Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Our jury system is one of the most dramatic examples of our belief in the premise that “the whole is greater than the sum of the parts.” Twelve ordinary people, with no special knowledge, experience or training, hear evidence and then go into a room and collectively divine the truth. However, the functioning of that system is based on the impartiality and anonymity of that group. Recent events in the Tyco International Ltd. and Martha Stewart cases show that our celebrity-driven society poses an increasing threat to those basic principles. We ask a lot of jurors. In a media-drenched environment, we ask them to come to a case without preconceived opinions, and then to ignore the media entirely. In a society accustomed to fast-paced entertainment, we ask them to sit quietly for weeks or months listening to people sitting in a witness chair, talking. We ask people with no legal training to understand often difficult legal issues. Finally, we ask them to undertake an intensive analysis and decision-making process that they likely have no experience in or preparation for. And yet, remarkably, it works. Not perfectly. Not always. But after some 25 years as a trial lawyer, I truly believe that juries as a whole are capable of great wisdom reached through a collaborative process. Of necessity, that requires anonymity-and peace and quiet. Traditionally, the courts, counsel and the media have helped foster that collaborative process by an unspoken “hands off” policy of juror confidentiality. That policy has begun to fall apart. In the highest-profile cases, few people really are unbiased enough to be impartial jurors. Yet, whether for fame, fortune or just fascination, some people want to be on the jury in such a case badly enough that they will lie to get there. We all saw what a media circus the Stewart and Tyco cases became. In the Stewart case, the defense moved (unsuccessfully) for a new trial, claiming that a publicity-hungry juror was biased and had lied about his background to get on the jury. One cannot help but wonder what unfair effect that juror may have had. In the Tyco case, six months of work were wasted; the judge declared a mistrial because a holdout juror was publicly identified and vilified. Reversing the “hands off” policy, the media made the jury itself the story by publishing a juror’s name. Granted, the famed Tyco “granny” juror had been a bit ornery, raising some ire in the jury room. But worse things have happened in trials. Problems that could, and should, have been handled quietly by the court (allowing the trial to continue) were overtaken by the media frenzy. A balancing act Our Constitution guarantees us rights to both a fair and a public trial. Open trials help protect fair trials, while also serving First Amendment needs. But sometimes these rights conflict: The media’s insatiable appetite for instant celebrities and scandal can interfere with the court’s ability to conduct fair trials. Jury deliberations have always been secret because we want to protect and foster a fair deliberative process. That process is greatly diminished when jurors-either willingly or unwillingly-are made into public heroes or villains and their deliberations are publicly dissected. If jurors risk public vilification for their views, then it will become harder to empanel intelligent, independent jurors. But the larger and more insidious danger is to the process itself. For 12 diverse individuals to sort through mountains of evidence and complex legal instructions and reach a consensus beyond a reasonable doubt can be a long, tough road. It is not unusual in big cases to hear angry voices from the jury room, or to see tears in jurors’ eyes when they emerge for a break. Yet juries regularly overcome these hurdles and join together in a verdict. Imagine how distorted the process can be if jurors fear, or can threaten one another, that their differences will be splashed all over the press. It seems that the Tyco case has had a sobering effect-at least for now. The judge in the high-profile retrial of Frank Quattrone ordered that the names of the jurors remain under seal. The result was an orderly trial that ended with a conviction. Placing limits on public access is a difficult pill to swallow. However, judges have long depended on the “hands off” tradition of confidentiality for jurors to help protect the fairness of the system. That tradition has apparently been broken, and it is hard to imagine the press voluntarily putting it back in place. The courts must now step in and limit public access to and about jurors and their deliberations. Of all the fallout from the recent high-profile trials, this may be the most profound. Daniel Small, a former federal prosecutor, is a trial lawyer and partner in the Miami office of Philadelphia-based Duane Morris. He is the author of, most recently, Preparing Witnesses and Going to Trial (ABA Press).

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.