Traditionally, juries have been required to reach a unanimous decision. A few states do allow non-unanimous convictions (such as by a 10-2 vote), but they’re in the minority. So what happens when a jury can’t reach a decision?

If a jury is well and truly stuck, the judge will declare a mistrial. The prosecutor has the option of bringing charges again (double jeopardy doesn’t prevent this), but of course that will involve lots of extra time and money for the government. Plus the accused and any witnesses will have to go through another trial. Judges really, really don’t want this to happen.

If the jury is hung, about half the states allow something called an Allen charge. Allen charges are allowed in federal cases as well. Named after an 1896 murder case, an Allen charge is essentially a plea from the judge to the minority members of the jury, urging them to consider joining with the majority. The charge emphasizes the potential costs of a retrial, and it points out that the evidence was strong enough to convince most of the jurors. It’s worded strongly enough that it’s often called a “dynamite charge.”

The Allen charge is controversial. Many argue that it’s coercive. For that reason and others, about half the states forbid it. In those states, if a jury is deadlocked, a judge may ask them to consider further. But if that gets them nowhere, a mistrial will be declared.

The live action version of How the Grinch Stole Christmas is, in my opinion, far inferior to the original cartoon. But there’s a great scene in which the Grinch is messing things up in the post office. Among other things, he flings mail into the cubbyholes, all the while chanting, “Jury duty, jury duty, jury duty, blackmail, pink slip, eviction notice….” Is jury duty really that awful? And how does it work?

The idea behind jury duty is that people are entitled to a jury representing a cross-section of the community. We don’t have to have that sort of jury. When juries were used in 12th century England, they were composed of men who already knew something about the offense, by either being witnesses or having investigated the case. More recently, some people have proposed that we ought to have professional juries, especially in cases involving technical or scientific evidence that laypeople would have trouble grasping. But what we do instead is attempt to randomly choose members of the community to serve.

Jury selection processes vary by jurisdiction in the United States (big shock there, right?). Generally the jury commissioner (usually a county job) uses voting and drivers license registration records to compile a list of eligible people. This means certain groups will be underrepresented, especially the poor who may not have licenses, may not be registered voters, or may not have a permanent address. The commissioner estimates how many jurors will be needed in a particular time period, randomly chooses from the list, and sends those lucky people a jury summons.

The length of jury service varies. Where I live now, the rule is one day or one case–you get called in, and if you end up on a case that day, there you go. But if you don’t, your jury service is (usually) complete at the end of the day. There are exceptions to that rule, however. The last time I was called, jury selection in one particular case took two days, so we all sat there for that long. The first time I had jury duty, in Oregon, I had to serve for two weeks. During that span, some people served on more than one jury, while some of us didn’t end up on any. But we all sat there for two weeks.

As the Grinch knew, most people aren’t happy about getting that summons. If you ignore it, though, you can be found in contempt of court. Also, employers are required to give employees time off for jury service–but they’re not required to pay them. Serving can mean a real hardship for some people. Many jurisdictions allow those who’ve been summoned to ask for a reschedule. Another option is to go to court and try to convince the judge to let you off the hook. Judges vary in how lenient they are about this.

The group of people who have jury duty at any one particular time are called the jury pool or venire. I’ll post another time about how we get from that large group to the twelve (or so) specific people needed in a particular case.

Marvin watched nervously as the jurors filed into the courtroom. None of them looked friendly. In fact, they looked mean. They all glared as if they’d already decided his guilt, even though the trial hadn’t even begun.

Swallowing thickly, Marvin tried very hard to look innocent. The tattoos on his cheeks—the ones that read DEADLY and KILLER—probably didn’t help. He should have listened to his mother. Too late, too late.

But as he noticed something else, he sat up straighter in the hard wooden chair. All of the jurors were at least twenty years older than he was, and unlike him, not a single one wore the purple braids indicating that he or she worshiped the Great Agapanthus Goddess.

Excited, Marvin poked his lawyer. “Hey! Hey!” Marvin whispered. “It’s a miscarriage of justice. It’s not a jury of my peers!”

Marvin’s lawyer gave him a pitying look. “I’m afraid I have bad news for you.”

Marvin’s screwed.

The language about a jury of one’s peers is old, having first appeared in the Magna Carta in 1215. Because I’m a nerd, here it is in the original Latin:

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super cum ibimus, nec super cum mittemus, nisi per legale judicium parium suorum vel per legem terre.

And here’s the translation:

No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

The Latin word parium had a very specific intention back in the 13th century. It meant the members of a jury had to be no lower in social standing than the defendant. And since the primary purpose of the Magna Carta was to limit the rights of the king with respect to what he could do to other members of the nobility, the barons who wrote the thing weren’t intending to protect common people at all.

Flash forward half a millennium and across the Atlantic. When James Madison wrote the 6th Amendment to the US Constitution, he was certainly influenced by the text of the Magna Carta (and by the English Constitution):

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

But look what’s happened: there’s no mention at all of peers.

As a matter of practice, the 6th Amendment is interpreted to mean that a jury must be fairly representative of the community in which the crime took place. Not precisely representative, and not the same as the defendant himself. This means that potential jurors can’t be excluded because of certain factors, such as race, religion, gender, and so on. But in reality, juries are generally comprised of people who are older and more affluent than defendants—in part because poor people can’t afford to lose income while serving on a jury.

So where does this leave Marvin? Nowhere good, unless he can prove that the prosecutor systematically excluded young potential jurors and those who were loyal Agapanthans. Proving that is very difficult, though.

Marvin should have listened to his mother.