportunities for improvement were so obvious it is hard to imagine it took us so long to address them. To take one example, juries were too white. For those who follow doctrine closely, this fact bubbled to the top of the legal and scholarly mind when the U.S. Supreme Court decided Batson v. Kentucky. In Batson, the Court overruled Swain v. Alabama to hold that a criminal defendant could challenge the racially discriminatory use of peremptory strikes from jury panels without needing to prove a general pattern of discrimination in the jurisdiction. After Batson, a predictable stream of decisions followed, eventually culminating in a holding that a peremptory strike even by a criminal defendant’s publicly appointed lawyer constituted “state action” subject to the Fourteenth Amendment.

Still, all this decisional law did little to put more minority citizens in the pool of potential jurors. State and federal courts had long used voter registration rolls as the source of names for the pool, and these rolls became progressively less effective at summoning a respectable cross-section of the community. Jury reformers developed ways of assuring a more representative selection, such as adding licensed drivers, utility customers, welfare recipients, and the like to the list of potential jurors. For example, Indiana devised a high-tech merger that did not use voter rolls at all. A combination of driver’s licenses, identification cards, and income tax data produced a pool of potential jurors matching with astonishing precision the census estimates of the number of residents.

IV. Conclusion: State Courts Lead the Way

A few more illustrations will demonstrate the breadth of the modern reforms. Over time, legislatures had exempted whole classes of citizens from jury service—ranging from dentists to over-the-road truckers. Reformers waged war against these exemptions, and courts and legislatures eventually began to eliminate most of them.

The trial processes we insiders developed treated jurors like children—by prohibiting note-taking, banning pre-submission discussions, and barring questions to witnesses, to name a few. The reformers abolished these roadblocks to sensible decision making.

Mistrials resulting from jury deadlock cost the nation’s system of justice substantial time and money. Traditionally, when a court received a communication from jurors that deliberations had reached an impasse, the judge called them back into the courtroom, confirmed the impasse, and declared a mistrial. Arizona developed a procedure, which has proven popular elsewhere, whereby the judge calls the jury back and asks whether the lawyers or the court can be of assistance by addressing questions on issues that divide the panel. The court may then supervise further proceedings, such as giving additional jury instructions, supplemental closing arguments, or the submission of additional evidence. The result is far fewer mistrials, at a savings to litigants and the public.

The leadership of Arizona and New York prompted jury reform initiatives in more than half of the states, many of which have received assistance from the Center for Jury Studies at the National Center for State Courts. This wave of reform, very well received by the press, has produced multiple encouraging by-products, including a higher response rate by citizens who are summoned to jury service.

That these reforms should first take root in America’s state courts, difficult as the path has been, is altogether natural. State courts continue to handle ninety-eight percent of all litigation in the country. State reforms have provided a solid base for reformation of jury trials conducted in the U.S. district courts, an effort begun only recently.

Could there be a more important mission than to burnish anew the crown jewel of America’s legal system?

Hon. Randall T. Shepard is Chief Justice of the Indiana Supreme Court and past president of the Conference of Chief Justices. He is currently Visiting Lecturer at the Yale Law School.

Preferred Citation: Randall T. Shepard, State Court Reform of the American Jury, 117 Yale L.J. Pocket Part 166 (2008),

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