The Jury by Renée Lettow Lerner

Author:Renée Lettow Lerner [Lerner, Renée Lettow]
Language: eng
Format: epub
ISBN: 9780190923938
Publisher: Oxford University Press
Published: 2022-11-28T00:00:00+00:00

Providing expertise: special juries

A type of jury that used to be frequent in the common-law world is the special jury. These juries provided expertise on difficult or technical matters, and they drew from more limited pools than ordinary juries. These types of jury have gone into decline. More democratic, egalitarian ideals have discouraged special juries. But today, when evidence is increasingly complicated and in mathematical or scientific form, the idea of a special jury may be more important than ever. Even judges have difficulty with highly technical questions, and special juries could help.

Special, technical juries have a long pedigree at common law. One of the earliest was the jury of matrons, a jury composed entirely of married women whose job was to determine if a female convict was pregnant. If she was, execution would be postponed at least until the birth of the child, but often in practice indefinitely. Some of these jurors were midwives. In the mid-eighteenth century, as England was becoming a global commercial power, questions of commercial law and marine insurance became vital. These cases often turned on technical knowledge. Lord Mansfield, Chief Justice of the King’s Bench, made extensive use of special juries to get these questions right. He understood the importance of accuracy of legal decisions for England’s economic development. He called together juries of sea captains to decide factual questions involving marine insurance, and juries of merchants to advise on business practices. Other English judges followed his example.

In the United States, courts sometimes used special juries of educated people, often called “blue-ribbon juries,” to decide complicated cases. Many states used such a procedure, but have abandoned it, some as late as the 1980s. Delaware is the only state that has retained the special jury, for use in complex civil litigation. Like Lord Mansfield’s England, Delaware has a strong interest in maintaining its courts as a forum for accurate decision of commercial cases.

Today, some of the most complicated cases involve intellectual property, especially patent infringement. The technologies can be so complicated that judges have trouble understanding them, much less ordinary jurors. Some persons have proposed using special, technically trained juries in patent cases. Such proposals highlight the tension between ordinary juries and the desire for modern expertise. This is an example of the many tensions involved in jury selection, which careful attention to the purposes of the jury can help to resolve.

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