With a diverse civil society, it follows that the U.S. has a range of perspectives and biases. Indeed, we've seen how the courts attempt to regulate the use of peremptory strikes (e.g., Batson) as past litigators have attempted to weaponize such biases in the jury pool. That being said, I'm curious as to whether there is an objective sense of justice given the nation's diversity, and is it possible--or even wanted--for us to develop a standardized view of it.
How does a singular "we" the people account for the diversity of cultures, races, ethnicities, rituals, etc. that individual members carry? How does this amalgamation of ideas, cultures, values, and rituals result in justice for individuals who have a different identity from "We" the people (jury)?
I would argue that the notion of a fair trial has become more just as more people are included in WE the people. Though I am not sure how you might measure positive or negative changes outside a potential qualitative study of sorts.
Why did the ratifiers place criminal and civil trials on equal footing in the Constitution? Did they prioritize both fact-finding and the popular/democratic administration of justice equally? Or does this have greater implications for - as prof nesson put it - the rise of capitalism and the infection of the values of industrial capitalism into a supposedly equal and fair system of justice? Was that accidental or was it the point?
1. Is there a connection between the discussion about whether arraignments favor the prosecution/defense and the discussion about who/what comprises We the People? 2. What is the connection between the fact that the jury only says 1 or 2 word(s) (guilty/not guilty) when announcing its verdict and so too does the defense at arraignment (guilty/not guilty)?
in an imperfect world, understanding the valid critique of the current guilty vs not guilty paradigm, what is the better alternative? can we spend some time envisioning a better process? Also, more courtroom dramas and more Paul Newman please!
What is the equivalent party to the jury in the legislative system? If we're to assume that it's the electorate, for example, how might a jury wield more or less power than voters in shaping civil society?
What makes the idea of a congealed, We-the-People conglomeration so appealing? To me, its greatest asset seems to me its most fictional: that it represents anyone and everyone. I'm not trying to sound defeatist; I admit that it might be the best ideal, and that its practical failings are still preferable to some other path. But I'm wondering if there isn't some more compelling rationale out there for it. Otherwise, we're left with a criminal jury model that, for all its dramatic anecdotal successes, suffers severe, centuries-long unresolved inabilities to mete out justice in equitable ways that bypass the pitfalls of individual biases. And even if that's not grounds for a change in system, it certainly warrants increasingly creative and dramatic attempts to resolve.
How can we claim We the People in juries when parties routinely try to stack juries in their favor? In addition, I know masks can be difficult to wear but I would appreciate if you would be able to wear one for the entire duration of the class!
How does society define what practical limits can be placed on what a "jury of your peers" looks like? Should farmers be judged by farmers? Doctors by other doctors in malpractice cases? Is there an appropriate ratio of men/women? I think it's much easier to know what a "jury of your peers" isn't rather than what it is. For example, 12 white men judging a POC defendant isn't a jury of comprised of peers. But at the same time, it seems unworkable in practice to build a jury comprised of people with identical life experiences to that of the defendant. What principles should govern the arbitrary lines that necessarily must be drawn?
What could have been improved about the Crits' method of destabilization (if improvement would be needed at all)? And how do their successes and failures reflect how we view the role of a jury in executing a fair trial?
As more people got included in We the People, it became a fairer representation of what we, as a community, accept and imagine to be justice. For those reasons, the trail also became fairer because it received a democratic imprimatur (although there is still lot more to do), expressed through a jury that was representative of the People. We can measure the positive/negative changes by comparing the defendants' and juries' opinions about the legitimacy of the institutions they are subjected to/are supporting.
Hi Professor! Thanks so much for explaining the distinctions between the 6th and 7th amendment. If possible, it would be really helpful for you to type up a brief summary because I got a little lost. Also, I really enjoyed watching the movie clip and would love to watch legal movies together in class if possible - the movies are a great way to kickstart discussion! I learned a ton from My Cousin Vinny :)
I have two main points of feedback. The first is that I would have liked to see more engagement on (and discussion of) the key questions raised throughout the class. Can the jury deliver justice if not representative (of race and otherwise)? What are the alternatives? Are the notions behind the 6th and 7th Amendment distinctions sound? When should the jury form their own view as to the law? Etc. Second, I enjoyed the 'mini-lecture' from Prof Nesson on the 6th and 7th Amendments. I would like to see more of it, especially at to tie the threads of any discussion together.
Is it even possible to have a collective sense of justice such that it is recognizable across the "hearts" of each citizen? If so, what are the unifying qualities of justice? This is a question for me because the reliance on "justice" as the underlying feature of "we the people" and the citizen jury seems to be placing our reliance on an amorphous term that means wildly different things to different people.
Considering the final scene in "The Verdict," although justice was served (in my opinion at least), should the jury have had to explain why they found the doctor guilty, especially since some very damning testimony was heard but eventually "excluded"? In every case with a trial, one side is going to come out victorious, and maybe they majority of us are satisfied with that verdict (like in the movie). But what does it mean procedurally that often the jury does not have to explain their reasoning (if potentially guided by emotion)?
What are different ways of thinking of, and perhaps resolving, the tension that arguably exists between on the one hand the idea of popular sovereignty that is implied in the jury trial ("We the People" as a basis for legal justice) and on the other hand the rule of law? In "The Verdict" the jury, rightly, is the hero when it ignores the rules of evidence and the judge's instructions. But when does the jury become a people's tribunal with no regard to the law? (If that posited extreme point indeed is a bad thing? But I would be inclined to say that it is.)
A jury in a criminal trial can give a general verdict. Equally, a jury can seemingly convict a defendant based on prejudicial ideas by the jury as a group. Even if the jury doesn't employ a type of "general conviction," they might find for the prosecution on issues of fact that would, in effect, convict the defendant although the defendant is innocent. The jury system seems like a double-edged sword and I'm interested in the other half of it.
during today's discussion about who is included in WE the people and the general fairness of jury trials, I was struck by the possibility that this may not be a question that can be answered without turning to empirical evidence. and doing so may be possible--couldn't a study determine (or at least provide a loose idea) of whether juries or judges reach unfair/prejudiced verdicts more often over time (by, for example, examining the number of convictions overturned for reasons of discrimination or bias, or looking at particular sentencing disparities?).
I thought this was another great class! I was a bit confused about the discussion about how "we the people" is about aristocrats and those who are excluded -- is this just illustrating the idea that "we the people" should include everyone, but some people have a strong interest in excluding others from it?
How has the notion of a fair trial changed as more people have been included in WE the people? How do we measure positive and/or negative changes in a fair trial? I am wondering (i) whether we, as citizens and as future lawyers, would measure a successful/fair trial through subjective or objective measures and (ii) what factors we should consider in thinking about a fair trial today - what's important to a fair trial? Is this a case by case analysis of what makes a determinatively fair trial or are there factors of a fair trial applicable to each proceeding as more of a per se rule?
Posed this to the group but interested in a wider discussion. When jurors were formed, they often knew all of the parties to a case, which was thought to help them reach a correct, or at least "just," result. Now, the "community" from which jurors are selected is so large, jurors are not intimately familiar with the parties of a case. Does this impact how fair/effective juries are? Does it make them better or worse or just different? Another layer is how lawyers impact the process. When jurors knew the parties to a case, there were no lawyers. Now, lawyers almost act as an intermediary between two sets of strangers. How does that impact the process?
Why are juries often left out of sentencing decisions? How can WE THE PEOPLE feel we have the power to assign justice when we are only able to answer yes or no to very limited, almost always incomplete factual questions? Most people don't know that jury nullification exists before going to law school. Most people hate going to jury duty. The idea that The Verdict presents—that an understanding of jury importance and power can be imparted via a single dramatic speech—is clearly a myth. When can we begin to shatter these myths? Which myths help us and which hurt us?
I still feel the need to discuss in greater detail the distinction that Prof. Nesson was drawing between the 6th Am. Jury and the 7th Am. Jury. I wonder if the characterization of the 7th Amendment jury as concerning more the facts than justice is fair to the civil jury. After all, commerce (money) is perhaps the most visible marker of justice/injustice in our society. Does a jury seeking justice simply ask "who gets to be free?" Or is a jury that asks "who pays?" really getting at another form of justice, or maybe even a deeper form of justice? Interested in continuing to explore this dichotomy as we move forward.
My question(s): Why should we care to follow what the Framers wanted for us in terms of the jury? I recognize that the system has been going on for ages and was good once, but why is it so firmly established that we cannot change it ever? I feel like we need to update our conceptions of what a "fair trial" is; this is especially important now that we have five-and-a-half justices on the Supreme Court (Roberts is on thin ice) that are hell-bent on destroying any civil and criminal rights of "we the people" as laid out in the Constitution. We need to push back on the consistent erosion of our rights.
Also: I am near-certain that all the comments on these threads that are unrelated and unhelpful come from David, so please chill with them, thanks.
Thoughts on the portions of The Verdict that we watched together: Much has been said about the power of the jury, but I wonder about the other procedural aspects that affect the larger concept of a fair trial. It strikes me as “unfair” that the defense attorney intimidates the witness nurse by crowding her space, asking her leading questions that she is untrained in knowing to avoid answering, and threatening her with perjury. I often think trials, both in movies and real life, are simply a game between lawyers—a game in which real people’s actual rights and liberties are at stake. And on a separate issue, what should we make of the comical moment in which the judge asks the jury to forget the testimony and evidence they had just heard from the nurse? Of course the jury could not forget, yet does the law pretend that they would? And why shouldn’t testimony that tends to reveal Truth not be considered? Which is fair, adherence to evidentiary laws enacted through our system of representative democracy or the jury’s right to proffer judgement on its own terms?