Book Review: The Jury Under Fire: Myth,Controversy,and Reform

The jury is a principal component of the American legal system, and is tasked with the responsibility of accurately understanding the law and applying it appropriately to legal cases. Jurors must utilize legal instructions given by the judge; effectively evaluate forensic, witness, and expert evidence; and render consequential verdicts and award monetary damages. The jury system ideally affords justice to litigants and—as Brian Bornstein and Edie Greene describe in their book The Jury Under Fire: Myth, Controversy, and Reform—the system is generally effective at accomplishing this task. Laypersons and media authors, however, often have different beliefs about the jury’s effectiveness based on apparent miscarriages of justice that make headlines. To address this disparity in understanding of the jury system, Bornstein and Greene use empirical literature to address 13 myths regarding juries. Each chapter additionally considers opportunities for beneficial reforms to the justice system.

The book begins with a historical review of jury trials in Chapter 1. The right to a jury trial, although not absolute, is guaranteed in the Constitution’s Sixth and Seventh Amendments. This introductory chapter also discusses common methodologies used in jury research.

Chapters 2 and 3 describe misconceptions about jury selection. Chapter 2 addresses the myth that people dread performing jury duty and should avoid it if possible. Despite some costs to potential jurors (e.g., disruption of daily routine), jurors generally express satisfaction with their service and later demonstrate greater civic engagement. Recent innovations (e.g., increasing the comfort of courtrooms) address juror satisfaction. In Chapter 3, the authors address the myth that the jury selection process can successfully discern biased jurors in the jury pool. Although explicitly biased jurors might be somewhat easier for attorneys to recognize during jury selection, the implicit biases of jurors and attorneys alike are likely to remain and influence trial outcomes. Continuing education of judges and attorneys regarding cognitive biases as well as an open-ended question format during jury selection might help reduce extralegal bias.

Chapter 4 examines the effects of jury size and decision rules. Court rulings seem to support the myth that smaller, non-unanimous juries are as effective as 12-person, unanimous juries. However, research does not support this belief. Because jury size and decision rules can influence the process and the outcomes of jury deliberations, the authors recommend larger, unanimous juries.

The myths addressed in Chapters 5 to 7 involve the role of experts in explaining relevant psychological science to the jury. Chapter 5 describes traditional safeguards and modern methods for reducing jurors’ reliance on often inaccurate eyewitness accounts. Empirical research demonstrates that jurors are largely ineffective at discriminating between accurate and inaccurate eyewitnesses on their own, but a baseline level of education can ameliorate these deficiencies. Similarly, Chapter 6 describes how jurors are largely ineffective at discriminating between true and false (e.g., coerced) confessions. Jurors tend to underestimate the likelihood that someone would confess to a crime that he or she did not commit. Reforms such as electronic recordings of interrogations can reduce the disproportionally incriminating effects of a confession. In Chapter 7, the authors support expert testimony as a method of educating jurors about the complex issues that might arise during trial (e.g., the reliability of forensic evidence). Although some legal professionals believe that jurors rely too heavily on expert testimony, empirical investigations demonstrate that skeptical jurors sometimes discount experts.

Chapters 8 to 11 discuss myths related to specific types of trials: trials with juvenile defendants, civil trials, and death penalty trials. Chapter 8 addresses the myth that jurors treat juvenile defendants fairly. The chapter reviews the history and purpose of the American juvenile justice system and juvenile judges’ authority to transfer juveniles to adult court. Research shows that juveniles charged as adults often receive punitive judgments rather than rehabilitative judgments that safeguard the community. Chapters 9 and 10 emphasize myths related to civil juries. Research debunks myths that juries award excessive and erratic compensatory and punitive damages. Instead, less than 5% of juries award over US$1 million, and a similarly small percent award punitive damages. Chapter 11 highlights the myth of juries rendering fair capital sentencing judgments. Jurors in death penalty trials often have difficulty making legally proper decisions and instead rely on extralegal factors in their decisions. The authors endorse reforms such as an empanelment of separate juries for the guilt-phase and the sentencing-phase of trial.

Chapter 12 explains how emotion can influence jurors’ decisions, especially in contentious trials (e.g., hate crimes). Jurors are sometimes statutorily permitted to rely on emotion in their decisions—as in instances of jury nullification—but emotion is otherwise an extralegal bias. Such bias might be alleviated by jury instructions.

Although the jury system has limitations, litigants would not necessarily benefit from a bench trial in which the judge renders a verdict. In Chapter 13, the authors review historical challenges to the jury system and the psychological processes that influence a defendant’s choice to select a bench trial versus a jury trial. Research demonstrates both similarities and differences in outcomes of bench trials compared with jury trials.

Chapter 14 discusses safeguards relating to jury selection procedures, jury instructions, and bifurcation that can help jurors make fair judgments. Empirical research suggests that reforms such as allowing jurors to take notes and attorneys to offer pre-deliberation arguments can promote juries’ effectiveness.

In Chapter 15, the authors conclude the book in acknowledgment of the reasons why the jury is a target for false and controversial beliefs, explicating the origins of these myths in government legislation and popular culture. This chapter additionally summarizes the recommendations and reforms proposed in the previous chapters.

This book was a delight to read. The authors are two of the world’s foremost experts in jury decision-making research. Along with numerous articles on juries (published together and separately), they together published a previous book on civil juries which was well received. The Jury Under Fire has the appropriate breadth and depth of coverage of the topic and the material is presented in a clear and even-handed manner. The authors set a clever research agenda—using research to present the “myths” of the jury system—and achieve their stated goals perfectly.

The book is readable, accessible, and relevant to a broad audience including researchers, lawyers, judges, and policy makers. One of its greatest strengths is the careful attention its authors paid to the organization of each chapter. The chapters first give the reader enough relevant historical information to understand the topics. Each chapter then discusses the statutes and court rulings applicable to the topic before providing empirical evidence to support the authors’ conclusions concerning each chapter’s central myth. Chapters conclude with examinations of potential reforms that can address their central misconceptions. Another major strength of the book is its focus on jury reform. Rather than simply describing the current state of juries and jury research, the authors effectively addressed areas for improvement and future directions for trial proceedings.

This book makes valuable and necessary contributions to academia and to society in general. It not only synthesizes current understandings of jury decision-making literature but also argues for evidence-based jury reform. Because court procedures are often based on misconceptions about juries, this book takes necessary steps toward exposing ineffective jury practices and highlighting new, effective procedures. In sum, the book offers unique insights into the process, research, and reforms of juries. As a result, it is likely to be influential and to help shape the jury system of the future.

JACQUELINE M. KIRSHENBAUM TYLER N. LIVINGSTON MONICA K. MILLER University of Nevada, Reno