Popular Science Monthly/Volume 47/July 1895/A Medical Study of the Jury System
By T. D. CROTHERS, M. D.
THE uncertainty of jurors, and the capricious, whimsical character of their verdicts, are accepted as inevitable, and explained as part of the natural weakness of the mind. It is assumed that, if the facts are clearly presented, a jury will give a common-sense verdict, which will approximate the truth and human justice. Where they fail, it is due to the confusion of testimony, the misrepresentation of counsel, and the general perversion of facts. Many thoughtful men consider the judgment of twelve men, who are disinterested, superior and on general matters of dispute of far more reliable character than the judgment of one trained man. Yet literally, the verdicts of twelve men, based on the same set of facts, differ widely, and can never be anticipated; and, whether wise or unwise, are clearly due to other influences than the commonly supposed conflict of facts and motives of truth and justice.
While it would be difficult to doubt the motive and intent of the average juror to be just and fair in his conclusions, it would seem that certain conditions and surroundings make it impossible in most cases to either understand the case in question or the principles of equity involved. The theoretical and ideal jury to whom are daily referred questions of life and death, and often momentous interests concerning families and individuals, is never seen in real life. The delusions of the court room, that the twelve men set apart for this duty are endowed with a large and sufficient mental capacity for the discernment of justice, is far from being true in reality.
From a medical and scientific point of view, the average twelve men who are appealed to by the counsel and judge to wisely determine the issue of a case are usually incompetent naturally, and are generally placed in the worst possible conditions and surroundings to even exercise average common sense in any disputed case.
In a noted trial at Hartford, Conn., out of a panel of one hundred jurors, twelve men were finally selected after a long, searching inquiry. Five of them were farmers, who worked hard every day in the open air, men who were unaccustomed to think or reason, except in a narrow way along their surroundings and line of work. These men all swore that they had not read any details of the case, although it occupied a large share of public attention and had been discussed freely in all the papers. They were muscle workers, with but little mental exercise, living c n coarse, healthy food, and sleeping from early evening to early morning. Of the rest of the jury, one was a blacksmith and two were mechanics, all steady workers; one was a horse trader, one a groceryman. one a retired farmer and trader, and the last man was an ex-railroad man who had no business. Every one of this jury was accustomed to be in the open air, and had not read details of the case, although he had heard it talked over. Not one of these men would have been chosen to take charge of any trust, or to decide on any matter outside of his everyday life—simply because, on general principles and from common-sense observation, he would have been considered clearly incompetent.
For ten days this jury was confined from five to six hours a day, listening to the testimony of the mental capacity and motives of the maker of a will that was disputed. Of course, they disagreed; and had they reached a unanimous verdict, its wisdom and justice would have been a matter of accident.
In a celebrated case tried in an interior town in New York, a most complicated chain of circumstantial evidence, involving the questions of concealed motives of unusual acts and conduct, of blood-stains, of the accuracy of chemical and microscopical work, of different opinions of competent men, was submitted to a jury of the following persons: one carpenter, one wagon-maker, three coopers, two farmers, one groceryman, one contractor, and three nurserymen. These men all testified that they had not formed an opinion on the case, although it had been town talk for months. Not one of them could naturally have given an intelligent opinion on any of the issues of the case, even if they had been presented in the most impartial, simple manner by the judge. When two opposite views were urged by opposing counsel, in an adroit partisan manner, the most uncertain mental confusion would be inevitable.
This particular jury was not only incompetent naturally and by want of training to discriminate facts that were unfamiliar, but its members were unaccustomed to consider any range of facts compared with others to determine which were true.
In a third celebrated case, a jury composed of four fishermen, two shipbuilders, two stonecutters, one clerk, two merchants, and two persons of no business, was asked to decide on the facts of one of the most mysterious cases of poisoning. A number of expert witnesses and shrewd lawyers extended this case two weeks, and gathered a mass of statements that only the most astute judge could have disentangled. These jurymen were not only bewildered, but were mentally palsied by the appeals of counsel.
The methods of selecting jurors are thus literally open doors for the defeat of the very purposes of justice. The ostensible purpose in the selection of a jury is to secure men of honesty, intelligence, and courage to reach unbiased conclusions in accord with the facts. In reality the practice is to gather men who can be influenced by the counsel—men possessing some defect and weakness which can be taken advantage of by one side or the other. The issue of the case will depend on the influences which can be brought to bear on the jury. Usually, jurors are rejected when they swear that they have formed an opinion; but when they assert that such opinions are subject to change from evidence and are not fixed, they are accepted. The real qualifications would seem to be availability, credulity, ignorance, and possibility of personal influence by persuasion, flattery, and appeals to some personal bias that may be known. Each counsel is interested in selecting twelve men he can influence to his view of the case, or, in the court language, "men he can handle readily." It is unfortunately true that jury duty is evaded by the best men, and to a large extent the men who are willing to serve in this capacity are more or less incompetent. In the cities, idle men and professional jurors are always available. In country towns, farmers, mechanics, and others find the jury duty a recreation, and a not unpleasant change from the monotony of their life. While these men are superior to the city jurors in honesty, they are less able or accustomed to the confinement of rooms and the emotional appeals of partisans.
It is evident to any general observation that the average jury is unable to pass judgment on, or even to comprehend in any adequate way, many of the questions submitted to it—such as motives and capacity of the mind and the power of control; the analysis of conduct, and the conditions and influences which have been dominant in certain acts; the application of the law, and the distinctions of responsibility and accountability; the distinctions of science as to the meaning of certain facts, or the recognition and discrimination of facts from the mass of statements. To this incapacity are added the passionate appeals of opposing counsel, who draw the most opposite conclusions from the same set of facts. Then the judge charges that if they shall find such and such conditions to be true, they shall bring in such and such a verdict; and if such and such conditions are not true, another verdict must be given. This brings them into a state of the most bewildering mental confusion, from which only the trained judge could extricate himself. The wonder is that they are able to reach any verdict that even approximates the levels of human justice.
These facts are recognized by all observing men, and have been the subject of serious discussion for a long time. It has not occurred to any one to consider the conditions and surroundings of the jury who are to decide the great questions of life and death so often submitted to them. Practically and literally the twelve men of uncertain intelligence, and doubtful capacity and training essential to determine the disputed questions, are placed in the most adverse hygienic conditions for healthy brain and functional activity. Supposing these men to have fair average intelligence with honesty of purpose, they are placed always in a close, badly ventilated court room, and are obliged to sit in one place for five or six hours a day; in cases of capital crime they are housed at some hotel at night, and have changed diet, changed sleeping rooms, imperfect exercise, continuous mental strain, and this may be continued for a week, ten days, or even longer. Intelligent and sound brain reasoning would be impossible under these conditions. Even judges, trained to examine and reason from facts along legal lines, display weakness and confusion of mind at the close of a long trial on many occasions.
The practical observation of any jury in some important trial will show after the first day a listless abstraction that slowly deepens into a veritable mental confusion. At times, some one of the jury will appear impressed, but soon he settles back into a prolonged, steady, vacant stare at the counsel and witness. As the ca?e goes on the faces of the jurors become paler, or increase in redness; their eyes lose their intelligence and become vacant or watery. Some show restlessness in their frequent changing positions of body; others become somnolent and inclined to stolidity; others are constrained, and seem to be struggling to keep up some degree of dignity, and imitate the judge in severity of manner. When the counsel flatters them, they start up anew and assume the appearance of more dignity and wisdom. Every lawyer has many curious stories of the schemes and devices to capture juries and jurors. Many of these turn on the debility and confusion of mind which come from changed surroundings and functional disorders resulting from confinement and mental exhaustion.
After the second day all connected ideas of the case become confused; only here and there some fact impresses itself, or some witticism or story that is strange or grotesque, or some conflict of lawyers, or reprimand of the judges. All the rest is vague and uncertain. The surprise on the faces of the jury, as the judge and lawyers repeat the testimony of the witnesses, shows that it is new, and they did not hear it at the time it was given. The pleas of opposing counsel often create equal surprise in the faces of the jury. If the jury were to render a verdict after one side had closed, it would be for that side. The same conviction is noted at the close of the arguments of the opposite side. The judge's charge often dispels this conviction for the last speaker, and throws them back into more helpless, confused states. They are told to decide between this and that statement, and if they think this is true, they must find so and so; if that is true, the verdict must be so and so. In reality they have no very clear conceptions of any of the facts the judge has called to their attention. They go to the jury room in a dazed mental state, or possessed with some particular idea that has become fastened in the mind; some idea that has no logical support or sequence in the testimony which has been offered.
The following study of a case that was recently tried indicates conditions that are present far more frequently than would be supposed:
The case was murder, in which an intricate chain of circumstantial evidence pointed to one of three men as guilty. The jury was composed of five farmers, four mechanics, and three merchants. Nine of them were active muscle workers, living in the open air most of the time, and three were actively engaged indoors. The trial lasted eleven days. The jury were boarded at a hotel, and had no exercise except walking to and from the hotel to the court room three times a day. Four of the jury complained of dull headache. On the fourth day, five of the jury had attacks of indigestion, with pain and nausea. One had chills on the night of the same day, and was given quinine freely. Two men had attacks of what was called rheumatism, consisting of pain and stiffness of the muscles, and a physician was called. Eight suffered from insomnia and constipation after the fifth night. All suffered from bad feeling and dizziness while in the court room in the afternoons. Four had coughs and colds, for which rock candy and rye whisky were freely used. Several experienced extreme drowsiness in the court room. The arguments of counsel and the judge's charge occupied a day and a half. After the verdict and the discharge of the jury, four of them were confined to bed for several days. Here were twelve men, suffering from functional disturbances due to bad air, changed surroundings, and auto-intoxications, called to decide the issues of life and death.
In a case of murder and incendiarism, where the verdict of the jury was criticised severely, the following were the facts: The jury was composed of farmers, miners, tradesmen, and mechanics. Four of them were sufferers from cough and influenza; six complained of loss of appetite and headache; one suffered from malaria, so called; and one from a return of an old rheumatic attack. The trial lasted eight days, and most of the time the jurymen were practically sick—made so by the surroundings and changed conditions of living. The diet of hotels, consisting of rich meats and desserts in great variety, is usually different from the average food of the average jurymen, particularly of the working class. The result is always overeating and under-exercise. This alone would quickly break up or disorder the mental activities. In addition to this, the confinement in the bad air of court rooms brings new sources of poisoning, particularly deficient oxidation, which of itself is sufficient to derange the normal brain functions. The crowded rooms at hotels are either overheated and badly ventilated or cold and noisy. The time for retiring and rising varies, and the usual habits of the juryman are changed in every respect. His accustomed food, sleep, and exercise, and his manner of thinking and the subject of his thoughts, all are broken up. He is asked to follow an intricate chain of reasoning, and discriminate the errors, and told that this is true and that is true, and that the law should lead him to some other point. He is flattered, and his pride is roused to do the best he can. He grows more incapacitated daily as the evidence accumulates and his system becomes deranged. Then, in despair, he will suddenly form some conclusion, guided by a fancy for some attorney or some remark by the judge. Perhaps a stubborn member of the jury has formed a conviction on the first day of the trial, and all the rest of the time is passed unconscious of evidence, pro or con, and in the jury room his very stubbornness wins.
In a noted murder trial at Portland, Me., it was evident that the jury had been impressed favorably to the prisoner. The prosecuting attorney suggested to the sheriff that he invite the jury to church. Sunday evening to hear a noted preacher. The topic of the clergyman was, "God's Hatred of Sin, and Divine Judgment." The attorney knew the topic and the intense dogmatism of the preacher, and calculated its effect on the jury. A verdict of conviction followed, due almost entirely to the sermon.
The personal characteristics of the jury are often the only doors through which they can be influenced. Religious, political, and social or personal prejudices are often considered by counsel in the presentation of the evidence. In reality, the average juryman becomes more incapacitated to rise above his prejudices, or to reason impartially, every day he is confined to the court room. At the end of a long trial he is utterly unable to form any new views, and nothing remains but his old prejudices, and these are often more fixed than ever.
The following record of a juryman's experience was made by a carpenter of more than average intelligence. He put down each night his impressions: The first day he was impressed with the magnitude of the case and the sadness of the prisoner. He did not sleep the first night, for the reason that four men occupied one room. The air was bad, and two men snored loudly. The second day he tried to remember all that the witnesses said, and its bearing on the case, and at night was very weary and went to bed early, but was wakened and disturbed by the other jurors. The third day his head ached, and he could with difficulty follow the testimony. His appetite was poor and he was drowsy. The fourth day he was astonished to hear opposing evidence; statements which had been made by apparently honest men were affirmed to be false. He was shocked, and his first impressions and personal interest were disturbed. His head ached, and he felt weak and nervous; his appetite and sleep were broken. The fifth day he gave up all efforts to follow the testimony, or to understand what was said. He felt stupid and excessively tired. The other jurors began to complain of the food and the sleeping rooms, and had several quarrels with each other on religious and political matters. Foolish stories were told, and card-playing and personal boasting filled up the evenings. They all manifested disgust at the trial, and longed for the end, and declared they would never be caught in a similar case. On the sixth day the case was closed. The arguments of attorneys and the judge's charge seemed very dull and wearisome. He felt sick, looked forward to a release, and his interest in the case had died out. He could not understand why so much was said that was contradictory, and why the judge should not tell them the real facts of the case. In the jury room no discussion took place: each one voted "guilty" or not "guilty"; and when they found the majority was "guilty," most of them followed the majority. Two of the minority became angry, and refused to vote for over a day, except in favor of the prisoner. They gave no reasons for their belief, only saying that they were right and the rest of the jury were wrong. Finally, one of these men was accused of having some personal object in voting for the prisoner, and after a short altercation he changed, and the other man followed him, and the verdict "guilty" was agreed upon.
In my experience as an expert witness I have frequently noted the change of feelings in a moderate-drinking juror. If the prisoner was an inebriate, and the crime associated with excessive use of alcohol, the first two days of the trial all moderate-drinking jurymen manifest strong feeling for the prisoner. Later, when they become tired, dull, and debilitated by the surroundings, all this feeling changes to severity and desire to punish, no matter what the evidence may be. All natural sentiments of sympathy and kindness are replaced by the coarser, lower motives, as the brain becomes disordered and weakened. If any of the jury have had a similar weakness or committed a similar crime, they usually urge most severe punishment, and especially after they lose their mental vigor in the bad air of the court room. In some cases the opposite prevails, and jurors are strangely stubborn in their unreasoning convictions for the prisoner. This is naturally the outcome of placing untrained men in positions which they can not fill, and requiring of them clear judgment under circumstances where it is almost impossible to act normally.