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Legal Magic and Jury Instructions
The Situation |
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< | It is very unlikely that jurors understand jury instructions. The use of juries requires citizens selected at random from voter registration and driver’s license renewal lists to understand complicated legal concepts filling dozens of pages, frequently presented only in oral form. Studies have repeatedly confirmed jurors’ failure to understand critical legal theories. A recent study found that only two out of three jurors understood that intent was required to convict a defendant of first-degree murder. (Levin and Emerson 2006). When asked to define “aggravating circumstance,” a large number answered that it was “a circumstance that makes the defendant angry.” (National Science Foundation Capital Jury Project 1997). The sheer number of studies and news articles examining this ignorance suggests that it is academic and common knowledge. |
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> | It is very unlikely that jurors understand jury instructions. The use of juries requires citizens selected at random from voter registration and driver’s license renewal lists to understand complicated legal concepts filling dozens of pages, frequently presented only in oral form. A recent study found that only two out of three jurors understood that intent was required to convict a defendant of first-degree murder. (Levin and Emerson 2006). When asked to define “aggravating circumstance,” a large number answered that it was “a circumstance that makes the defendant angry.” (National Science Foundation Capital Jury Project 1997). The sheer number of studies and news articles examining this ignorance suggests that it is academic and common knowledge. |
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< | These facts present three questions. |
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> | These points present three questions. |
| | 1. Given that it is not plausible that jurors actually fully understand jury instructions, and no one thinks it is plausible, why do we do what we do? |
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< | Presenting a single theory of the motives here would be like attempting to set out Congress's single motive in passing an omnibus spending bill. I will instead set out a few possible motives and briefly evaluate their plausibility. |
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> | Presenting a single theory of jurors' motives here would be like attempting to set out Congress's single motive in passing an omnibus spending bill. I will instead set out a few possible motives and briefly evaluate their plausibility. |
| | Legitimacy |
| | This argument makes a large number of unstated assumptions, many of which are unproven. What is legitimacy? Do the courts need popular legitimacy to enforce their judgments? Does the public share many scholars’ fear of an unelected expert sitting in judgment in most cases? Public confidence in the Supreme Court, which makes high-profile decisions, has remained largely high and steady in the long run despite controversial decisions like Bush v. Gore and Roe v. Wade. (Gibson 2003) Though polls consistently show more faith in juries than judges, is public faith in the judicial system actually based on not questioning its processes? |
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< | Richard Posner articulated a more nuanced version of the legitimacy theory in The Problems of Jurisprudence,"In part, perhaps we preserve it in order to make the judicial role seem more objective than it is, by consigning difficult questions to laypersons and thereby reducing the number of cases in which judges have to decide indeterminate questions." (Posner 1993) In this view, the jury serves as a sort of opaque box. We throw the difficult questions into the box, and get answers out, and thus hide the system's arbitrary magic. Though this argument applies well to fact-finding (whether Jerry killed Sam) it doesn't work so well when we ask the jury not to consider evidence, or when we ask it to decide whether a fact is true by a preponderance of the evidence. In these cases, a judge could make the same determination with less risk of misapplying the to the facts. The number of newspaper articles pointing out obvious problems with juries' application of facts to law makes me question whether this process makes the system seem more objective. |
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> | Richard Posner articulated a more nuanced version of the legitimacy theory in The Problems of Jurisprudence,"In part, perhaps we preserve it in order to make the judicial role seem more objective than it is, by consigning difficult questions to laypersons and thereby reducing the number of cases in which judges have to decide indeterminate questions." (Posner 1993) In this view, the jury serves as a sort of opaque box. We throw the difficult questions into the box, and get answers out, and thus hide the system's arbitrary magic. Though this argument applies well to fact-finding (whether Jerry killed Sam) it falters when we ask the jury not to consider evidence, or when we ask it to decide whether a fact is true by a preponderance of the evidence. In these cases, a judge could make the same determination with less risk of misapplying the to the facts. The number of newspaper articles pointing out obvious problems with juries' application of facts to law makes me question whether this process makes the system seem more objective. |
| | Escape Hatch |
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< | Some theorists perceive this as an advantage, as it allows the jury to simply ignore legal rules that conflict with common sense or popular sentiment. If we are trying to determine why we do what we do, however, an examination of this perspective won't be very useful because it's not particularly influential in the legal profession. |
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> | Some theorists perceive this as an advantage, as it allows the jury to simply ignore legal rules that conflict with common sense or popular sentiment. This opinion, however, is probably not the driving force behind why we allow the jury instruction system to continue. |
| | Pure Tradition |
| | Close Enough |
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< | I presented this question to a few trial lawyers, who responded with statements that the jury didn't actually understand the facts, but that it's conclusions were ultimately "close enough." There is some evidence to support these assertions, as judges and juries agree on liability in 79% of cases. (Subrin, Minow, Brodin, and Main 2008) This leaves the question of why judges and juries disagree on liability in the remaining cases, and whether they have reached the same conclusion for the wrong reasons. The attorneys seemed to trust mechanisms like JNOV to weed out these cases as it did in trials like Tavoulareas v. Washington Post. |
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> | I presented this question to a few trial lawyers, who responded with statements that the jury didn't actually understand the facts, but that it's conclusions were ultimately "close enough." There is some evidence to support these assertions, as judges and juries agree on liability in 79% of cases. (Subrin, Minow, Brodin, and Main 2008) This leaves the questions of why judges and juries disagree on liability in the remaining cases, whether they have reached the same conclusion for the wrong reasons, and why we allow juries to apply law if we measure their accuracy using judges' opinions. |
| | 2. Given that jurors rarely request readbacks, why do they do what they do? |