Gov 1335: M, W 10 -11 am, Holden Chapel
Course Description The jury has been described as one of the last bastions of pure participatory democracy in this country. And yet, many cling to the notion that juries are in the business of determining fact and nothing more. Is it possible to reconcile these seemingly inconsistent conceptions of the jury? In this class, we will try to sort out these and other fundamental questions about the operation of the U.S. jury system. Here, we focus our attention on the criminal jury. We do so for two main reasons. First, several prominent criminal trials have received much attention recently, focusing public scrutiny on the criminal jury process like at no other time in our nation's history. Second, the importance of the issues we discuss are magnified in the context of the criminal trial, where the issues raised are likely to incite strong passions and the stakes can be as dramatic as life and death. While recent trials have served to inform the public about how jury trials actually work, several features remain a mystery to most citizens. We address within this course all facets of the criminal jury trial, from the creation of jury lists from which potential jurors are chosen, to the production of a final verdict by the jury that hears the case. Along the way, we will visit such issues as the exercise of peremptory challenges, what is required by the "beyond a reasonable doubt" standard, and how deliberation can be affected by the rules governing how the jury may reach a verdict. Throughout this journey into the inner workings of the jury, one question will haunt us: "What exactly is the responsibility of a juror?" While we may not have a definitive answer to this query by the end of the term, we should all be ina much better position to understand what factors must enter into any answer we might offer. You might think you understand how a jury works now; but, I promise that you will learn at least a few things in this course that will surprise you, perhaps anger you, and certainly get you thinking. I will be lecturing twice weekly, for approximately 50 minutes. There will also be weekly section meetings that are mandatory. While it is useful to discuss difficult questions facing juries in the abstract, I believe that the point will be driven home more forcefully if the students must wrestle with some of these issues themselves. Therefore, during the term, several of the section meetings will be devoted to "mock juries." That is, the students will be required to deliberate on an actual case, as a real jury would, and attempt to render a verdict. All rules that govern jury decision-making will apply here, too. In particular, students are not allowed to discuss the cases among themselves prior to entering the jury room.* You will all be on the honor system, but if anyone is found to have violated the rules, she will be "dismissed" from the jury. This is pretty much the only way to lose points for these section meetings. Beyond my request that you follow the rules (which should be enough) you will gain much more from the experience if you treat it as much like a real jury deliberation as possible. Assignments In addition to attendance at lectures and sections, there will be several assignments throughout the term. Each week in which there is no deliberation exercise, there will be discussion questions for section. Each student will be required to turn in written answers to these questions. All in all, this will require about 5 pages from you for each set of questions. There will be one longer paper due during the term. I will explain the paper assignment to you in depth as the term unfolds, but it will involve your exploring an actual case in depth and identifying the ways in which the final outcome was shaped by the issues we discuss in class. There will be an in-class midterm exam on March 21st, and a standard 3 hour final on May 17th. Both will be closed book essay exams. The midterm exam will count for 20% of your grade, the final 35%, the paper 25%, and the weekly written assignments and class participation will count for the remaining 20%. Top There are several assigned texts for the course. All of them are required. In addition, there is a packet of reading materials, including several journal articles, and some supplementary materials available from Gnomon Copy on Massachusetts Avenue in Harvard Square. I have created a page of links to all of the cases used in this course, so that you can read them online and download and print them at your convenience. Assigned Texts: Abramson, Jeffrey. We, the Jury: The Jury System and the Ideal of Democracy. (2nd ed.) Harvard University Press, 2000. (Available at the Coop) Ehrenfreund, Norbert and Lawrence Treat. You're the Jury. Owl Books, 1992 (Available at the Coop). Hans, Valerie, and Neil Vidmar. Judging the Jury. Plenum Press, 1986. (Out of Print. Available from Gnomon Copy) Williams, Mary, ed. The Jury System. Greenhaven Press, 1997. (Out of Print. Available on Course Website). Top Introduction to the Democratic Jury Wednesday, January 31 Introductory Remarks. No Reading. Monday, February 5 A Whirlwind Tour Through the U.S. Jury Trial. Read the Introductions to You're the Jury , Judging the Jury, and We, The Jury, and Chapters 1 - 3 of The Jury System. Wednesday, February 7 The Historical Antecedents to the Modern Jury Trial. Read Chapter 1 of We, The Jury, Chapter 2 of Judging the Jury, and Blackstone, "On the Trial by Jury." Jury Nullification Monday, February 12 The Colonial Experience. Read Chapter 2 of We, The Jury, Chapter 3 of Judging the Jury, and Toqueville "The Jury in the United States," from Democracy in America (We will discuss the Penn and Zenger cases.) Wednesday, February 14 The Bifurcation of Responsibility. Read Chapter 10 of Judging the Jury, Chapters 8 and 9 of The Jury System, Schwartz and Schwartz, "And So Say Some of UsK," pp. 1-7, and Sparf and Hansen v. United States (We will also discuss the fugitive slave cases.) Monday, February 19 Presidents Day -- No Class. Wednesday, February 21 Modern Day Jury Nullification. Read Portman, "Three Strikes -- The Second Inning," Butler, "Racially Based Jury Nullification: Case-in-Chief" (plus Rebuttals A, B, and C), Chapters 10 and 11 of The Jury System, and "America in Black and White: Race and the Criminal Justice System (Nightline)." Selecting the Jury Top The Jury Pool. Read pages 97-131 of We, The Jury, Chapter 4 of Judging the Jury, King and Munsterman, "Stratified Juror Selection: Cross-Section by Design," and Strauder v. West Virginia. Wednesday, February 28 Challenges for Cause. Read Chapters 5 and 6 of Judging the Jury. Monday, March 5 Peremptory Challenges. Read pages 131-141 of We, The Jury, Brams and Davis, "A Game Theory Approach to Jury Selection," Friedman, "An Asymmetrical Approach to the Problems of Peremptories," and Helland, Light, and Richards, "An Asymmetrical Approach to the Problems of Peremptories: A Rebuttal." Wednesday, March 7 Challenges based on Race, Gender, and Ethnicity. Read Chapter 4 of We, The Jury, Swain v. Alabama, Batson v. Kentucky and J.E.B. v. Alabama, and Marder, "Beyond Gender: Peremptory Challenges and the Roles of the Jury." Monday, March 12 The Case for Abolishing Peremptory Challenges. Read the Conclusion to We, The Jury, Chapters 6 and 7 of The Jury System, Schwartz and Schwartz, "The Challenge of Peremptory Challenges." The Jury in Capital Cases Wednesday, March 14 The Special Case of Capital Punishment. Read Chapter 6 of We, the Jury, Chapter 14 of Judging the Jury, Schwartz and Schwartz, "Deciding Who Decides Who Dies," pp. 113-135. Witherspoon v. Illinois, Wainwright v. Wit, "State v. Andrews" in You're the Jury, Bowers, The Capital Jury: Is it tilted toward death?" and Wasleff, "Lockhart v. McRee: Death Qualification as a Determinant...," pp. 1075-1088. Monday March 19 Problems of the Death Qualified Jury. Read Lockhart v. McRee, Schwartz and Schwartz, "Deciding Who Decides Who Dies," pp. 135-147, and Wasleff, "Lockhart v. McRee: death Qualification as a Determinant...," pp. 1088-1113. Wednesday, March 21 Midterm Exam. Jury Deliberation Monday, April 2 Jury Instructions, Note taking, and Jury Questions. Read Diamond and Levi, "Improving Decisions on Death by Revising and Testing Jury Instructions," pages 120 - 127 of Judging the Jury, Amar and Amar, "Unlocking the Jury Box," Dann and Logan, "Jury Reform: The Arizona Experience," Heuer and Penrod, "Increasing Juror Participation in Trials through Note Taking and Question Asking," and The Model Jury Instructions. Wednesday, April 4 Evaluating Evidence and Defining "Beyond a Reasonable Doubt." Horowitz and Kirkpatrick, "A Concept in Search of a Definition...," Simon and Mahan, "Quantifying Burdens of Proof," and Pennington and Hastie, "Juror Decision-making Models: The Generalization Gap." Monday, April 9 Models of Jury Deliberations. Read Chapters 7 and 8 of Judging the Jury, and MacCoun, "Experimental Research on Jury Decision-Making." Wednesday, April 11 Non-unanimous Verdicts. Read Apodacca v. Oregon, Chapters 8 and 9 of Judging the Jury, Nemeth "Interactions Between Jurors as a Function of Majority vs. Unanimity Decision Rules," and Zeisler, "Jury Verdicts by Majority." Monday, April 16 When Deliberation Fails: Compromise, Bullying, and Hung Juries. Read Hacker, "Twelve Angry Persons," Gates, "Marketing Justice," Rosen, "One Angry Woman," Chapter 11 of Judging the Jury, Schwartz and Schwartz, "And So Say Some of UsK," pp. 7-16, Wednesday, April 18 A Comparative Perspective. Read Longbein, "Mixed Court and Jury Court." An Immodest Proposal: Simple Majority Verdicts Top Simple Majority Rule: The Only Fair Way. Read pages 179-191 of We, The Jury, Lesser, "Jury Reform and the Rule of Unanimity," Primus, "When Democracy is not Self-Government: Toward a Defense of the Unanimity Rule for Criminal Juries," and Schwartz and Schwartz, "And So Say Some of UsK," pp. 16-29. Wednesday, April 25 Enhancing Deliberation through Majority Rule? Read pages 191-196 of We, The Jury, Chapters 4 and 5 of The Jury System, and Schwartz and Schwartz, "And So Say Some of UsK," pp. 29-34. Monday, April 30 Jury Error, Reasonable Doubt, and the Deicision Rule. Read Johnson v. Louisiana, .pages 196-205 of We, The Jury, and Schwartz and Schwartz, "And So Say Some of UsK," pp. 34-42. Wednesday, May 2 Concluding Remarks. Read Chapter 15 of Judging the Jury.
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