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-- By MichaelBerkovits - 10 Feb 2008

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Initial Notes:

Eben touched on a number of quirks of the jury system and of the trial process.

1) Lawyers pay inordinate amounts to "jury consultants" in a magical ritual seeking control (and a predetermined outcome) to an inordinately complex social process.

• But just because jury consultation right now falls laughably short of a "science," does not mean that better jury consultants could not actually create a more sophisticated science of jury-picking that would actually come with reliable, statistical margins of error (e.g., in this type of case, choosing jurors of this type yields a verdict of "not guilty" with 80% confidence).

2) Right now, trials are sometimes "ordeals" where the verdict is not determined by actual guilt or innocence (or liability or nonliability), but rather by a quirk of fate in the form of the net wealth of the defendant.

• This bumps up against point 1, above. One of the ways wealth is supposed to matter is in the ability to throw hundreds of thousands of dollars at expert jury consultants. But if consultants don't really affect the outcome of a trial, then at least one of the ways wealth is supposed to affect trial outcomes is non-existent. Of course, there would still be many other ways wealth would play a role: more effective lawyering, expert testifiers, etc.

3) We keep lots of "external" evidence from the jury: parol evidence rule, unreliability of witness testimony, expert testimony about the number of wrongfully convicted people exonerated by DNA evidence, expert testimony about jurors' own cognitive biases (all we have are instructions from the trial judge about disregarding biases and judging the evidence). Logically, if some people are convicted even though a group of 12 reasonable women and men supposedly finds that there is no reasonable doubt as to their guilt, then jurors should never vote to convict - because they should not be able to trust their own impulse that there is no reasonable doubt, because other groups of 12 reasonable people get it wrong. Furthermore, do the jury instructions on reasonable doubt - that doubt that would give pause before making a life decision or a business decision - encourage jurors to bring to bear faulty cognitive systems? Prospect theory tells us that we tend to assign low-probability events a zero probability - is this the cognitive system we want governing decisions about guilt or innocence? Do our jury instructions encourage jurors to assign to low probabilities of innocence a zero value? What a "reasonable doubt" means can be affected in at least two ways.

First, do we as a society - and hence, judges and lawyers, as representatives of that society - mean to convey by "reasonable doubt" that level of reasonableness that gives us sufficient comfort with our verdicts to live with ourselves, and do jurors (implicitly?) know to interpret the phrase through that lens? Along those lines, do the demands for an adequate comfort level change over time? In 1600's Salem, the populace appeared to be relatively comfortable (but maybe not, given some historical accounts) with tests of guilt that were truly random - does she float? Today, we probably do somewhat better in determining whether the accused actually did what she or her is accused of, but we obviously don't do it perfectly - so have the demands of achieving a sufficient comfort level increased with improving crime-detection technology? Does the definition of "reasonable" change in accord with the times?

Second, do jurors themselves interpret the phrase as to accord with intuitive notions of justice? Does the phrase reasonable doubt drop out and get displaced by gut feelings? Are jurors doing anything different than what readers of sports news doing right now as they determine whether Brian McNamee? or Roger Clemens is telling the truth?

Here are some other things that have recently struck me about the jury and trial system.

4) Peremptory strikes - This is another area where we create a ritual - the Batson test - in order to hide the obvious. One side raises prima facie evidence of a discriminatory animus for a peremptory strike, the other side proffers a reason - any reason - other than race or gender, and the burden returns to the accusing side to show that the reason is fabricated. Prof. Goldberg told us a story - I don't remember whether it was taken from a real case or apocryphal - in which the prosecutor justified striking an African-American juror by the fact that he "didn't like mustaches" because he thought they signaled something about character.

• It seems like we're comfortable with allowing lawyers to strike jurors because of their anticipated biases, but (my sense is) less comfortable with expert jury consultants going in and doing the same thing in a supposedly more expert fashion. Our system has already bought halfway into the notion that trial outcomes are predetermined by the personal biases of the jurors, by allowing peremptory strikes - why, then, doesn't the system go whole-hog and have jury-consultant type experts (i.e, the jury consultants of the future, who will be able to input any fact pattern and determine the probabilities of various verdict outcomes) tell us the probabilistic outcomes of trials rather than running the trials themselves? These are not well-formed thoughts right now, but I suspect that we admit some of the crapshoot nature of our system - only enough to create the impression that we're doing enough about it to somehow make it legitimate - but we are blind to the full extent of the problem.

5) How do the alternatives to the jury system play into some of these things? One alternative - trial by judge - is frowned upon for several reasons. First, it is seen as elitist, and it is presumed that the people would not be happy if their liberty depended solely on state actors. Second, there is a fear that trial by judges would get us closer to a police state. But what about the power judges already have to "take the case away from the jury" through JML. Is this power exercised often enough that we do, in effect, have a system of trials by judge? Or do we really allow the community to have its say through jury-driven decisions? Clearly, some lawyers in certain types of cases continue to believe that jury trials produce much higher likelihoods of success, though some studies cited in our Civil Procedure casebook found that judges and juries tend to reach verdicts of "liable" about the same proportion of the time (I believe that the confounding factor - that the cases that are tried by judges might differ in relevant ways from the cases tried by juries - was not taken into account).

6) As far as I'm aware (though I will certainly look it up if I write about it), capital punishment can only be meted out by a jury. Interesting that what Eben calls our "biggest magic" - killing someone - is reserved for decision by "the community" and not the state.

7) Many, many trials turn on the competing credibility of various witnesses. Studies show that most people are not better than chance at telling when someone is lying (I think - have to look this up). One exception was secret service agents. Why don't we have secret service agents as jurors? Or rather, why don't we have professional jurors, with the kind of training that makes secret service agents good at seeing who's telling the truth? This presumably creates the same criticisms directed at a system with all bench trials - but isn't it better, because at least we're making some attempt to see who's actually telling the truth? Still, even secret service agents obviously were not fallible. When most cases turn on competing credibility, and when we have no lie detectors, isn't it clear that trials are just probabilistic, and if so, aren't there cheaper ways of rolling the dice?

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