Replacing the Jury System

I recently read an editorial in which the writer called for abolishing trial-by-jury and searching for an alternative system to replace it.

This rather surprised me, as I thought the jury system had already been abolished. Oh, we still have juries of course. There's still a Queen of England. And juries have about as much to do with deciding the outcome of trials as the Queen has to do with deciding how England should be governed.

A Personal Anecdote

Not long ago I was summoned for jury duty. As the judge and the lawyers went through the process of selecting a jury, it became pretty obvious that the defense lawyer intended to argue in court that his client could not be held responsible for his actions because his judgement was impaired by some prescription medication he was taking. Each potential juror was asked if he or she was familiar with this drug and its effects. The drug was pretty obscure -- I don't think I was alone in never having heard of it. Only one person said she knew anything about it, and she was a nurse. The lawyers questioned her further, and it turned out that while she had heard of the medication, that was about it. She recalled the name having been mentioned when she was in nursing school, but she had never actually given it to a patient. And so she was permitted to serve on the jury.

So: If the court had concluded that any of the potential jurors were familiar with this medication from personal experience or had studied it in med school or whatever -- if anyone had the knowledge or experience to judge whether the defendant's claims were true -- they would have been excluded from the jury.

I was excluded from the jury for other reasons, but it's not hard to guess what happened in court. The defense probably brought in "expert witnesses" who testified that this medication seriusly affected one's mind and impaired one's judgement. The prosecution would then bring in experts to say that this medication had no more effect on one's thinking than an aspirin. And the jury would have to decide which was correct. But decide how? They were deliberately chosen because, of all available candidates, they were the people least qualified to evaluate the evidence. All they would have to go on was who sounded more convincing, who was the better talker.

What a Jury Hears

Once the jury is seated, they begin to hear evidence. In theory, each side is supposed to present the best case they can, and the jury decides whose case is stronger.¹ But in practice, the judge decides what evidence is "relevant". A judge may decide to prevent the jury from hearing testimony about the defendant's prior criminal record, or about evidence gathered without a proper search warrant.

So not only is the jury carefully chosen to be people who do not have adequate background to judge the facts, but they are then fed only those facts which the court wants them to hear.

A Little Analogy

Suppose you are buying a car. Somewhere along the line you visit a dealer for XYZ Auto Company. The salesman tells you that XYZ's cars were judged the best by an impartial panel of consumers. He even offers you a complete copy of their study. So you look it over. The introduction explains that the members of the panel were carefully chosen to be impartial, and that their conclusions were based on a series of tests and demonstrations conducted in their presence by representatives of each of the car companies.

Sounds pretty good, right? What could be more fair?

Then you read the fine print. (Let's assume they're fair enough to include the fine print.) You discover that the panel was chosen by the marketing department of XYZ Auto Manufacturing Company. They explain that they took numerous steps to insure the panel would be fair. First, they chose the panel from a group of licensed motorists selected at random. They then carefully questioned people about their opinions on various makes and models of cars and excluded anyone whom they considered biased. Then they decided what tests and demonstrations would be relevant to picking the best car. They worked hard to protect the panel from hearing any irrelevant information that might unfairly bias them. Of course, this meant that anyone who had ever actually driven one of the cars being compared had to be excluded from the panel.

After reading that, how much credence would you give to the conclusions of the report? Would you ask questions like: How did XYZ company decide who was too "biased" to serve on the panel? Surely one could be forgiven for suspecting that anyone who sounded like he might favor a competitor's car would be eliminated as "biased", while someone who favored an XYZ car would be declared "insightful". How did XYZ company decided what tests and demonstrations were "relevant"? Surely one could be forgiven for suspecting that tests at which their cars do well were judged "relevant", while tests at which their cars do poorly were declared "irrelevant". If, say, XYZ's cars get better gas mileage than their competitors, but are more difficult to repair and maintain, we would not be surprised to see gas mileage listed as an important cost factor, but maintenance costs left out.

One would hardly be surprised to hear that such an "impartial panel" had concluded that XYZ's cars were superior. The only way they could possibly come to another conclusion is if they realized they were being manipulated and resented it enough to ignore the biased evidence that was presented to them and vote for another company's car out of rebellion.

The Impartial Judge

A defender of our current legal system might reply that there is a fatal flaw to my analogy. I said that the person controlling the "impartial panel" was the marketing director of XYZ Company, a person with an obvious bias toward one side. But in a courtroom, it is not one of the lawyers who controls the process, but the judge. The judge is impartial: he has no ties to either side. Indeed, if there is any possible source of bias -- if it turns out that he owns stock in the company being sued for a defective product or some such -- he is supposed to remove himself from the case.

To this objection I reply: The fact that a person does not have any organizational membership or other public record to announce his bias does not mean that he is unbiased. It just means that he is smart enough to not announce his biases too blatantly. Suppose, for example, that a judge was an absolute racist. Every time a case comes before him in which one person is white and the other black, he carefully stacks the deck against the black person. He routinely excludes anyone who is a member of a civil rights organization from the jury, but he overrules any motion to exclude someone who is a member of a white supremecist group. If a white person is charged with a crime against a black person, he regularly finds legal technicalities that allow him to exclude the most imporant evidence; he rarely does this with black defendants, or if he does he only excludes trivial or redundant evidence. Et cetera. Would you say that because this judge is not and never has been a member of the Ku Klux Klan or the American Nazi Party, that that proves that he is not biased? Hah. And remember, judges remove themselves from a case because of apparent bias, this decision is not made by someone else. Surely the most biased judges will not remove themselves, precisely because they look forward to the opportunity to act on their biases.

Now, my racism example is pretty blatant. I certainly do not mean to imply that all or most judges have that kind of extreme, irrational bias. But there are many more subtle biases about what constitutes "justice" and what kind of society is desirable. Our courts today are regularly hearing cases about some of our most controversial social issues. When, say, there's a case where an environmentalist group accuses a major corporation of violating anti-pollution laws, surely the judge has some opinion on the proper balance between protecting jobs and protecting the environment, on the role of government in such disputes, on the general morality of big business versus that of environmentalists. Perhaps he has strong feelings on such subjects. Perhaps he just has vague inclinations. Can we really expect that his opinions will not in any way influence his rulings in the courtroom? Let's get real.

Competent Experts

A second objection is that I am denigrating the role of expert witnesses. The defender of the present system might ask how I can assert that experts will contradict each other on the witness stand. Am I accusing these esteemed experts of lying?

I reply, Sometimes, but that's not the point.

Let's recall that expert witnesses are routinely paid for their testimony. If not, they probably have some personal or ideological interest in the outcome of the case or the precedent it will set. If not, why are they willing to take the time to come and testify?

A dishonest expert might accept a large sum of money to get on the witness stand and lie through his teeth. But we need not be that cynical to take "expert testimony" with caution. If he's being paid to give testimony benefitting one side, surely it is fair to ask if he might not make just a little effort to convince himself that that side is indeed in the right, when if no money was involved he might have come to a different conclusion. Maybe when he testifies he'll exagerrate just a bit the facts that are helpful to his side, and skim over facts that might be damaging.

How Did We Get Here?

Who made up these rules, anyway? And why?

At risk of over-simplifying, I think it's fair to say that the rules about irrelevant testimony were adopted to prevent a lawyer who knew his case was weak from bogging down the system. Suppose you were a lawyer and there were no rules against irrelevant testimony. Your client is obviously guilty. You might bring up everything you can think of out of desperation. Maybe you can confuse the jury to the point that they lose sight of the relevant facts. Maybe if you just stall long enough something will happen that you can use to your advantage. If you're really lucky, maybe you can bog down the works so long that the other lawyer will agree to something just to get this over with. So it makes sense to give the judge the power to stop a lawyer from reading the complete works of Shakespeare, unless he can show that this has some real bearing on the case.

But we've come a long way from that kind of simple, common-sense rule. Judges today exclude all sorts of evidence as "irrelevant" that the ordinary person would think had a lot to do with this case. A defendant's prior criminal record can be declared irrelevant. It is surely true that the fact that a person has committed crimes in the past does not prove that he is guilty this time, and it would surely be terrible if a person who is trying to straighten out his life were to be convicted of a crime he didn't commit because the jury just took it for granted that he was a "bad apple". But that does not make this evidence "irrelevant", only tricky.

I came across a case recently where an appeals court threw out a murder conviction because the trial court had allowed the wife of the victim to tell the jury how hard it was on their baby girl to learn that daddy wasn't going to come home any more. This was irrelevant testimony, the judge declared, because the defendant did not know at the time he committed the murder that his victim was married, and so it could not be considered in deciding the "blameworthiness" of the defendant. Thus, he ruled, the only purpose this testimony served was to prejudice the jury, and so the conviction must be overturned. (Fortunately for justice, the Supreme Court reversed this decision and allowed the conviction to stand. Not on the grounds that it was acceptable for the jury to hear this evidence, but rather, they said, this was "harmless error" that had no impact on the jury's decision.)

Likewise, one can certainly comprehend that there are dangers in a jury relying on personal experience in evaluating technical issues. To take the medication example that I began this article with: Perhaps the effect of the drug is different on different people. A jury member might have used the drug and not had his mind affected at all, even though it caused other people to have wild mood swings, hallucinations, whatever. (Or vice versa, of course.) But it is one thing to say that limited personal experience does not make one an expert; it is quite another to say that this is a liability. Surely the juror understands the limitations of his own knowledge. If not, he is not competent to judge the case anyway. Even if we accept the idea that "a little knowledge is a dangerous thing", surely the solution is to get people who have more knowledge, not less.

It Seems To Me ...

It seems to me that if a case really hinged on the effect of a certain drug on the defendant, the best people to have on the jury would be doctors and nurses who had given this drug to numerous patients and were familiar with its effects. Of course these are the very people who would be excluded from a jury under our present system.

It seems to me that the lawyers from both sides should be allowed to present whatever evidence they please to the jury, with the only limitation being some sort of reasonable time limit, and let the jury decide what is relevant and what is not. If we don't trust the jury to distinguish the relevant evidence from the irrelevant, how can we possibly trust them to evaluate the relevant evidence anyway?

It seems to me that juries should be made up of the next twelve people off the list of candidates, and a lawyer should have to present convincing proof of real bias to eliminate someone from the jury. Okay, if a juror turns out to be the defendant's brother-in-law, or if it is discovered that he boasted to his drinking buddies that he doesn't care about the evidence, he's going to vote for conviction because he hates everyone of the defendant's race, yes, these would be valid grounds to remove him from the jury. But the fact that a juror once expressed an opinion about the death penalty or lives in a certain neighborhood or is a member of a particular organization ... Once we started allowing jurors to be eliminated for such reasons, we abandoned the idea that the jury should represent the community, and replaced it with the idea that the jury should be the alter ego of the judge.

Footnotes

1. For the moment let's ignore the legal distinctions between "preponderance of evidence", "proof beyond a reasonable doubt", etc. These distinctions are, of course, important, but not relevant to the present argument.

Island of Sanity