Neuroscience and the Active Jury
4 Pages Posted: 10 Dec 2020
Date Written: December 9, 2020
In 1990, the Northwestern University Law Review published The Competency and Responsibility of Jurors in Deciding Cases, 85 Nw. U. L. Rev.190 (1990). The Article conceptualized the jury “as a democratic representative of the community through its verdicts” and argued that because of this democratic role, it should be equipped for success. The Article suggested that a modern active jury model, where jurors under the proper circumstances should be permitted to take notes and ask questions, was preferable to the traditional passive model, particularly when both a cross-section of the community and verdict accuracy were desired jury parameters. That is because there is a natural conflict between the accuracy and cross-section objectives. If the cross-section of the community means jurors would be drawn from all persons in the community, the result would be to attract average citizens who may or may not have solid educational skills. Consequently, the accuracy goal would be easily marginalized, especially under a passive jury model where jurors are expected to remember evidence and arguments up to weeks—even months—at a time before they can discuss it. The argument in favor of the active jury suggested that it provided a way to improve jury efficiency and accuracy.
How have those arguments of 1990 weathered the storms of intervening decades? Fairly well, I think. This short Essay doubles down on these claims, arguing that neuroscience discoveries have shown that active, engaged thinkers have better retention and recall and therefore will be better jurors overall. The Essay makes four points about how advancing neuroscience, especially in the digital age, supports active jury functioning.
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