The first lawyer I know of to use this phrase was the great Moe Levine. Moe would consistently tell the jurors that they are in fact the conscience of the community. Given this title it was left to the jurors to determine what is right and what is wrong. The jurors, acting as the conscience of the community, need to determine what actions will and will not be acceptable in our society.
In order for jurors to act as the conscience of the community they need to rely upon their common knowledge and experience. Finally, as the conscience of the community juror’s must be able to “send a message” to the defendants that such conduct will not stand in our community.
There is much law to support the conscience of the community argument. Lee v. GNLV Corp., 117 Nev.291, 295, 22 P..3d 209, 212 (2001) states that for a plaintiff to recover there must be a finding that “such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other”. Moreover, the Restatement (Second) of Torts specifically makes statements such as “Negligence is a departure from the standard of conduct demanded by the community for the protection of others against unreasonable risk”. This is only one statement of many which supports this argument and can be found in the Restatement.
In order for jurors to determine whether or not there is negligence in a given case that jury must first make a determination as to what standard should apply to defendant’s conduct. Thus the jurors are the ones who in fact determine whether the defendant’s conduct fell above or below a threshold which is in fact set by those same jurors. Thus the jurors are in fact acting as the conscience of the community.
Intellectual giants such as Oliver Wendell Holmes, Jr. and Professor Fowler Harper have written much on the standards which are set by the jury. These legal scholars describing how the jurors are supposed to reflect the “average” man in their decision making process. Thus the jury, to the degree possible, acts as a representative of the community. It is impossible for the entire community to watch and opine on every trial. Thus we rely on the judgment of 12 or less individuals to determine what is or is not reasonable conduct.
Judge Learned Hand discusses how the degree of care demanded of a person is in fact determined. This determination requiring an evaluation of three dynamics simultaneously. Those being the likelihood that the defendant’s actions will injure others, the seriousness of such injury if such injury occurs and finally the interest which must be sacrificed to prevent such injuries from occurring in the future. Learned Hand states that the balancing of such considerations is “cosigned to a jury because their decision is thought most likely to accord with commonly accepted standards, real or fancied”.
Similarly Judge Posner has noted that “the use of the jury does bring to bear on safety problems the judgment and experience of a broader segment of the community than if judgments of negligence were made by judges alone. The bottom line is that common sense tells us that the jury is the conscience of the community. If your judge gives you grief about this statement then swiftly adapt. Perhaps use the term “representatives of the community” if your judge finds that easier to swallow.