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Yale Contemporary Law Series The American Jury System Randolph N. Jonakait Yale University Press New Haven and London Copyright © by Yale University. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections and of the U.S. Copyright Law and except by reviewers for the public press), without written permission from the publishers. Set in Adobe Garamond type by The Composing Room of Michigan, Inc. Printed in the United States of America by Sheridan Books, Ann Arbor, Michigan. Library of Congress Cataloging-in-Publication Data Jonakait, Randolph N. The American jury system / Randolph N. Jonakait. p. cm. — (Yale contemporary law series) Includes bibliographical references and index. ISBN - - - (C : alk. paper) 1. Jury—United States. I. Title. II. Contemporary law series. KF .J66 . —dc21 A catalogue record for this book is available from the British Library. The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources. Contents Preface, vii Acknowledgments, xvii Introduction, xix 1 Overview, 2 Checking Abuses of Power, 3 Hammering Out Facts, 4 Juries and Community Values, 5 Abide the Issue, 6 Jury Size and Jury Performance, 7 Unanimity and Hung Juries, 8 The Vicinage, 9 The Most Diverse of Our Democratic Bodies, 10 Challenges for Cause, v vi Contents 11 Peremptory Challenges, 12 “Scientific” Jury Selection, 13 The Adversary System, 14 Presentation of Evidence, 15 Instructions, 16 Jury Verdicts and the Primacy of Evidence, 17 Jury Trials of Complex Cases, 18 Jury Nullification, 19 The Finality of Verdicts, 20 Reform, Notes, Index, Preface I was nervous. Extremely nervous. I had been practicing law for just two months as a public defender in New York City, and I was about to undertake my first jury trial. Although my job with the New York City Legal Aid Society had given me a month of training before I was let loose in court, I had never seen an actual trial. The two defendants had been formally charged with “jostling,” a crime under New York law that punishes people for unnecessarily putting their hands near or in others’ pockets or purses, a crime intended to punish pickpockets. The complaint, however, hardly indicated a light-fingered pair. That legal instrument charged that the two had beaten a person senseless on the Bowery and had taken money out of his pockets. I knew little about the case other than the single paragraph setting out the charges. New York law did not even require that I be told who the prosecution witnesses would be, much less what they would say. I could do only what I had been taught to do. In the courtroom before the judge entered, I tentatively called out the victim’s name listed in the complaint in hopes that he would talk vii viii Preface to me. No response. I said it louder. Still no response. I then called out, “Officer Murphy,” who had made the arrests. A man with a gold badge dangling from a breast pocket motioned me outside. His first words to me were angry. “I worked hard to become a detective. I am Detective Murphy, not Officer.” He almost spat that last word. He went on to tell me that he had been working a robbery