Crime happens. Someone’s doing it. Ask around. Most people will say they didn’t do it and dunno whodunit. Most of them are telling the truth. A few are lying. Which ones? (Hint: Lie detectors don’t exist.)
Sometimes, physical evidence is clear-cut. Fingerprints, signatures, an overwhelming number of unimpeachable witnesses, video, and hair are not perfect, but they’re good enough to convince most people to agree on the culprit and what to do with the jail cell key.
But some crimes require adjudication. People who saw something will have something to say. Innocent explanations might be true, so we have to let them be said. Expertise has to be introduced in some cases. Physical evidence has to be evaluated. Credibility has to be weighed.
After all relevant information has been brought forth, a decision has to be made about what the facts are. We ask certain people to specialize in determining disputed facts and to do so in a way that unequivocally, with no qualifications or conditions, often pins the blame on someone in a way that’s so sticky that we agree on a sentence, perhaps even of death. Other people might say “it’s just a case of ‘he said’ ‘she said’ and no one can know for sure” or even “likely guilty” but the specialist is charged with the duty of deciding regardless of the type of crime and is charged with the duty of saying the defendant is definitely guilty or there’s no guilt at all here. No one is to be only somewhat guilty.
Often, the specialists are a judge and a jury. Juries, at least in the United States, for many cases, are the predominant deciders. Even though most cases filed never get to juries, the prospect of a jury decision faces all parties. How a typical jury works is therefore central to the quality of justice.
These are thoughts.
Justice is often achieved, an approximate justice in most cases. Most of the public seems to accept a judicial outcome as the final word in almost all cases, even accepting acquittals in widely-known murder, terrorism, and war crime cases; almost all defendants adjudged not guilty are largely safe when they walk on public streets. And convicts may feel likewise about other convicts. One then-former prisoner of a maximum-security military prison, released ca. when all charges were dismissed, told me, slowly: “Most prisoners consider most other prisoners guilty.”
In a minority of cases, a person was convicted of a charge but the charge was ultimately dismissed with the conviction vacated. In some of those cases, what becomes apparent is that the defendant apparently had committed a major crime but the conviction was for a different crime, including cases in which a conviction was based on an excessive charge, because some element of a charge was not true but another element had been proven thus that a lesser charge would have been upheld; but the lesser charge was not the basis of the conviction, so the person was released from responsibility despite having been a criminal.
Overall, therefore, what may be happening is that people are found guilty of charges that are kind of similar to what they would have been convicted of had sufficient proof been available. For example, one individual told a biographer that, over decades, he had committed about two hundred murders, an estimate that is credible; ultimately, he was arrested and convicted of four to six murders, the convictions were upheld on appeal, he was sentenced to prison, where he died; and the arrest resulted in his removal from where he could murder (other than if he committed any inside prison but I don’t think that has been claimed) and that removal would have satisfied a common fundamental public demand for safety.
Yet, the adjudicatory system is not free of faults. Problems are largely similar in both civil and criminal cases. People are having criminal charges dismissed because of failings with prior adjudications. That it is only a minority, perhaps a proportionately slim minority, is not dispositive, especially because disproportionately many of them are due to work with DNA evidence when only a minority of convictions are in cases in which DNA is available in evidence and because reversal efforts tend to be expensive enough to be prohibitive for many convicts, especially those still in prison. Even those dismissals have to be studied to prevent recurrence of failures in similar subsequent cases. Convicting the wrong person fails societal demands to remove and punish the truly guilty. Convicting a factually innocent person destroys a significant part of that person’s rights and opportunities in subsequent life and often rights and opportunities for persons close to them, such as children. A prosecutor objected, in a news interview, to a review of a conviction because, in the prosecutor’s view, the conviction had helped a victim’s family achieve closure, and closure is often useful for a family of a victim, but closure should not be given priority over fact. So, review is generally appropriate.
False conviction cannot always be prevented. Where reversals occur because of new evidence not available for the original trial, an argument that the original conviction should not have been had depends on allowing that the possibility of exonerative evidence that has not yet been revealed has to prevent a conviction and that would be true of every case, and that would prevent every conviction, and that would conflict with public desires for safety and deterrence, especially when ascriptions of guilt are usually approximately correct. Thus, the discovery of new evidence has to be handled within limitations that permit its introduction, analysis, and application but do not prevent conviction to be based on what is available at the time.
Whether the consideration of new evidence should be under a standard of whether a preponderance of the total known evidence supports a conviction rather than whether that evidence supports a conviction even beyond a reasonable doubt, the latter being easier for a convict to meet in seeking reversal and the same as the standard for the original trial, is a question that has been answered in law but whether the law is good policy is a separate question and that should be answered. Perhaps a third standard in between the others could be defined; perhaps it would not be practicable.
While the facts of many cases are decided by judges, in many they are decided by juries. In the U.S., juries are usually composed of individuals of potentially low qualification, such as citizenship and adulthood but probably not requiring any specific level of education, educational credential, or expertise, and subject to exclusion for reasons specific only to a case to which they may be assigned. The compensation is typically low and reportedly may be, or at least may have been, less than the minimum wage, with the compensation not coming until much later, rather than at the frequency and timing required by minimum wage law for other work.
Juries are selected in a way to which many people respond by finding ways not to become jurors sitting on cases, with a result of skewing the subpopulation that does become those jurors instead of being a random selection from the general adult population minus those disqualified or successfully challenged. Jurors who make it to cases tend to be disproportionately retired or employees in civil service employment, for whom their income while serving on a jury is generally greater than or equal to what they would receive for not so serving (reportedly many civil service workers are paid their regular civil service income in lieu of their jury pay). One attorney said he prefers jurors who read a local major tabloid newspaper over those who read a major broadsheet; while that is anecdotal, it appears that trials often rely on simplification or oversimplification of evidence in a manner more consistent with presentations of news in tabloids than that in broadsheets. It should be noted that while all humans have biases and therefore journalists, editors, and publishers do, too, the biases may differ from those of attorneys for parties; and readers still have more leeway to select the news outlets they wish to trust than they have with respect to parties’ attorneys.
Evidence in a Case and Considering It
Evidential presentation has issues affecting how juries work.
Omission of material information is enough to flip a result. What’s material may have to be decided not only by attorneys and the judge but by a juror. An example is a case in which the plaintiff alleged having been misquoted numerous times (I think allegedly with libelous effect each time). The number of misquotations was said to be 40. Evidential audio recordings supporting the quotations were produced for 35. The plaintiff amended the complaint to allege having been misquoted only five times, there being no audio recordings for the five, but the jury was not told of the 35. The silence on the 35 is, I think, critical to the plaintiff’s credibility. The plaintiff was wrong on almost every claim made; we know this as of when recordings were revealed. Therefore, it’s unlikely the plaintiff was right about the ones where recordings were not made. It might be relevant to introduce whether the plaintiff was aware when recordings were being made, relevant to whether the journalist made up the five; but the jury never got to consider that because it was not told of the 35.
Eyewitness testimony has often been found to be unreliable, probably in some kinds of factual situations more than in others, but juries are left to decide whether to believe the testimony or not without reading research into what kinds of eyewitness testimony tend to be less reliable and whether that would make a difference in a jury’s decision.
Witnesses who are offered as experts have to establish their qualifications as experts before testifying on the substance within their expertise. That’s a reasonable sequence, but the qualifications are not available to the jury in writing during that testimony. Were I listening, I would tend to care little about the qualifications until there is a substantive statement for which I want to know the relevant qualifications of the person uttering it, but that, in court, would be too late. I hardly ever pay attention to a newspaper byline unless a story seems to me to be affected by it and then I go back and look at the byline. I work that way in order to avoid trying to memorize more than I’m likely to remember when needed, but juries are not allowed to work that way. I’m not good at memorizing vast amounts of data. I’m better at finding order and relationships and making sense of things and remembering them that way. I’ve known people who are remarkable at memorization, so such people exist, but some of us are not among them.
Notes, drafts, and outtakes as evidence create problems. Notes are often not meant to be accurate when created but only to be reminders to the person for whom written and for no one else. This allows the creator to create faster and thus to create more. Where the responsibility lies with the final product, using the preparatory material as evidence should require clarifying that it is only preparatory and not meant for consumption by a general audience, so that it is correctly understood. One newspaper reporter misspelled the name of a person important to an article that was to be under her byline, but the misspelling was only in her notes and not in the article as published. Police officers, who, like all other witnesses, are required to testify accurately, may need to rely on notes prepared months or possibly years earlier but, in order not to have the notes adversely seized before they can be used, try to memorize them before walking into the courtroom or courthouse, and, given that the witness cannot be certain of what questions will be asked, prememorization is less reliable than using them during testimony, thus testimonial accuracy will often be unintentionally less. In many a case, someone will not remember why they created the preparatory material in the particular way they did, but that generally should not be held against them. The other side is that someone’s notes could have been potentially incriminating and excluding them because they’re notes could deny access to evidence, but that does not preclude introducing them while making clear that they’re notes and leaving to the jury how to apply that information.
Expert testimony follows an adversarial model that differs from that used to update a consensus in scholarship. With scholarly consensus, it is often feasible to do research to identify that consensus and many of its nuances and some questions left unanswered by that consensus or at least being asked by qualified doubters of the consensus, but a jury is not allowed to do that research but must instead rely on passively-listened-to expert witnesses who answer many questions with simple answers (often yes, no, a quantity, or a denial of knowledge), stripped of many nuances and scholars’ uncertainties, plus whatever knowledge jurors care to share with each other during deliberations. My understanding is that sometimes witneses are presented as experts based on outdated expertise, particularly where getting a witness who could contradict and update the outdated testimony would be difficult, such as from within a large organization that is an adversary in the case and that may produce only reluctant experts who may tend not to remember the answers being sought.
Eyewitness testimony to a matter contextual to what they witnessed may overlap into the content of what would be expert testimony. If it does, the witness may be ordered by the judge to label it with the phrase “I think” or words too that effect. To a jury not yet trained in law, when an expert is available, means that the witness does not know what they are talking about and should not be talking about it, thus leading essentially to self-impeachment by the witness. Yet the result may be to posit the eyewitness as incompetent for the subject of the strictly-eyewitness testimony. A hypothetical example would be a witness who is an eyewitness to what a computer was seen to do who then speaks apparently expertly, but without a credential, as to how a computer works. To label the latter with “I think” means that the eyewitness does not know what the computer was seen to do. If that witness was actively using the computer but is discredited for their presented knowledge of how it works, presumably they were incompetent to use the computer in the first place. If the witness is also the defendant, that harms the defendant’s credibility. Yet it may be precisely their knowledge of how a computer works that informs their testimony on their observations. The jury is thus misinformed. It could be more useful for the judge to tell the jury when the expert-level testimony begins that the judge does not know if the witness is qualified as an expert but that the expert-level testimony may be considered by the jury.
Impeachment of testimony has some validity, such as if an eyewitness was, at the time of witnessing an event that is the subject of the testimony or while testifying, substantially under the influence of drugs or alcohol to a degree likely to render the testimony factually unreliable. Impeachment is also useful against an expert who makes up expert content, such as claiming that the speed of light is no faster than an eagle.
However, it appears that Einstein could have been impeached were he testifying today on relativity. He once said that there is a cosmological constant. He later called that the biggest blunder of his life. If he were impeached, he probably would not be allowed to respond. That is an extreme case; it is unlikely that a jury would decide that Einstein was largely wrong about relativity. But if a similar impeachment occurred against a hardly-famous witness, the impeachment would likely be effectual.
I’ve heard that jurors are not permitted to take notes during the trial. Outside of jury settings, I’ve taken notes on many subjects. I need some of them. Schools teach students how to take notes as an aid to learning. Note-taking can skew results but it can about as easily prevent skewing results, so note-taking itself is misidentified as an issue for jury management.
Common procedure does not include the jury or any juror asking for any particular evidence except, in a few courts, asking the judge to ask certain questions of a sitting witness with the questions subject to editing by the judge and followup questions from jurors not necessarily allowed. Visiting the scene of an event that is the suject of a trial is so rare that, at least once, it has been news when it happened; a judge visited such a scene during a trial and brought other people from the trial along, and I think that included the jury. But some cases depend on whether an eyewitness even could have seen an event under given circumstances, such as whether a wall blocked the view (this, according to a news report, was reported by some journalism students investigating the factual validity of a conviction).
The judging of facts by a juror is, I understand, the subject of an instruction by judges in which the instruction is not to judge the facts until all of the evidence has been presented, post-presentation instructions are provided, and deliberations have been begun. This likely flies in the face of the consensus among scientific psychologists (clinical psychologists often diverging from the scientific findings established in their field), the consensus being that a person will evaluate any important stimulus immediately and is largely unable not to do so. A person may change their mind later, but ever since our ancestors dwelled in caves we evaluated the stimulus of a lion looking at us. Those of our ancestors who valued their skulls did not wait until the lion blocked the only exit from the cave before proceeding in their self-interest, and our existence today reflects our ancestors’ fast reactions. Jurors have publicly said that they started evaluating evidence while hearing it. And it is helpful, perhaps necessary, to look for clues to a witness’s credibility in their behavior while testifying in order to judge the words in the testimony itself.
Research by jurors during a case is discouraged. In general, they’re told not to discuss a case even with each other until deliberations begin, which is after all submission of evidence, and they’re told not to discuss a case with anyone other than each other between the beginning of deliberations and the conclusion of the jury’s role in the case, such as by the post-verdict dismissal of the jury by the judge, but there is evidence of many such out-of-jury-room discussions before a decision is reached.
Legal instructions are given too late for them to be applied to the evidence. The judges’ legal instructions are essentially a brief law school education. The best time for giving those instructions is before the trial commences. And, no examination follows the giving of the instructions, but it should, with removal from the jury of any juror failing the exam.
Lateness of evidence disqualifies it as evidence, even though available to the court in time for consideration by the original jury or available later for reconsideration of the case. Historians accept later evidence, subject to the desire of a historian, any historian, to evaluate and publish it. But a judge intervenes to prevent a jury being informed of the new evidence, even at a time when a jury almost certainly would want to know of it. Habeas corpus allows it to be presented through a new proceeding, but only if a judge determines that it qualifies for a new proceeding and subject to being judged by a different standard, generally more adverse to a former defendant who is now a plaintiff, and probably not at all if it would favor the opposing party. If the defendant is already deceased, judicial consideration of the merits is almost never provided, unlike among historians.
Jurors’ Evaluations of the Experience
Both a journalist and an attorney have served on juries and both have called the experience “interesting”. Yet, to my knowledge, neither person subsequently organized their staffs to produce results without doing research or by withholding judgment on each matter in turn until a deliberative stage. Virtually every lawyer likely learned in law school how juries are supposed to work, yet almost no lawyer organizes their staff like a jury.
Perhaps there once were good reasons for all of these practices. For example, researching a question in the days of mostly small villages, slow transportation, and judges visiting for short periods before moving on (“riding circuit”) might entail weeks of travel in each direction and a traveling juror might not return in any reasonable time frame, long after the judge should have left town. But, today, research can be completed in 15 minutes on a point that used to take weeks and jurors doing the research are still in the room.
More likely is that judges and society want a jury’s verdict to come faster. Television has the public used to that; the evidence has already been presented and jury deliberations are not televised, so the public might expect that a jury should be able to wrap things up after a few pundits’ comments and commercial breaks. In real life, parties may have taken months to prepare for trial and juries are likely to be considered hopelessly deadlocked after just a few days. Jurors, too, might prefer to give up and go their separate ways.
Room to Reform
An opportunity to examine questions independently of the parties might mean arriving at a final answer that is more consistent with the events that are the subject of the trial. That is more difficult to determine.
Experiments, with a control group and an experimental group in which all circumstances but one are the same, are likely impossible to conduct. Many of the procedures at stake are set by law for a jurisdiction and the law guarantees equal protection of the laws for people similarly situated, so generally the only variation has to be between jurisdictions, in which case an experiment is of multiple variables, at least two and often more, which almost always raises the complexity above the level at which scientific analysis can parse the effect of a single variable. Thus, only a natural experiment is feasible and then only with a number of iterations that is sufficient to support enough confidence among attorneys, judges, and the observing public to implement changes in more jurisdictions. This, however, may be stymied by the momentum of doing what was done in the recent past. This is the same momentum that relies on stenography as a means of producing a verbatim record of a trial and compensates for the impossibility of that method for that goal by forbidding the creation of much evidence that would reveal the unreliability of that method, when audio recording has been a reliable method for decades (only recently introduced for the purpose in some courts) and stenographers can be replaced by or retrained as assistant audio engineers. A practice that was excellent in, e.g., the tenth century may not meet modern expectations when good alternatives may.
The Constitutional right to trial by jury may beg many questions about how juries may be prepared and may work. The Constitution refers to the jury but does not state words about what that word means, that being implied by English common law and other law, leading many people to seek precedents to support modernization. This may render reform too difficult in the eyes of many stakeholders.
Even a creaky system may be preferred over an unfamiliar one, and many practitioners achieve relative success with the current system, so they’ll likely hesitate to tamper with it and risk an uncertain future. Discounting the hesitant narrows the constituency favoring change anytime soon.
Outside Influences Toward Reform
Audits are almost unheard-of, as far as I know. Appellate courts don’t order that, say, a trial court send one randomly-selected case per hundred completed cases for appellate examination even though no party requested the review and even if no party is eligible for a review. Many large mature organizations do audits, both of money and of program, but the upper courts apparently don’t audit the judges below. Perhaps the mature nonjudicial organizations may have something to suggest along those lines.
Balance between the jury and other judicial components may be saving the jury system. Rather like a joke of the food seller selling by the pound having a thumb on the scale pushing down while the customer has a thumb under the scale pushing up resulting in a presumably accurate weight, perhaps the defense lawyer exaggerates and lies to favor the defense, the prosecutor exaggerates and lies to favor the prosecution, the judge does whatever the judge does, and the jury muddles through and the result is usually approximately fair for the given facts. Perhaps that has been the system for so long that people know how to work with it, public safety is reasonably served by it, and the system is stable and, one could argue, good enough. Because courts, law, and opponents present many traps for the unwary, a party is usually well-advised to be represented by a lawyer in court; and almost any lawyer is going to want a jury for almost any case. And, as far as I know, public confidence is not changing much over time (it may be especially low or high in a particular jurisdiction or for a given type of case and that may be because of how juries operate in that context but that is not a critique of juries in general over time). So this may reduce, for now, to a question of whether jury service should be obligatory. If I don’t believe that faith is the right guideline for a theological question, I can decline to join a house of worship. Someone who believes that “one plus one is by the grace of God two” might decline to pursue an academic major in mathematics. Someone who believes that journalism is too sloppy (it’s said to be a “first rough draft of history”) might instead become a scholar. None of those three kinds of institutions generally want people who don’t want to be associated with it, and that’s because they tend to do worse work, or none at all, probably then and especially later, and likely contribute little to the institutions’ long-term support. Juries, on the other hand, may be depending on people who don’t want to be there and those jurors may only be going along with what other jurors decide, those other jurors thereby gaining decision-making power. If a jury of twelve is really a jury of, e.g., eight or four, we probably are not better off. If we thought a smaller jury was better, we could explicitly have smaller juries. The Constitution as interpreted with respect to civil cases already allows for a jury of six and, according to the Supreme Court, a smaller number may be Constitutional.
The fact-finding system used by the U.S. judiciary seems to be little used in other kinds of fact-finding institutions in the nation. Yet public confidence appears to be high, which is interesting, since various other kinds of institutions using other methods also enjoy high confidence. Perhaps the public looks at the outcomes and uses its judgment of those to judge the methods used to arrive at those outcomes. It likes adjudication, academe, journalism, and religion, so it tends to like how practitioners of each system do its work, even though they work in fundamentally conflicting ways to arrive at facts. An example was in publishers’ guidelines for authors seeking to publish in a group of peer-reviewed serials; authors were encouraged to cite sources but limited to citing other literature that likely is also peer-reviewed and thus should not cite a scientist’s expert testimony in court even though publicly transcribed. A scientist’s testimony in multiple cases was challenged by other scientists as based on research that was unpublished (meaning not published in peer-reviewed journals) and that contradicted what then was the scientific consensus. Religious institutions depend on faith and its stability.
Prediction, Critique, and Resistance
For any system to stay credible, its practitioners must anticipate problems before they become public concerns and must review and update their internal systems when doing so is beneficial. To begin, a knowledgeable critique is needed.
Critiquing the judiciary is problematic. By custom, criticism is muted although it’s from those who are possibly in the best position to criticize: the insiders, especially the attorneys who represent parties. Those who do typically come from outside of a judicial district against which the criticism is aimed; a professor of law who litigated or appealed a case but whose career is usually outside of there may be free to lob negative statements at it, but such outsiders are rarely in a position to gather critical information on which to base such charges with respect to any particular jurisdiction, court, or judge. Most often, it should be locally practicing attorneys, but they would be rightly concerned about harming the interests of their future clients, because their critiques, especially if direct and explicit and thus most informative, might offend the judges upon whom their future careers depend. If they hold their fire until they retire, move away, or change careers, their attacks will be dismissed as coming from disgruntled losers and will have little effect. And one could raise a concern that the First Amendment restrains Congress, not the executive or judicial branches, leaving the courts free to restrain lawyers’ expressions in ways Congress cannot. Although, politically, courts would generally be wise not to try that, the courts’ contempt power may constrain lawyers who maintain practices in such courts. Potential jurors may find it advisable not to raise the ire of a judge attempting to assemble a jury if they wish to be excused and not jailed; thus, a prospective juror who believes that they cannot fairly decide a case because they are not likely to be permitted the resources and permissions needed to do so might deem it safer to offer some other ground that would achieve the same end, with the side effect that the judge rarely hears well-explained critiques from prospective jury members who would decline to serve, and might therefore conclude that almost all prospective jurors think the jury system is fine and dandy.
My concern here is that the judiciary is more resistant to this than are other kinds of institutions. Judges may look at years, even centuries, of decisions by themselves and their peers and the juries under them on who did what, decisions that stood up to direct appeals (and certiorari), collateral judicial scrutiny, and tests of journalistic and popular examination, and, in all sincerity, believe that therefore no change is needed. And the resistance may also be because journalistic, academic, and religious institutions are subject to competition. The Internet has been a platform for more journalistic outlets competing against traditional media, bringing new reporters, more story angles, and, with new people, the possibility of new ethics. New universities are more costly to open but it’s possible and doing so can attract new revenues, new scholars, and the possibility of new standards, with the trend being toward more demanding standards. Houses of worship can be opened at much less cost than that for colleges, such as in a storefront, bringing new worshippers, new donors, and new perspectives in theology. However, the judiciary generally does not have as much room for competition. There is one Federal judiciary; the Constitution arguably does not permit two (there could be two or more, perhaps parallel, but they’d all be under a single Supreme Court). The same can generally be said of most jurisdictions in the U.S. and maybe all of them. The growing system of arbitration seems to be competitive, but it typically operates in secrecy, so that few judgments can be made about how it operates. Other alternatives to adjudication have been developed, but they’re generally voluntary and the prospect of nonalternative adjudication remains, making comparison less meaningful. By shaping a case before it is filed, often one can choose a forum, but not always.
Changes are needed, but a path into change is foggier.