Mark C. Zauderer, Esq. discusses America's system of trial by jury.
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GUEST: Mark C. Zauderer, Esq.
I’m Richard Heffner, your host on The Open Mind … and it is trial by jury – the American version, here and now in the 21st century – that many thoughtful citizens would indeed put on trial today.
Now in 1801, in his compelling First Inaugural Address – along with “freedom of religion; freedom of the press; freedom of person under the protection of the habeas corpus” – Thomas Jefferson listed “trial by juries impartially selected” as “the creed of our political faith … the touchstone by which to try the services of those we trust; and should we wander from them in moments of terror or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty and safety.”
Well, no one embraces that concern for “trial by juries impartially selected” more than the highly regarded leader of the American bar who is my guest today, Mark C. Zauderer, partner in the New York law firm, Flemming, Zulack, Williamson & Zauderer, LLP,
Which is why, of course, Judith S. Kaye, the distinguished Chief Judge of the State of New York – determined as she is to make a vastly strengthened jury system the true hallmark of our 21st century American system of justice – appointed my guest to Chair her blue ribbon Commission on the Jury. And it is about that pro bono task, to which I know he devoted his enormous reserves of time and energy, that I would like to query Mark Zauderer, asking him first just how goes the jury system today?
ZAUDERER: Well, I think I can report that the jury system is alive and well.
HEFFNER: Getting better?
ZAUDERER: And I think getting better, thanks to the efforts, in this State, of our Chief Judge. And many citizens and lawyers who are devoted to seeing that it, that it thrives and continues. That’s not to say that the system doesn’t have critics and has not always had critics.
But you alluded to the historical roots of our jury system, and I think that’s something important for us to keep in mind. That in our Declaration of Independence one of the major complaints cited of the King, was that in many instances, the King had taken away from the colonists, the right to jury trial.
So, the concept of a jury trial, and it has changed mechanically over time is rooted in our history, it’s rooted in the English history, it’s rooted in our history of the colonies and then has persisted as an important and valued institution throughout the subsequent history of our country.
And, I think it’s easy to be cynical about any institution and certainly we’ve heard, today, for example, in many of the high profile cases, which perhaps we’ll have a chance to talk about, criticisms of the jury system. But I think by and large it’s served us well.
And I think it’s very important for leaders in our country, political leaders and certainly members of the bar to have a dialogue with the public about the importance of our jury system.
HEFFNER: Well you’ve had this dialogue over the last couple of years in your Commission …
HEFFNER: … I gather you’ve spent a lot of time going to communities and trying to discern what the criticisms are.
ZAUDERER: That’s right. The members of our Commission which include lawyers, judges and a citizen who had served on a jury, conducted throughout our State seven public hearings, invited and received many written communications and E-mails from people. And listened to over 125 witnesses testify at our hearings about their experience in the jury system.
And I think there were some remarkable conclusions that, that we were able to draw from that. And the first is that by and large, those people who actually get to serve on a jury and hear a case … not simply report for jury duty and then are excused, but who actually hear a case, report a very high degree of satisfaction with the process.
After all, they are participants in this system of justice, they are playing a role which is perhaps the most important function and both a right and a responsibility of citizenship; one of the most important functions a citizen can play.
We have a country, of course, of 50 states. But just here in New York alone we have over 650,000 people who walk through the courthouse doors every year to be considered for jury service. And when you think about what a remarkable opportunity it is, and how important it is in our system of justice to have that many citizens intersect yearly with the justice system, it certainly emphasizes the point that it’s a system worthy of our attention and constant improvement.
HEFFNER: How many of them serve?
ZAUDERER: Well, unfortunately, and this was one of the precipitating observations for our work, was the only roughly 20% of the population … 20% of those who are called for jury duty actually end up hearing a case. And there are many, many reasons for it. And one of the charges of our Commission, as given to us, was to determine, you know, what factors conspire to eliminate from jury service many people.
Remember, no citizen has a right to serve on a particular case, no person, no defendant in the criminal justice system, or a party in a civil case, has a right to a particular jury or particular jurors. But what is required constitutionally is that when we pick juries, that the actual members of the jury be picked from a fair cross section of the community. And for many reasons, all people who have studied the system feel that that is the fairest way and it’s the way that constitutionally we are required to select our juries.
HEFFNER: But now, again … what are the reasons, good and bad, that only 20% of those called to serve actually do serve?
ZAUDERER: Well, there are, there are reasons that, whether they’re good or not, they’re understandable. And there are some reasons that are not so good. We have, in our selection process a system which permits potential jurors to be excused basically for two reasons.
One, which we’re generally familiar with which is “cause”. It’s a fundamental requirement that to serve on a particular case the juror must be fair and impartial … unbiased in hearing the matter.
And when we call people, a certain number are going to be unable, if they’re, if they’re truthful with themselves and the lawyers or judges making inquiry, unable to serve on that case.
And this, by the way, produces some very interesting dialogues in trials. I gave an example during some Town Meetings that we conducted during Law Week, Town Hall meetings around the State of a situation where there was an automobile accident. And it was a terrible crash … two cars went through an intersection. And the driver of the first car was killed. And the driver of the second car survived.
And the family of the driver who killed brought a law suit against the, against the driver. The case went to trial, and during jury selection the lawyer asked one of the potential jurors, “Do you think you can be fair in this case?”.
And she said, “Yes, yes, I do.” He said, “Well, have you ever had any experience with anyone in your family, or close to you who has been in an automobile accident?” She said, “Yes.” He said, “Well what was that?”
She said, “My sister was killed by a drunk driver”. He said, “Well, can you be fair in this case?”
She said, “Absolutely.” And the lawyer on the other side, for the defendant, called the lawyer aside and said, “This is a basis for excusing this juror for cause. There’s no way that someone who’s had a terrible experience like this in her family can be fair.”
And the other lawyer said, “No, I think she can be fair. She affirmed the fact that she can be fair in this case. And she’s got a right to sit on the jury.”
So, they went to see the judge to resolve it. And what’s less important in how the judge resolved it is …look at the tension that is, that is, is created in our jury selection system … it does result, of course, in many people who want to serve on a case, being excused. Now that person who, if excused on that case won’t sit on that case, may sit on another case, or may get … may go home … to be called on another day.
But I think what that process illustrates … a process which does result in the excusal of many people who are willing to serve is that our justice system is, is like … is analogous to the production of a custom suit rather than an off-the-rack suit. It’s one of the few institutions of government in which citizens participate and juries are selected in a time consuming, often tedious process.
Now, of course, our job, those who administer the system or are interested in the system, is to insure that we have maximum efficiency in that system. That we don’t excuse people who should sit on juries; people who say, perhaps, not honestly, “Well, I can’t sit, I have a, I have commitments that don’t permit me to sit on this trial”, that we need to talk through that with people. We need people to understand that their role is critical in the justice system and that if they aren’t willing to serve, or if they look for excuses not to serve that aren’t legitimate, that the whole system suffers.
It’s a wonderful system and it’s such an opportunity also not only to serve the justice system, but to educate the public about what goes on in the justice system. There’s nothing that serves to educate someone better about the justice system than their participation in a trial.
HEFFNER: What about this question of my saying in the voi dire process that I can be fair. And an attorney saying “I don’t want him.” Isn’t it often the case that the criterion that is used is not whether I believe I can be fair, or whether, indeed, I can be fair, but whether that attorney wants me there because he’s more likely to get an unfavorable verdict, in his own estimation; than a favorable one with me there.
ZAUDERER: That’s a very good question. And it’s known that lawyers in the, in the exercise of trying to establish whether a juror can be fair; that each lawyer wants a juror who will see fairness through the eyes of that lawyer.
HEFFNER: Vote his way.
ZAUDERER: And vote his way in the case. But you’ve raised a subject which is very controversial today in the world of trials and juries. And that is the continued existence of preemptory challenges. I described a few minutes ago challenges for cause. Someone who clearly can’t be fair and impartial in that case.
But in … throughout our country in, in … throughout the States, as well as in the Federal system, lawyers are given challenges … peremptory challenges … which means that a lawyer can excuse a citizen from serving on that case for no reason, or for any reason at all, as long as it’s not an illegal reason.
A supreme court has said we can’t strike somebody from a potential jury on the basis of race, or now on the basis of sex. But jurors … lawyers often have intuitions about jurors, about whether or not they can really be fair in the case. Perhaps they feel, and they do feel it’s not provable by demonstrating that there’s a basis to excuse a juror for cause.
So each side in a case is given preemptory challenges. And I will point out that in criminal cases in our country, there is no ideological fault line between prosecutors and defense lawyers …
HEFFNER: They all want them.
ZAUDERER: They all want them. Now whether that’s good for everybody, that’s one of your … that’s one of the contributing factors to having citizens who don’t serve on juries who, who are called down, but don’t get to serve.
In New York, for example, in the most serious felonies each side … that is the District Attorney and the defense lawyers … have 20 preemptory challenges. So when we call people for a jury trial, we may have to call in a hundred people, or more to have a pool of people from which to choose the jury in that serious criminal case.
Because when you consider that the defense may use, or will use, 20 challenges. The prosecution, that’s 40. You’ve got a certain number who will always be excused for cause. We have sit 12 jurors and we have to have alternates. It can be a tremendous burden on the populous.
HEFFNER: And yet, and yet when I read your report that was the one great reform that your group, your Commission could not agree upon. And postponed to some never-never land in the future. Why? Because of the make-up of your Commission?
ZAUDERER: Because it is such a controversial subject and there are so many points of view. That, frankly, we felt that we couldn’t resolve it and to try to push to resolve it, could have overshadowed, negatively, all the other work we were able to agree on and arrive at recommendations.
HEFFNER: Let me ask you this question. Do you think that is the single most important factor in the delays that take place and in the creation of the statistic that you mention, that only 20% of those called … serve.
ZAUDERER: It certainly is a highly significant factor. Perhaps the most. And that’s not to say that that, in an of itself, is a reason for eliminating preemptory challenges. But it certainly does highlight the tension between achieving maximum efficiency and maximum citizen participation when people are called, and what some perceive would be an unfair system if we eliminated preemptory challenges.
Those people who, for example defend death cases … which I’m not an expert. But where the death penalty may be imposed, point out that there are biased jurors, there are people … that the lawyers who know the case well, can ferret out who would not be fair, but perhaps for whom they could not establish cause, that need to be excused from that jury for the jury to be a fair jury to hear that case.
So there are many points of view and there’s not a large constituency, although there are writers, academics, some judges and some lawyers who want to eliminate preemptory challenges, there is not an overwhelming consensus which is going to permit that to be done at this time, it appears.
HEFFNER: What is the opinion of most judges?
ZAUDERER: Most judges would like to cut back on the preemptory challenges because they feel that they’re often … they waste time, they cause disillusionment in the system; they lead to the kind of thing that we’re talking about, which is people being called to service and then not serving on a case.
And they would like to see the trials go more efficiently because, you know, for every case that goes longer than it should, there’s some other case which is important as well, not getting heard.
HEFFNER: Well, the, the importance of satisfaction with the jury system, as you point out, is absolutely enormous. And you point out further that those who serve are much more likely to be satisfied with the experience to support the jury system, not to be cynical about it. So there is some …
ZAUDERER: That’s right.
HEFFNER: … very real social purpose to fostering the … getting a greater number …
ZAUDERER: No question about it. I mean we would like to get to the point where when one gets a notice to serve on a jury, one does not treat it as a trip or an invitation to come to the dentist. It is a privilege, an honor and an obligation to serve on a jury.
And while, this maybe the tail on the dog … one of the things we’re wrestling with now is the high profile case, which we’ve seen a number of them. You know, whether it’s the Michael Jackson, the O.J. Simpson case a decade ago, or the Scott Peterson case. Cases that achieve wide media attention place special … or rather create special problems. Which can be handled.
But there are special problems in the system that these circumstances create. You know, for example, should a prospective citizen be afraid to serve on a high profile case because of media attention. You know, what happens when that citizen is called to serve on a high profile case and is afraid that the press will speak to his or her doorman, as happened in the so-called Tyco case here in New York a year ago.
People have privacy interests in their lives that they’re entitled to protect. And then there’s another problem, which is the exact opposite of that. Which is, we’ve seen instances where people want to serve on a jury, perhaps give untruthful answers in voi dire about their ability to be fair simply because they plan to write a book as we find out later on. And have some economic motive in sitting on that jury.
I’m optimistic that this can be handled. The courts have the tools to deal with this. And we’re learning as we go. Perhaps the questions that are asked in voi dire are going to get more sophisticated, to try to ferret out those who want to serve for the wrong reason.
But we also need to assure jurors who serve in high profile cases, or perhaps celebrated criminal cases where there may be some underlying fear, that we respect what they do. That we will respect their privacy and, in fact, that we will balance the public interest and the First Amendment right of the press to cover trials, to report on trials with the privacy interests of the jurors, but commensurate with having information available to the public and the defendant’s lawyers in cases, so that defendants get a fair trial and their Sixth Amendment right to a fair jury trial is satisfied.
And we’re seeing in some of these high profile cases a tension between the First Amendment right of the public and the press to a fair trial, or to an open trial, which, by the way, also helps the defendant historically because closed trials, conducted by the government are something we don’t want.
But we also have to balance that First Amendment right against the Sixth Amendment right of the defendant to a fair trial and having a jury that’s not unduly influenced by the public or by the press. So these are continuing issues in our system.
HEFFNER: What is your own, given your experience in, in thinking through these problems, what is your own “fix” on the situation in which there is still another jury … the jury of public opinion … in which the pressure is so great these days to bring cameras into the court. And then not just to have them there, but to show on television whatever it is the broadcaster chooses to show. What’s your feeling about that. There must be jury concern that with all those people out there making a different judgment …
ZAUDERER: Well, first, the public’s judgment from viewing a trial either through the press or on television may differ, as we know from that of the jury sitting in the courtroom. That doesn’t mean that the public which is convinced that it’s, it’s decision in this, if it were … if they are shadow jurors, that their decisions is right. That the jury that makes a different decision is wrong. Remember a jury is instructed on the law and we’ve had comments from jurors after trials which is, to the effect, of “Well, he was probably guilty, but under the standard given to me by the judge, the guilt was not proved beyond a reasonable doubt.”
So we do have a difference … a legitimate difference of view sometimes between what the public sees in a trial and what the jury sees and what its obligation is. But cameras are both a blessing and for some, a curse. Televising trials is consistent with the idea of a public trial, of educating the public, of giving the public a sense of participation in, in the process.
At the same time, for jurors, this creates concerns that we need to take heed of. While generally we protect jurors in these televised trials from having their faces shown today, so they’re not identified. The trial, nonetheless can be affected. You know, commissions that have studied this, including one that, that we formed in New York State, for the State Bar Association that looked at Cameras in the Courts while recommending that in New York we continue, the since discontinued practice of having televised trials. There were some sources of concern, which some of the members highlighted.
And that is that while the overwhelming evidence as reported by participants in the system is that having cameras in the courts doesn’t unduly affect the course of a trial, the corollary of that is that there is some affect on the course of the trial. It is not the same as having no cameras in the court.
Particularly affects on witnesses. You know during the hearings that we held on that Committee, a Federal prosecutor testified who was prosecuting gang trials, that it was difficult enough to get witnesses in the community to testify against defendants in these cases. But putting them on camera, even using digitizing techniques to blot out the face, would make witnesses reluctant to testify because, you know, if someone’s in the community and testifies, even with their face blanked out, the people that those witnesses are concerned about are going to know who those people are.
Some say cameras puts people on their best behavior. Judges act well, lawyers act with courtesy and civility. But it’s not the same thing, it’s not the same trial as one would have without cameras. On the other hand there are substantial benefits for society and for the process which can achieved by having televised trials.
You know, I think if I might add one more thing on that. One of the points of contention with the press and court officials and judges who are willing to experiment with television is it’s recognized that when you televise a trial, what the public sees is put through the filter of the reporter, or the television station. The TV station may, understandably often highlight only sound bites. So now you have a vast public seeing a trial and forming an opinion perhaps about the defendant’s guilt, which may not be consistent with the view that the jury’s getting and those who are in the process who are seeing a trial from start to finish.
And, of course, the press resists mightily the notion that if they’re going to be permitted to televise, they have to televise the entire trial because they argue that would be an impermissible interference with the freedom of the press.
HEFFNER: In New York State where there had to be a suspension of the prohibition against cameras in cases where oaths are taken, people testify under oath, what’s the situation now?
ZAUDERER: Well, in New York we have a statute, a provision of the Civil Rights Law, which prohibits the televising of trials. And we’ve had several experiments in the last two decades in New York State with televising trials. In other words, we passed laws that had sunset provisions that would expire. In which there was a televising of a trial during each of those periods. Whether it’s good or bad, it depends whom you ask. Lawyers for defendants generally don’t like it. They feel that their clients are cast in unfair ways.
The media itself, of course, has been fairly unanimous in wanting to televise trials. There was a case recently brought to the highest court in New York this past year where the press argued, after some judges, lower court judges, had held that there was a Constitutional right of the press, to cover a trial.
The Court of Appeals, our state’s highest court disagreed with that. So as of now there’s no Constitutional right of the press to cover a trial. Not to cover the trial, but to televise the trial and our statutes in New York forbid the televising of trials. You know it’s something that’s open to the political process. Right now it does not appear from what I see in New York that there’s much of a strong political constituency to overturning the Civil Rights law provision which prohibits cameras in the courts.
HEFFNER: All I can say, as a prejudiced person … hallelujah … I’m glad the Court of Appeals did what it should have done. I’m so glad that you came here today, Mark Zauderer … our time is up.
You’ve go to come back because we’ve got to continue this discussion of 650,000 people who through, not trials, but are called and how we can best help them to serve.
Thank you again for joining me.
ZAUDERER: I’m delighted. Thank you.
HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.
Meanwhile, as an old friend used to say, “Good night and good luck.”
N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.