Unreliable, inefficient or inoperative altogether. Those are words that longtime trial consultant David Tunno uses to describe the jury system in the United States.

Tunno’s book Fixing the Engine of Justice, Diagnosis and Repair of Our Jury System gives his take on the problems and solutions for the jury system.

According to Tunno, the major problems with the jury system include:

  1. under representation of the community in jury pools because most potential jurors don’t show up or are excused.
  2. as a result of #1, juries are primarily composed of government workers (because they can serve while getting full pay from their job), retirees and the unemployed, but almost no other professions.
  3. incompetent jurors who disregard important evidence because they don’t understand it.
  4. jurors make up facts or use their life experiences to supplant case facts.
  5. bias and misconduct by some jurors.
  6. jurors create their own burden of proof.
  7. jury nullification (knowingly rejecting the evidence or refusing to apply the law).

Tunno’s proposed solutions include:

  1. expanding the jury pool by enacting a jury service insurance program that pays all jurors their normal pay to serve.
  2. conducting pre-edited video trials that could be done at night.
  3. testing of prospective jurors for their capacities to comprehend and reason.
  4. competency levels for jurors where more competent jurors serve in complicated cases.
  5. allowing juror questions during trial.
  6. simplify jury instructions (“the arrogance of the courts in persisting with this practice [complex instructions delivered at the close of evidence] is counterproductive to the goal of justice, as well as indefensible and baffling”).
  7. 3 judge panels decide bench trials.
  8. court appointed experts.

My Take:

I recommend Tunno’s book to all trial attorneys and judges.

I am a proponent of jury reforms. I’ve previously posted about jury reforms here, here, and here.

I became a supporter of jury reforms after substantially increasing my use of focus groups several years ago. The recurring issues I saw were two of the problems that Tunno notes: jurors making up facts or using their life experiences to supplant case facts and bias playing a role in verdicts.

Trial attorneys–myself included–have a tendency to assume that the jury properly reached its verdict in cases we win and went astray somewhere in cases we lose. But we really don’t know–we don’t see the jury deliberate.

There is a lot more to be learned about jury decision making in focus groups than there is in actual trials. As Tunno notes, “there is no reason to believe that the actual trial causes jurors to behave altogether differently than they do in research studies.”

Many of Tunno’s proposed solutions are outside the box. But many of them sound pretty good to me.

At this point I would be happy to see the legal industry–including the judiciary–admit that there are issues with the system that should be addressed. Maybe we can’t fix everything. But any improvement in the system is better than none. Why not at least start exploring the issue of whether we can improve the system?