There it is. “Breaking News: Verdict reached!” scrolls along the bottom portion of your television screen or appears as a notification on your newest smart phone. We have all seen it. We have all waited in nervous anticipation for it. We flick to the nearest news channel, turn up the volume, and crowd around the screen as the criminal trial enters the final stretch. Those final words are then composedly uttered, “We the jury find the defendant…”
Some rejoice, some scream expletives at the screen, and others reflect. Some doubt the American legal system and yet others feel comforted by the protection it offered for their interests. Either way, it served its intended truth-finding function – at least for the moment – and offered a just outcome. Andrew Guthrie Ferguson, professor of law and former public defender, calls it “judging accountability.” Jurors have the unique opportunity – and obligation – to balance law and equity, employing the collective values of the community to determine alleged wrongdoing and making those wrongdoers endure the consequences of disturbing order.
In his book, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action, Ferguson highlights the challenging role jurors assume as they sit in the “seat of judgment.” In a representative capacity, jurors are the community conscience. Ferguson shares how he personally observed jurors with tears and flushed faces at the end of criminal trials, which illustrated the inherently difficult nature of having to return a verdict. A legal departure that all practitioners should be aware of, juries generally evaluate wrongdoing in light of their own personal attitudes. Ferguson refers to this as “jury lawlessness,” where juries appeal more to the characteristics of an individual at trial than the direct evidence they offer to the court. This emotion cannot easily be suppressed.
In the recent years, we had the opportunity to bear witness to the notorious cases involving Casey Anthony and George Zimmerman. In the world of public opinion, both Anthony and Zimmerman were believed to be guilty before the trials even commenced. A modern day mob lynching, the national community looked past the trial phase and wanted to proceed directly to sentencing. Such is the world with tensions running high. However, Ferguson reminds us of the “awesome” power vested in the jury. He reminds us that, though serving as a voice for the larger community, the jury is charged with the task of carefully sorting through evidence finding a more accurate outcome at the end of an orderly process.
So how should we, the national audience with little or no direct connection to the trial, act when an emotionally charged case is being tried? More importantly, how should we react when a seemingly controversial verdict is announced? Insightfully, Ferguson sheds light on the actual circumstances in which jurors function during a criminal trial. First, their verdicts lead to irrevocable consequences, both for the criminal defendant and the prosecuting agency. The jury has one opportunity to get it right, otherwise an innocent man may lose his liberty or subject their community to the return of a criminal. Thus, practitioners have one opportunity to get to know their jury and connect with each one of them on a personal level. Second, their actions are bound by legal principles specifically tailored to the case at bar. Judges, as well as counsel, bury the jury in complex rules that are supposed to govern the fact-finding stage of trial. The larger public has the benefit of watching the story unfold in a series of uncensored stories in the media. We as a national audience are not generally aware of those impactful rules – we just sit on the bench.
Juries not only hold criminal defendants accountable – assuming they are convicted – but they also hold the government accountable. Ferguson wants us to be aware of the constitutional check juries have on prosecutorial agencies within the government. The founders of the United States Constitution assured the future of America that its citizens would never have to fear criminal penalty without the due process of law. That due process commonly lies with the jury. In fact, where criminal defendants choose to waive their right to a jury trial and proceed with a bench trial, they do so because they know the law is on their side but not the consensus of public opinion. Ferguson addressed the discipline a jury must exercise in applying the appropriate burden of proof – beyond reasonable doubt – in examining the evidence. We, the national audience, do not share that same responsibility.
At the end of his book, Ferguson left us with an important duty. Instilling in us the values of the Constitution, he calls us to act as one deliberative body. Whether we are called to carry out our civic duty and serve on a jury or not, we must live the Constitution and embody its principles. Only then will we be able to show the jury in the next publicized case the respect they truly deserve.
Robert Nothdurft, Jr.
Senior Staffer, Criminal Law Practitioner
Image painted by John Morgan, uploaded to Wikipedia (en) by Swampyank (The Jury by John Morgan.jpg in Wikipedia (English)) [Public domain], via Wikimedia Commons.
 Andrew Guthrie Ferguson, Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action 139 (2013).
 Id. at 157.
 Id. at 140.