by Anna Offit
In 2017, 0.65 percent of federal civil cases were tried before juries— down fifteen percent from the year before. In light of this fact, and the downward trend it perpetuates, one might expect jurors to play a diminished role in lawyers’ everyday work. Empirical research in a U.S. Attorney’s Office in the Northeast, however, suggests otherwise. After interviewing 133 Assistant U.S. Attorneys between 2013 and 2017, I discovered that even Civil Division lawyers with limited trial experience prepare cases with jurors in mind. This is a counterintuitive finding at a time when some argue that jurors have a limited role in the legal system today.
How might one account for jurors’ salience in prosecutors’ work? My research offers several explanations and argues that consideration of hypothetical jurors informs decisions at every stage of case preparation. First, and most obviously, attorneys have an instrumental interest in anticipating how jurors will respond to evidence and witnesses if there is any chance a case will proceed to trial. If an employment discrimination (Title VII) suit or Federal Tort Claims Act case with nongovernment defendants may find its way in front of jurors, it would— after all— be irresponsible not to consider them. By one lawyer’s account, assessing the “jury impact” of a case was a logical extension of this uncertainty. A colleague likened his consideration of jurors to “planning for an emergency”— recognizing that even summary judgment is an exercise in imagining what a fictive reasonable juror might think.
Beyond the instrumentalities of trial strategy, however, prosecutors invoked jurors as an ethical resource. Throughout their case preparation, for example, prosecutors grounded opinions about the fairness of their cases in future jurors’ hypothetical views. One supervisor distinguished this analytic move from discussions about the sufficiency of evidence in a case. He explained that AUSAs exercised discretion to determine whether filing a complaint (or prosecuting a criminal case) “was in the interest of justice.” Proofs that might be viewed as a “close call,” he reflected, “if a juror is going to think who really cares that A lied to B if B did not suffer harm.’”
Others more explicitly ascribed justice considerations to hypothetical lay decision-makers through references to the “jury appeal” of their cases. In some prosecutors’ formulations, jury appeal assessments were likened to asking, “If I were a juror, what would I think?”— or a practice of weighing whether a “hypothetical juror would feel the case should not be prosecuted even if it legally could be.” To this end, talk of jury appeal allowed sources of concern or ambivalence to be discussed from a position of detachment. In some instances jury appeal was cited in decisions to modify investigations or decline cases altogether.
Consideration of jurors’ perspectives also influenced the way prosecutors talked about their cases— including the language they used to characterize evidence and witnesses. In the process of defending the U.S. in a civil suit involving a plane crash, for example, a prosecutor felt strongly that a record of radio communications between an air traffic controller and pilot should be referred to as a “partial transcript.” If the case went to trial, he reasoned, this distinction would emphasize the incompleteness of the interactions that jurors would learn about in court. The plaintiff, in contrast, referred to the transcript as though the airplane at issue was the sole focus of the air traffic controller’s attention rather than one of eight planes for which he was responsible. This attorney emphasized the importance of fashioning phrases and case themes from the imagined perspective of future lay decision-makers.
References to jurors also facilitated more democratic decision-making among prosecutors. Despite working in a hierarchically organized office, AUSAs often grounded the contrary opinions they shared with supervisors and peers in the imagined perspectives of lay onlookers. This approach allowed conflicting views to be presented in impersonal terms and kept lay intuitions about justice at the center of their discussions. The diversely constituted and unpredictable interpretations of future jurors raised the stakes of disregarding colleagues’ divergent views. A finding that emerges from this research is that declining number of trials has not robbed juries of their ideational effects on government lawyers’ work. Collectively, these insights make a strong case for the continued relevance and impact of the jury system despite the rarity of trials.
Anna Offit is a research fellow at the Civil Jury Project. She has a PhD in Anthropology from Princeton University, an MPhil in Anthropology from the University of Cambridge, and JD from the Georgetown University Law Center.