By Glenn C. McGovern, Attorney Metairie, La.
Above: Ancient Greek Jury marked disks to vote in Greek Jury Trials
Our jury system comes from the ancient Greeks where democracy reached its height in Athens in the fifth and fourth centuries B.C.[i] The citizens juries of Dikasteria, or peoples’ court was the sole and final judgment on cases and personal disputes to questions of law that would affect the entire population of the community. [ii] So as to eliminate a bribed jury, the smallest recorded jury was 201 members and the typical jury had 501 members! If the case was very important or controversial, as many as 2001 jurors would be seated with always an odd number of citizens.[iii] There were no legal professionals, nor rules of procedure or evidence were used. [iv] The jury trials were often chaotic with shouting and heckling of the litigants as they presented their cases.[v] The jurors voted by putting marked disks in a marked urn.[vi] The disks were counted and a simple majority won.[vii] If a crime was involved, the jury went into a penalty punishment phase and the jury voted on punishment.[viii] The jury vote was final with no appeals under ancient Greek law.[ix] Jurors were only paid the then small sum of two or three obols a day which was enough to encourage even the poorest to become jurors.[x] The decisions of the courts were not based on laws.[xi] The jury system in ancient Greece came from the injured party trying to compensate for their loss. In 621 BC under the rule of Dracon, the first written laws came about. [xii] Women were not allowed on ancient Greek juries and any male could bring forth a case.[xiii] Citizens could be exiled and the law of the ancient Greek jury ruled the land and protected the community.[xiv]
Don Keenan discusses in his book Reptile correctly that “jury trials were invented by the safety-conscious ancient Greeks, not like the burn-em-at-the-stake early English for the purposes of making the public safer”.[xv]
In the South Carolina Supreme Court case in 2009 of Sapp v. Ford Motor Company, 386 S.C. 143 stated:
“Tort law seeks to protect safety interests and is rooted in the concept of protection of society as a whole from physical harm to person of property.”
In the Louisiana Civil Law Treatise, Civil Jury Instructions by Johnson Section 2:1 states:
“Before I tell you the law, however, let me remind you of your responsibility as jurors…. You have been chosen from the community to decide the facts. What the community expects of you, and what I expect of you, is the same thing that you would expect if you were a party to this suit: an impartial deliberation and conclusion based upon all the evidence presented in this case, and on nothing else.” …” The community wants you to try and achieve justice.”
In the Louisiana Civil Law Treatise, Civil Jury Instructions by Johnson Section 2:2 states:
“You have been chosen from the community to decide the facts. What the community expects of you and what I expect of you is the same thing that you would expect if you were a party to this suit…” Above all the community wants you to try and achieve justice.”
The U.S. Supreme Court Justice Thomas has stated that, in a capital sentencing hearing, the Government has “a strong interest in having the jury express the conscience of the community on the ultimate question of life or death.” Jones v. United States, 527 U.S. 373, 382, 119 S. Ct. 2090, 2099, 144 L. Ed. 2d 370 (1999) (quoting Lowenfield v. Phelps, 484 U.S. 231, 238, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988) (emphasis added; citation and internal quotation marks omitted)).
The Conscious of the Community Argument in Louisiana State Court
The Louisiana Supreme Court’s model civil jury charges have several references to the jury’s role as a representative of the community. Although they don’t specifically use the term “conscience of the community,” the Louisiana Supreme Court’s model civil jury charges have several references to the jury’s role as a representative of the community.
“You’ve been chosen from the community to decide the facts.” La. Sup. Ct. Civil Jury Instructions, La. Sup. Ct. R. 44, Part R at 9 (2016).[xvi]
“What the community expects of you . . . [is] an impartial deliberation and conclusion based on all the evidence, and nothing else.” [xvii]
“Above all, the community wants you to achieve justice.”[xviii]
“[Y]ou’re judges.” [xix]
“The community . . . expects you to reach an impartial verdict.”[xx]
The jury is told to consider the parties’ standing as members of the community: ”You should consider the case as an action between people of equal standing in the community.”[xxi]
- The jury must consider the “importance to the community of what the defendant was doing”:
“The next part of the plaintiff’s case that you’ll have to consider is whether the defendant’s actions were below the standard required under the law for his actions. In this case, the basic standard is that the defendant should have acted as a reasonably prudent person would have acted under the same or similar circumstances. The standard of care is not that of an extraordinarily cautious individual or an exceptionally skilled person, but rather that of a reasonably prudent person acting in the same or similar circumstances. A reasonably prudent person will avoid creating an unreasonable risk of harm. In deciding whether the defendant violated this standard of conduct, you should weigh the likelihood that someone might have been injured by his conduct and the seriousness of that injury if it should occur against the importance to the community of what the defendant was doing and the advisability of the way he was doing it under the circumstances. See at 7 (“Brief Overview of the Nature of this Case and the Verdict Form”) (emphasis added). The jury was “chosen from the community to decide the facts” and the “community expects” the jury to reach an impartial deliberation and conclusion based on all the evidence, and on nothing else: You’ve been chosen from the community to decide the facts. What the community expects of you, and what I expect of you, is the same thing that you would expect if you were a party to this suit: an impartial deliberation and conclusion based on all the evidence, and on nothing else.”[xxii]
The jury is again told to consider the parties’ standing as members of the community:
“You should consider the case as an action between people of equal standing in the community.” [xxiii]
The jury is told that “the community wants you to achieve justice” [xxiv]
“Above all, the community wants you to achieve justice. You’ll succeed in doing that if all of you seek the truth from the evidence presented in this courtroom, and reach a verdict using the rules of law that I give to you. [xxv]
The jury is told in the Louisiana Supreme Court jury instructions that it is contributing to the judicial system:
“Your contribution to the judicial system will be to arrive at an impartial verdict.”[xxvi]
Finally, the jury is told that “[t]he community appreciates your service on this jury, and at the same time expects you to reach an impartial verdict”: The community appreciates your service on this jury, and at the same time expects you to reach an impartial verdict.”[xxvii]
Based on the Louisiana Supreme Court’s Model Jury Instructions, both parties should be able to argue that the jury is the representative and conscience of the community.
In State v. Welcome, the Louisiana Supreme Court noted, with approval, a prosecutor’s closing argument in a capital murder case telling the jury that it could recommend life imprisonment “as you in your good judgment as the collective conscience of our community feel is appropriate.” State v. Welcome, 458 So. 2d 1235, 1255, 1255 n. 17 (La. 1983) (emphasis added).
And in Thistlethwaite, the Louisiana Fifth Circuit Court of Appeal found no reversible error, under the circumstances, in the plaintiff’s attorney’s “conscience of the community” arguments, in a punitive damages case. Thistlethwaite v. Gonzalez, 12-130 (La. App. 5 Cir. 12/18/12); 106 So. 3d 238, 258-59.
Tracking the exact language in the Supreme Court jury instructions should be done. One should avoid arguments that the jury should punish the defendant because it is a large out-of-state corporation in a non-punitive damages case.[xxviii]
Two Louisiana criminal cases have allowed arguments that the jury is the conscience of the community.
In State v. Beavers, a criminal case, the Louisiana Supreme Court quoted, with approval, a federal court decision which stated that “the jury [is] . . . the conscience of the community.” State v. Beavers, 364 So. 2d 1004, 1010 (La.1978) (quoting United States v. Spock, 416 F. 2d 165, 182 (1st Cir.1969) (“Uppermost of these considerations is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic”) (emphasis added).
In State v. Christine, a criminal obscenity case, the Louisiana Supreme Court cited, with approval, a U.S. Supreme Court decision which allowed this jury charge: “You may ask yourselves does it offend the common conscience of the community by present day standards.” State v. Christine, 239 La. 259, 270–71, 118 So. 2d 403, 407 (1959) (quoting Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1312, 1 L. Ed. 2d 1498 (1957)).
Deterrence is a well-settled and principal goal of the tort system.
Cutsinger v. Redfern, 2008-2607, p. 13 (La. 5/22/09); 12 So. 3d 945, 954 (noting that “the collateral source rule furthers the major policy of tort deterrence” but holding that “application of the collateral source rule would not further the major policy goal of tort deterrence” and the UM insurer is allowed to reduce its payments to plaintiff by the amount of workers’ compensation benefits received) (emphasis added);
Bellard v. Am. Cent. Ins. Co., 2007-1335, p. 20 (La. 4/18/08); 980 So. 2d 654, 668 (noting “the two guiding principles of tort damages-to deter wrongful conduct and to make the innocent victim whole,” but holding that “the major policy reasons for the collateral source rule-the belief that the tortfeasor should not profit from the victim’s prudence in obtaining insurance and other benefits, and that reducing the recovery by the monies paid by a third party would hamper the deterrent effect of tort law-are not present” and the UM insurer is allowed to reduce its payments to plaintiff by the amount of workers’ compensation benefits received) (emphasis added);
Bozeman v. State, 2003-1016, p. 12 (La. 7/2/04); 879 So. 2d 692, 700 (holding that under the collateral source rule, the plaintiff’s damages did not include the amount that health-care providers wrote off when accepting Medicaid as payment in full; “The major policy reason for applying the collateral source rule to damages has been, and continues to be, tort deterrence. The underlying concept is that tort damages can help to deter unreasonably dangerous conduct. . .. Tort deterrence has been an inherent, inseparable, aspect of the collateral source rule since its inception over one hundred years ago.”);
La. Dep’t of Transp. & Develop. v. Kansas City S. Ry. Co., 2002-2349, p. 11 (La. 5/20/03); 846 So. 2d 734, 741 (noting “the collateral source rule’s goals of tort deterrence and accident prevention”) (emphasis added);
Halphen v. Johns-Manville Sales Corp., 484 So. 2d 110, 118 (La. 1986) (noting that “[s]trict products liability and accident law in general pursue four primary goals” including “reduction of the total cost of accidents by deterring activity causing accidents . . . .”) (emphasis added) (superseded by statute, on other grounds, La. Rev. Stat. 9:2800.57 et seq.).
There are numerous U.S. Fifth Circuit cases saying that “conscience of the community” argument is generally “disfavored” in civil cases. But a closer look at those cases show the advocate went a bit far then just using the words conscience of the community and did more that invoked the prejudice of the jurors’ geographical locations, popular appeal, identities or geographical locations are invoked to prejudice the jurors’s view point or said improperly to “send a message” type argument. We will analyze these cases in the next article.
Many thanks to Bruce Dean, attorney of New Orleans, La. for his research and help on the legal research for this article.
[i] See “The Jury in a Court of Law in Ancient Greece by Jennifer Mueller http://classroom.synonym.com/jury-court-law-ancient-greece-12337.html
[x] Law court (ancient Athens) https://en.wikipedia.org/wiki/Law_court_(ancient_Athens)
[xv] Page 27, Reptile, the 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan
[xvi] See http://www.lasc.org/rules/supreme/RuleXLIV.asp (eff. Oct. 15, 2014) (accessed July 26, 2016).
[xix] Idid at 12
[xxii] Ibid August 19, 2016 Page 6
[xxiii] Ibid at 9 (“General Closing Instructions”) (emphasis added).
[xxv] Ibid at 9 (“General Closing Instructions”) (emphasis added).
[xxvi] Ibid at 12 (“Final Instructions Prior to Deliberation”) (emphasis added).
[xxvii] Ibid at 12 (“Final Instructions Prior to Deliberation”) (emphasis added).
- [xxviii] ee, e.g., Boutte v. Winn-Dixie La., Inc., 95-1123, p. 12 (La. App. 3 Cir. 4/17/96); 674 So. 2d 299, 306-07 (finding reversible error in defense counsel’s arguments that: (a) a finding of liability would cause the cost of goods for its consumers, including the jurors, to rise; (b) plaintiff’s counsel and plaintiff’s doctor were from New Orleans and Houma respectively, which deliberately resorted to local prejudice; and (c) plaintiff’s medical treatment was produced from some conniving “medical/legal machine,” rather than from her legitimate needs).