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  • The Jury Trial in Criminal Justice

  • The Jury Trial in Criminal Justice

    Edited by

    Douglas D. Koski

    Foreword by

    Michael J. Saks

    Carolina Academic PressDurham, North Carolina

  • Copyright 2003 Douglas D. KoskiAll Rights Reserved

    ISBN 0-89089-349-7LCCN 2002117310

    Carolina Academic Press700 Kent Street

    Durham, NC 27701Telephone (919) 489-7486

    Fax (919)

    Printed in the United States of America

  • This book is dedicated to my wife Hui-Yu L. KoskiAnd to my parents Arthur E. and Sue Rose Koski

  • As soon as you find you can do something, do something else.

    Rudyard Kipling

  • Contents

    Foreword xiEditors Preface xiiiAcknowledgments xxv

    Chapter One The Declining Importance of the Jury Trial and the Plea Bargaining Problem 3

    IntroductionDouglas D. Koski 3

    On the Myth of Written Constitutions:The Disappearance of Criminal Jury TrialJohn H. Langbein 6

    Happy New Year Youre a JurorIvor Kraft 11

    Bargaining in the Shadow of the Hammer:The Trial Penalty in the USACandace McCoy 23

    Juries: The Great American MythGerry Spence 30

    Suggested Readings 38

    Chapter Two The Defense Counsel: The Duty of Zealous Representation and the Usurpation Problem 43

    IntroductionDouglas D. Koski 44

    Defending the DefendersAlan M. Dershowitz 47

    The Practice of Law As a Confidence GameAbraham S. Blumberg 59


  • But How Can You Sleep Nights?Lisa J. McIntyre 70

    Address to Prisoners in Cook County Jail, 1902Clarence Darrow 83

    Suggested Readings 92

    Chapter Three The Prosecutor: The Duty to Seek Justice and the Abuse of Discretion Problem 95

    IntroductionDouglas D. Koski 95

    The Decision to ProsecuteGeorge F. Cole 99

    The Prosecutors DomainWilliam F. McDonald 110

    A Moral Standard for the Prosecutors Exercise of the Charging DiscretionBennett L. Gershman 123

    Prosecutors As Crime Creators: The Case of Prenatal Drug UseKaren J. Maschke 137

    Suggested Readings 145

    Chapter Four The Victim: The Nature of Victimization and the Victim Legitimacy Problem 149

    Introduction: The Social Framework of VictimizationDouglas D. Koski 150

    The Ideal VictimNils Christie 154

    Placebo Justice: Victim Recommendations and OffenderSentences in Sexual Assault CasesAnthony Walsh 161

    The Victim-Offender Relationship in ConvictedHomicide Cases: 19601984John D. Hewitt 168

    Repeat Victimization among Adolescents and Young AdultsJanet L. Lauritsen & Kenna F. Davis Quinet 177

    viii Contents

  • The Criminal Among UsWillie James Jennings 183

    The Vilification of the Crime ProblemFrank J. Weed 186

    Suggested Readings 197

    Chapter Five Jury Selection and the Biased Juror Problem 203

    IntroductionDouglas D. Koski 203

    The Socialization of Jurors: The Voir Dire As a Rite of PassageRobert W. Balch, Curt Taylor Griffiths,Edwin L. Hall & L. Thomas Winfree 206

    Juror Honesty during the Voir DireRichard Seltzer, Mark A. Venuti & Grace M. Lopes 214

    Social Psychology in CourtMichael J. Saks & Reid Hastie 221

    Scientific Jury Selection: What Social Scientists Know and Do Not KnowShari Seidman Diamond 232

    Jury Selection: A Social Scientific AnalysisDouglas D. Koski 242

    Suggested Readings 260

    Chapter Six The Story Model of Jury Decision-making and the Jury Nullification Problem 269

    Introduction: Jury Decision-making and Its AssessmentDouglas D. Koski 269

    Memory for Pragmatic Implications from Courtroom TestimonyRichard J. Harris, R. Ross Teske & Martha J. Ginns 277

    Storytelling in the CourtroomW. Lance Bennett & Martha S. Feldman 282

    The Story Model for Juror Decision MakingNancy Pennington & Reid Hastie 292

    Some Steps between Attitudes and VerdictsPhoebe C. Ellsworth 301

    Contents ix

  • Effects of Jurors Identification with the Victim Depends onLikelihood of VictimizationMartin F. Kaplan & Lynn E. Miller 316

    Jury Nullification in the United States of America:A Brief History and 21st Century ConceptionDouglas D. Koski & Hui-Yu Lee 322

    Suggested Readings 333

    Index 337

    x Contents

  • xi


    The ju ry trial is one of the most vi s i bl e , con ten ti o u s , and misu n ders tood ofthe va rious com pon ents of our criminal ju s ti ce sys tem . It is fra u ght with iron i e s .Al t h o u gh it gives a major role to citi zens them s elves in deciding wh et h er thegovern m en ts evi den ce su pports a finding of guilt in the case of a pers onch a r ged with com m i t ting a cri m e , the public is not infrequ en t ly cri tical of t h edec i s i ons made by these ord i n a ry citi zens call ed upon to be the repre s en t a tive sof the com mu n i ty. In su ch cases, the public is in an important sense being cri t-ical of i t s el f and its own role in these cases. Yet attracting su ch cri ticism is on eof the very functi ons of the ju ry: to act as a ligh tning rod wh i ch draws publ i cd i s a pproval aw ay from the law and the ju d ge s , and dissipates it thro u gh a tem-pora ry and anonymous body of c i ti zens back into the com mu n i ty from wh i cht h ey came. If a key to the ef fectiveness of the ju ry is that it is drawn , dem o-c ra ti c a lly, f rom all of u s , that ef fectiveness is impaired by the many citi zens wh oprefer to avoid the obl i ga ti on to serve as ju rors . Yet , a f ter su ch servi ce , t h ey typ-i c a lly say that it was the most sign i ficant ex peri en ce of t h eir lives as citi zens ofa dem oc rac y, far more meaningful to them than vo ting in el ecti on s .

    Th o u gh it is wi dely assu m ed that ju rors are placed under a spell cast bylawyers who are masters of manipulation, the trial process actually filters outthe most manipulative and effective of psychological methods of influencem a ny of wh i ch are in com m on use thro u gh o ut soc i ety, but not in co u rt s ,where the trial process is refined into the most information bound of all pub-lic dec i s i on-making foru m s . Ju rors are almost en ti rely exclu ded from a role ins en ten c i n g the one major excepti on being wh en the ch oi ce of s en ten ce isbetween life and death. Then juries are considered indispensable. The jury incriminal trials is one of the most deeply rooted and highly valued of our con-stitutional rights, and yet the jury trial is becoming an endangered specie.

    These are but a few of criminal jury t rials many ironies.The Jury Trial in Criminal Justice offers an exploration of some of the most

    troubling of the issues of the jury trial in the criminal justice process. Amongthese are the gradual disappearance of juries and the dominance of plea bar-gaining, the morally complex role of defense counsel, the high and still rising

  • xii Foreword

    powers of d i s c reti on by pro s ec utors , vi ctims in the criminal ju s ti ce proce s s ,and doubts about the jurors themselves.

    The ex p l ora ti on into these qu e s ti ons is guided part ly by Do u glas Ko s k i si n trodu cti ons to each major issue and then by the co ll ecti on of re ad i n gs hehas authored or edited to illuminate each topic. Being a sociologist as well asan attorney, Dr. Koski has tried more than 150 criminal jury trials to verdict.So he sees the ju ry trial from the pers pective of a re s e a rch er and scholar aswell as that of trial lawyer. And he has produced a book that is theoretical atthe same time that it reflects down-to-earth daily practice. Among the writ-ings in the collection are works that provide both classic views and fresh per-spectives. Some are by incisive scholars, others by iconoclastic practitioners.All are informed and insightful. Readers of The Jury Trial in Criminal Justicewi ll gain an understanding of the ju ry and the criminal ju s ti ce process thatwill take them far beyond the erroneous assumptions and cliches that perme-ate our popular culture.

    Michael J. SaksArizona State University

    College of LawDepartment of Psychology

  • xiii

    * Copyri ght 2003 by Do u glas D. Koski and the Na ti onal Cen ter for the Adva n ced Stu dyof Social Force s , N C A S S F @ AO L . C O M . No te , t h ro u gh o ut this book referen ce is made tova rious aut h ors and their work s ; proper sch o l a rly citati ons are given among the Su gge s tedReadings at the end of each chapter. References for the Preface are included with thosefor Chapter 1.

    Editors Preface

    An Overview of theCriminal Trial Process*

    A qu e s ti on was asked of you ju rors by the pro s ec utors as to wh et h eryou bel i eved in l egal freedom . For God s sake , tell me what is l ega lf reedom . It is as tri cky a catch - ph rase as has ever been used to en-s l ave men . The men who were roa s ted to death by the Spanish In-qu i s i ti on had l egal freedom . That is, t h ey had all the freedom thatthe law gave them . The old men and the old wom en of Am erica wh owere hung for wi tch c raft en j oyed l egal freedom . No man who everk n ew the meaning of that word f reedom ever attach ed to it theword l ega l . Men in the past who had their tongues pull ed out , wh owere pierced with red-hot iron s , who were boi l ed in oi l , who wereti ed to stake s , who were bent on the rack and tortu red until theyd i ed , who had every limb torn from them , who had their nailsp u ll ed out and splinters run into their flesh, a ll were en j oying l ega lf reedom .

    Clarence Darrow

    I will fight for the right to live in freedom.

    Sir Paul McCartney

  • xiv Editors Preface

    Ju ry trials are an excell ent illu s tra ti on of that to wh i ch Profe s s or Ja m e sShort, past president of the American Society of