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When jurors judge

`I'M sorry, judge,'' the prospective juror was saying. ``I don't want to duck jury duty; but I just can't sit in judgment on another human being.'' ``All right,'' the judge answered. ``We'll just limit you to civil cases.''

Visibly relieved, the juror went back to the jury pool. Equally pleased, as much at having solved a problem as at avoiding an unnecessary reduction in the jury pool, the judge turned to the next matter.

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Later though, the issue returned, and, in a different guise, continued to nag him. The case on trial was an indictment for child molestation. During her closing argument, counsel for the defendant had urged the jury, ``Don't brand this man. The testimony, I suggest, raises a reasonable doubt that he is what the district attorney says he is. Speak the truth. Say that he is not guilty.'' Fervid though the speech was, it did not exceed the bounds of fair comment by a defense lawyer. Yet it was not quite correct. When the time came to instruct the jury, the judge tried to set things straight.

``When we ask you to decide whether the defendant is either guilty or not guilty,'' he said, ``we are not really asking you to give us your evaluation of him as a person. Your task is simply to answer this question: Has the government proved certain facts beyond a reasonable doubt? A guilty verdict is just a shorthand way of telling us that the government has persuaded you of all those facts to that degree. If, on the other hand, the prosecution has failed to persuade you as to one or another of the essential facts, you will so indicate by returning a verdict of not guilty.''

Watching the jurors' faces (often-doubtful indicators of a charge's instructional success), the judge again felt satisfied. He had brought the jury's attention to the essence of the task; he had reduced the emotional level of the case without embarrassing defense; and he had freed the mind of any juror who might be paralyzed by the thought of ``judging another human being.'' A few days later, the judge was presiding over a civil case involving an ordinary two-car accident, where the key issue was fault. After the lawyers had finished their jury arguments the judge rose to instruct the jurors.

``The question for you to decide is just this: Was either or both of the drivers negligent? That is, was either or both of them careless? Did either or both do something that, under the circumstances, a reasonably careful person would not have done? Did either or both fail to do something that, under the circumstances, a reasonably careful person would have done?

``In short, did either or both of these drivers fail in some way to meet the standard of care that you conclude a reasonably careful person would have met?''

Afterward, the judge found himself recalling the juror who had wanted to avoid passing judgment. Thinking about the charge just given to the jury, he suddenly realized that both he and that juror had gotten things backward.

His instructions to this jury and in the criminal case had been accurate enough. Yet, the assumption he had earlier made - that civil cases do not require judgment of person, whereas criminal cases do - was wrong.

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The judge, after all, had urged the criminal-case jury to focus entirely on the facts the government had to prove, and in doing so, to depersonalize the defendant; that is, to judge the proof, but not the individual. In the negligence case, the law was requiring the jury to consider each of the drivers as a person, his conduct to be measured against the juror's own standard of reasonable behavior. By any definition, the jury would be passing judgment on not one, but two fellow human beings.

Maybe, thought the judge, the distinction is not so sharp. Maybe in criminal cases, the jurors consider the defendant's personality as the evidence discloses it, even when he does not testify. And maybe in civil cases, the jurors sometimes focus less on an evaluation of the litigants' conduct, and more on the parties' ability to prove the facts.

Maybe, no matter how one looks at it, being a juror does mean sitting in judgment.

Hiller B. Zobel sits on the Massachusetts Superior Court.

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