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JonathanFriedmanFirstPaper 5 - 16 Aug 2009 - Main.EbenMoglen
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| | | -- By JonathanFriedman - 19 Apr 2009
Introduction | |
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< | One may argue that a criminal defendant's right to a jury trial is primarily valuable because a jury of citizens may nullify, or refuse to enforce the state's charges. As Justice Holmes describes in The Path of the Law, when the imposition of laws by a government contradicts the morality of the populace they will “rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it.” However, it may be argued that the exercise of jury nullification is no longer desirable, and, even to the extent that it could be desirable, the actual implementation of nullification is flawed and ineffective. | >
> | One may argue that a criminal defendant's right to a jury trial is primarily valuable because a jury of citizens may nullify, or refuse to enforce the state's charges.
- One might argue, but almost nobody would. In the first place, the definition of nullification is defective. "Refusing to [convict on] the state's charges" is a definition of acquittal, not of nullification. Nullification is acquittal without regard to the evidence, making the jury not the finders of the fact but the judges of the law. And there are few defenders of having juries find facts who would say that juries are primarily valuable if they ignore their fact-finding function and arrogate to themselves the judicial function of declaring the law. So your premise is fatally flawed, and everything that follows is built on a broken foundation.
As Justice Holmes describes in The Path of the Law, when the imposition of laws by a government contradicts the morality of the populace they will “rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it.” However, it may be argued that the exercise of jury nullification is no longer desirable, and, even to the extent that it could be desirable, the actual implementation of nullification is flawed and ineffective.
- This makes things worse. Nullification isn't desired, and it isn't implemented. It's not a feature of the system. Whether you think of it as a bug that can't be fixed or a property of the system that can't be changed without sacrificing the ability to operate as intended, it's not a design objective and therefore it isn't subject to implementation. Nullification is the necessary consequence of two rules: the one against double jeopardy and the one against directed verdicts of conviction. Taken together, those rules mean an acquittal after attachment of jeopardy cannot be appealed, and a jury that acquits against evidence cannot be reversed. Once you have decided Bushel's Case, ending the use of attainder to punish a jury that acquits against evidence, you have nullification whether you like it or not. Because no one will agree to imprison jurors until they change their minds about acquitting someone (and we could hardly be said to live in a free society if it were possible), the spectre of nullification is a necessary inconvenient fact.
| | | The Justification for the Practice of Jury Nullification
In his article, Making Juries Accountable (50 Am. J. Comp. L. 477), John D. Jackson proposes two main justifications for a jury to nullify. First, juries were once encouraged to nullify “on their view of whether the defendant deserves to be convicted.” Second, juries would nullify where the jury thought the prosecution was inappropriate, or where the defendant, though guilty, was justified in his actions. Essentially, as Jackson puts it, this jury is acting in the role of the mitigator of penalties. | | | Today, broad consensus of the sort that colonists felt against the British is a much less common phenomenon. Since democratic institutions are created to be responsive to the will of the people, unlike the Crown, the state's position will generally conform to that of a significant portion of the populace. Thus, the issues most likely to inspire jurors to nullify will be politically divisive among the population, rather than opposed by most people. | |
>
> |
- This is just as ahistorical as it is possible to get. You have both assumed that localism and community resistance to federal legal norms have somehow ceased to exist (as though the Sagebrush Rebellion or the "illegal immigration," same-sex marriage and abortion issues were ignorable) and also assumed that the common law was generally less reflective of social consensus in the eighteenth century than it is now. You had no basis for both assumptions, which are generally speaking absurd. You also ignore the tendencies to nullify in many communities in the US on many different grounds, all of which are well-known to and shape the decisions of prosecutors every day under the rubric of "you can't get juries in this district to convict [whoever of whatever], so we don't waste our resources on prosecutions like that."
| | | Mechanisms of Change that are More Appropriate and Effective Now Exist
It is not clear that, in a system where the lawmaking branches are responsive to popular will, jury nullification is necessary at all. The importance of requiring the exhaustion of the established channels of seeking change is a principle established in American legal doctrine, as demonstrated by Justice Stewart’s opinion in Walker v. City of Birmingham (388 U.S. 307). To the extent that the community widely believes that a law is unfair, voters can apply democratic pressures on lawmaking institutions. And even when juries nullify laws that are sanctioned by the popular majority, and even where the law is unjust, such nullification will be sporadic and random, rather than systematic and effective. | |
>
> |
- This is irrelevant. It's an argument that would be important only if nullification were a design objective subject to modification. Your analysis is wasted until you have given an argument for overruling Bushel's Case and restoring the possibility of attaint. And who will give the executive the power to punish jurors for returning the "wrong" verdict when they acquit? Are you actually ready to make the proposal?
| | | Courtroom Procedure Contradicts the Practice
Additionally, court procedures involving juries seem to directly contradict the notion that nullification is central to the jury's function. The Federal Rules of Criminal Procedure dictates that jurors who state an intention to nullify, or who seem likely to nullify should be removed from the jury pool during voir dire or, alternatively, if reported to the judge by a fellow juror after the trial begins, may be dismissed at that point as well. Further, the state can utilize peremptory challenges to remove potential jurors it suspects of harboring strong feelings against the prosecution. If nullifying jurors are intended to provide a moral check on the state's coercive power, it seems contradictory to require jurors opposed to the state's actions to lie under oath, to avoid dismissal by the judge or challenge by the prosecutor, in order to be empanelled.
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>
> |
- Which should have led you to question your premise. But it didn't. It's always easier to assume other people are stupid than to admit that you haven't understood yourself.
| | | Once they are selected, jurors are almost always instructed to reach a verdict based on careful consideration of the facts of the case, and counsel is not permitted to tell them that they can disregard the facts in reaching their verdict. If nullification is, indeed, such an important part of the jury's role, it seems contradictory that the process forbids anyone in the court from telling the jurors about it.
Indeed, jurors are much less likely to unite in moral opposition to the state than they are to simply misunderstand or fail to comprehend testimony and evidence, leading to wrong or arbitrary outcomes.
| | | A jury that deliberates in secret and creates no record of its process may reach a decision based on careful study of the facts. It may nullify in outrage at state action. It may earnestly attempt to interpret the facts alone and fail, reaching a wrong conclusion based on flawed assumptions. Finally, it may act on invidious or irrational prejudices, allowing the defendant's race or counsel's clothes to influence the outcome. The ultimate verdict is binary, and difficult to overturn, and the process as it stands is opaque.
So, it comes to light that the assumption behind this secrecy seems to be that any of these bases for reaching a verdict is currently considered valid. Or alternatively, society gives the same validity to a jury that acts misguidedly as to one that acts with earnest resolve to do good. This is not desirable, when there are alternative paths toward creating change in the state of the law, but it is solely up to the jury to find the facts in as unbiased a manner as possible. For this reason, jury nullification should be discouraged. | |
>
> |
- As though it weren't discouraged already, as you point out above. So by the time you've finished you've managed to work yourself around to having nothing actual to say at all. You need to go back to the place where the problem started, which is the beginning. Until you straighten out your premises you can't really expect to make good progress.
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JonathanFriedmanFirstPaper 4 - 19 Apr 2009 - Main.JonathanFriedman
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< | Performing Legal Magic through the Jury | >
> | The Devalued Practice of Jury Nullification
-- By JonathanFriedman - 19 Apr 2009
Introduction | | | | |
<
< | -- By JonathanFriedman - 27 Feb 2009 | >
> | One may argue that a criminal defendant's right to a jury trial is primarily valuable because a jury of citizens may nullify, or refuse to enforce the state's charges. As Justice Holmes describes in The Path of the Law, when the imposition of laws by a government contradicts the morality of the populace they will “rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it.” However, it may be argued that the exercise of jury nullification is no longer desirable, and, even to the extent that it could be desirable, the actual implementation of nullification is flawed and ineffective. | | | | |
>
> | The Justification for the Practice of Jury Nullification
In his article, Making Juries Accountable (50 Am. J. Comp. L. 477), John D. Jackson proposes two main justifications for a jury to nullify. First, juries were once encouraged to nullify “on their view of whether the defendant deserves to be convicted.” Second, juries would nullify where the jury thought the prosecution was inappropriate, or where the defendant, though guilty, was justified in his actions. Essentially, as Jackson puts it, this jury is acting in the role of the mitigator of penalties.
For example, American colonial juries systematically nullified attempts to prosecute molasses smugglers who ran British blockades to avoid unpopular tariffs. Similarly, many colonial juries refused to convict on charges of sedition against the Crown. However, systematic jury action of this kind is much rarer in modern U.S. courts. | | | | |
<
< | Legal Magic and its Role in the Courts
The role of legal magic, as described by Jerome Frank, has to a large extent transcended new developments in the application of justice for thousands of years. Long ago, the veracity of an accused person’s testimony would be tested by submitting him to a trial by fire, water, or morsel. If, in the eyes of the decision makers, the accused successfully passed his ordeal, he was deemed to be telling the truth. Later, oaths were administered that begged a higher power to smite the oath-taker with a horrible curse if he told a lie. Today, our witnesses swear on bibles before taking the stand; a practice that for a long time lead to the disqualification of atheists as witnesses. In each of these scenarios, we use the magic by resorting to some power beyond our control to guide us in making important decisions, despite the fact that these decisions are, nevertheless, completely subjective. Our fears, doubts, and ignorance combine to compel us to need an illusion to give credence to a system of justice. | >
> | Transitions and Revelations that Lead to Devaluing | | | | |
<
< |
- This is not really historically accurate. Why is giving a less than responsible account of historical development the best use of this crucial first paragraph?
| >
> | Jury Nullification is not as Relevant as it Once Was | | | | |
<
< | In Courts on Trial, Frank examines the fallacy of the belief that judges are predictable in their decision making. The claim that an adherence to legal rules delivers us from a need for magic is excoriated as nonsense, in light of the fact that the interpretation of facts is inherently subjective. We use the swearing in of witnesses to provide the illusion of truth, but even assuming that all testimony is given in the most sincere and complete form possible, two fact-finders could (and often do) still end up disagreeing on what actually happened. This means that there is no reason to believe that any individual ruling on the facts of a case lines up with what actually occurred. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.” | >
> | Expressing Consensus Views through the Jury is Unlikely to be Successful | | | | |
>
> | Today, broad consensus of the sort that colonists felt against the British is a much less common phenomenon. Since democratic institutions are created to be responsive to the will of the people, unlike the Crown, the state's position will generally conform to that of a significant portion of the populace. Thus, the issues most likely to inspire jurors to nullify will be politically divisive among the population, rather than opposed by most people. | | | | |
<
< | What is the evidence that juries perform magic (or rather that we perform magic through juries)?
In the United States, we have created a right to a trial by jury in through the ratification of the 6th Amendment to the Constitution. At the time of the amendment’s creation, the framers sought a way to place a public check on the powers of the government in deciding and adjudicating matters. They believed that the jury would prevent the abuse of the citizens by the aristocratic ruling class of the government through the judiciary. | >
> | Mechanisms of Change that are More Appropriate and Effective Now Exist | | | | |
<
< |
- This is not close to historically or legally accurate. It implies that the jury is an American invention, or that some legal innovation is occurring.
| >
> | It is not clear that, in a system where the lawmaking branches are responsive to popular will, jury nullification is necessary at all. The importance of requiring the exhaustion of the established channels of seeking change is a principle established in American legal doctrine, as demonstrated by Justice Stewart’s opinion in Walker v. City of Birmingham (388 U.S. 307). To the extent that the community widely believes that a law is unfair, voters can apply democratic pressures on lawmaking institutions. And even when juries nullify laws that are sanctioned by the popular majority, and even where the law is unjust, such nullification will be sporadic and random, rather than systematic and effective. | | | | |
<
< | Juries were created to protect the citizens of the U.S. against the potential tyranny of the government. At that time, the definition of what it meant to be a “person” under the law was starkly different from our conception today. Now, we are far more concerned about the prejudices of the jury members based on race, class, religion, or even age or about the fact that jurors cannot comprehend complex issues than we are about judges who might abuse the gavel. | >
> | Courtroom Procedure Contradicts the Practice | | | | |
<
< |
- This might be history or it might not; one can no longer tell.
| >
> | Additionally, court procedures involving juries seem to directly contradict the notion that nullification is central to the jury's function. The Federal Rules of Criminal Procedure dictates that jurors who state an intention to nullify, or who seem likely to nullify should be removed from the jury pool during voir dire or, alternatively, if reported to the judge by a fellow juror after the trial begins, may be dismissed at that point as well. Further, the state can utilize peremptory challenges to remove potential jurors it suspects of harboring strong feelings against the prosecution. If nullifying jurors are intended to provide a moral check on the state's coercive power, it seems contradictory to require jurors opposed to the state's actions to lie under oath, to avoid dismissal by the judge or challenge by the prosecutor, in order to be empanelled. | | | | |
<
< | The idea that the jury, as an institution, contributes to the fair or correct outcome of a case is magical thinking. The reasoning of juries is completely opaque, and we have no choice but to protect the jury deliberation with an iron curtain. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential). | >
> | Once they are selected, jurors are almost always instructed to reach a verdict based on careful consideration of the facts of the case, and counsel is not permitted to tell them that they can disregard the facts in reaching their verdict. If nullification is, indeed, such an important part of the jury's role, it seems contradictory that the process forbids anyone in the court from telling the jurors about it.
Indeed, jurors are much less likely to unite in moral opposition to the state than they are to simply misunderstand or fail to comprehend testimony and evidence, leading to wrong or arbitrary outcomes. | | | | |
<
< |
- Is this true? Why is it true?
| >
> | Jury Nullification is Ineffective
Jerome Frank, in The Role of the Courts, explained that the very necessity of transmitting information between witness and fact-finders leads to unavoidable misinterpretation. Frank contends that it requires magical thinking to assume that a jury is capable of analyzing the facts and reaching a sound decision based on the objective evidence. Witnesses routinely fail to “reproduce mechanically the events which they saw and heard,” and, further, “judges or juries are fallible witnesses of the fallible witness.” In other words, witnesses are likely to get the facts wrong, and even when the witnesses get things right, juries are likely to misunderstand them. | | | | |
<
< | We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit, but in the process, we leave more up to chance than the founders imagined. | >
> | Conclusion
A jury that deliberates in secret and creates no record of its process may reach a decision based on careful study of the facts. It may nullify in outrage at state action. It may earnestly attempt to interpret the facts alone and fail, reaching a wrong conclusion based on flawed assumptions. Finally, it may act on invidious or irrational prejudices, allowing the defendant's race or counsel's clothes to influence the outcome. The ultimate verdict is binary, and difficult to overturn, and the process as it stands is opaque. | | | | |
<
< |
- What has happened to jurors since the beginning of the Republic? Had they some different understanding of what a jury is and what it does?
The Enigma of the Voir Dire: An Injection of Science?
The voir dire system of choosing juries is dominated by the use of highly trained consultants to provide detailed data on demographics to allow the lawyers to choose a jury that will be statistically likely to rule favorably.
- "Dominated" is an exaggeration. There has to be either a great deal of money or a rich man's freedom at stake before consultants enter the picture.
This in no way reflects the interest in having a cross-section of the community deciding cases that has been so adamantly proponed
in standing case law. There is something unsettling about being able to predict the outcome of a case with some degree of certainty before the opening arguments are ever given. This is quite possibly an evolution that was unforeseeable to Frank in 1949.
- Because it wasn't true in the local courts of the eighteenth century? Have juries ever been more predictable than they were when they came from small face to face societies in which everyone was known to everyone else? The anonymous big-city jury of 19th and 20th century America is the outlier. Your logic needs to adjust to the reality.
Frank did acknowledge that even in cases of property law that were once thought to be subject to consistent outcomes, “the pulchritude of the plaintiff or his religion or his economic status or the manners of the respective attorneys, or the like, may well be the determining factor inducing the decision.” Consequently, we have a system in which lawyers are compelled to acquire cosmetic surgery such as chin implants and face lifts in order to look more appealing to jurors.
- *Compelled*? What do you think is the chin implant per litigator ratio in the US? 0.95 or 0.0001?
Conclusion: Is the system defensible anyway?
- It is usually a mistake to conclude on a question. It is usually a mistake to ask a question ending in "anyway." It is really a mistake to combine these two mistakes.
It may be true that juries cannot be trusted to make correct decisions, and their lines of reasoning are not subject to public scrutiny. However, the jury, in its most ideal sense, provides a fluid way of keeping changes in public sentiments involved in the everyday actions of our government that is not available in other branches that are affected by the public’s opion only very slowly. As Frank suggests, we cannot avoid having a modicum of magic involved in the system. Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law.
- So after all this tub-thumping you're going to end up concurring on other grounds? Including an agreement that we cannot avoid having a modicum of bullshit in the middle of our system of truth-finding? Why did you bother pretending that you were willing to ask daring questions if the only catch was that you weren't willing to discover daring answers?
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>
> | So, it comes to light that the assumption behind this secrecy seems to be that any of these bases for reaching a verdict is currently considered valid. Or alternatively, society gives the same validity to a jury that acts misguidedly as to one that acts with earnest resolve to do good. This is not desirable, when there are alternative paths toward creating change in the state of the law, but it is solely up to the jury to find the facts in as unbiased a manner as possible. For this reason, jury nullification should be discouraged. |
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JonathanFriedmanFirstPaper 3 - 26 Mar 2009 - Main.IanSullivan
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| | | Legal Magic and its Role in the Courts
The role of legal magic, as described by Jerome Frank, has to a large extent transcended new developments in the application of justice for thousands of years. Long ago, the veracity of an accused person’s testimony would be tested by submitting him to a trial by fire, water, or morsel. If, in the eyes of the decision makers, the accused successfully passed his ordeal, he was deemed to be telling the truth. Later, oaths were administered that begged a higher power to smite the oath-taker with a horrible curse if he told a lie. Today, our witnesses swear on bibles before taking the stand; a practice that for a long time lead to the disqualification of atheists as witnesses. In each of these scenarios, we use the magic by resorting to some power beyond our control to guide us in making important decisions, despite the fact that these decisions are, nevertheless, completely subjective. Our fears, doubts, and ignorance combine to compel us to need an illusion to give credence to a system of justice. | |
>
> |
- This is not really historically accurate. Why is giving a less than responsible account of historical development the best use of this crucial first paragraph?
| | | In Courts on Trial, Frank examines the fallacy of the belief that judges are predictable in their decision making. The claim that an adherence to legal rules delivers us from a need for magic is excoriated as nonsense, in light of the fact that the interpretation of facts is inherently subjective. We use the swearing in of witnesses to provide the illusion of truth, but even assuming that all testimony is given in the most sincere and complete form possible, two fact-finders could (and often do) still end up disagreeing on what actually happened. This means that there is no reason to believe that any individual ruling on the facts of a case lines up with what actually occurred. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.”
What is the evidence that juries perform magic (or rather that we perform magic through juries)?
In the United States, we have created a right to a trial by jury in through the ratification of the 6th Amendment to the Constitution. At the time of the amendment’s creation, the framers sought a way to place a public check on the powers of the government in deciding and adjudicating matters. They believed that the jury would prevent the abuse of the citizens by the aristocratic ruling class of the government through the judiciary. | |
>
> |
- This is not close to historically or legally accurate. It implies that the jury is an American invention, or that some legal innovation is occurring.
| | | Juries were created to protect the citizens of the U.S. against the potential tyranny of the government. At that time, the definition of what it meant to be a “person” under the law was starkly different from our conception today. Now, we are far more concerned about the prejudices of the jury members based on race, class, religion, or even age or about the fact that jurors cannot comprehend complex issues than we are about judges who might abuse the gavel. | |
<
< | The idea that the jury, as an institution, contributes to the fair or correct outcome of a case is magical thinking. The reasoning of juries is completely opaque, and we have no choice but to protect the jury deliberation with an iron curtain. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential). | >
> |
- This might be history or it might not; one can no longer tell.
The idea that the jury, as an institution, contributes to the fair or correct outcome of a case is magical thinking. The reasoning of juries is completely opaque, and we have no choice but to protect the jury deliberation with an iron curtain. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential).
- Is this true? Why is it true?
| | | We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit, but in the process, we leave more up to chance than the founders imagined. | |
>
> |
- What has happened to jurors since the beginning of the Republic? Had they some different understanding of what a jury is and what it does?
| | | The Enigma of the Voir Dire: An Injection of Science? | |
<
< | The voir dire system of choosing juries is dominated by the use of highly trained consultants to provide detailed data on demographics to allow the lawyers to choose a jury that will be statistically likely to rule favorably. This in no way reflects the interest in having a cross-section of the community deciding cases that has been so adamantly proponed in standing case law. There is something unsettling about being able to predict the outcome of a case with some degree of certainty before the opening arguments are ever given. This is quite possibly an evolution that was unforeseeable to Frank in 1949. | >
> | The voir dire system of choosing juries is dominated by the use of highly trained consultants to provide detailed data on demographics to allow the lawyers to choose a jury that will be statistically likely to rule favorably.
- "Dominated" is an exaggeration. There has to be either a great deal of money or a rich man's freedom at stake before consultants enter the picture.
This in no way reflects the interest in having a cross-section of the community deciding cases that has been so adamantly proponed
in standing case law. There is something unsettling about being able to predict the outcome of a case with some degree of certainty before the opening arguments are ever given. This is quite possibly an evolution that was unforeseeable to Frank in 1949.
- Because it wasn't true in the local courts of the eighteenth century? Have juries ever been more predictable than they were when they came from small face to face societies in which everyone was known to everyone else? The anonymous big-city jury of 19th and 20th century America is the outlier. Your logic needs to adjust to the reality.
| | | Frank did acknowledge that even in cases of property law that were once thought to be subject to consistent outcomes, “the pulchritude of the plaintiff or his religion or his economic status or the manners of the respective attorneys, or the like, may well be the determining factor inducing the decision.” Consequently, we have a system in which lawyers are compelled to acquire cosmetic surgery such as chin implants and face lifts in order to look more appealing to jurors. | |
>
> |
- *Compelled*? What do you think is the chin implant per litigator ratio in the US? 0.95 or 0.0001?
| | | Conclusion: Is the system defensible anyway? | |
<
< | It may be true that juries cannot be trusted to make correct decisions, and their lines of reasoning are not subject to public scrutiny. However, the jury, in its most ideal sense, provides a fluid way of keeping changes in public sentiments involved in the everyday actions of our government that is not available in other branches that are affected by the public’s opion only very slowly. As Frank suggests, we cannot avoid having a modicum of magic involved in the system. Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law. | | | | |
>
> |
- It is usually a mistake to conclude on a question. It is usually a mistake to ask a question ending in "anyway." It is really a mistake to combine these two mistakes.
It may be true that juries cannot be trusted to make correct decisions, and their lines of reasoning are not subject to public scrutiny. However, the jury, in its most ideal sense, provides a fluid way of keeping changes in public sentiments involved in the everyday actions of our government that is not available in other branches that are affected by the public’s opion only very slowly. As Frank suggests, we cannot avoid having a modicum of magic involved in the system. Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law. | | | | |
<
< |
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>
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- So after all this tub-thumping you're going to end up concurring on other grounds? Including an agreement that we cannot avoid having a modicum of bullshit in the middle of our system of truth-finding? Why did you bother pretending that you were willing to ask daring questions if the only catch was that you weren't willing to discover daring answers?
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JonathanFriedmanFirstPaper 2 - 28 Feb 2009 - Main.JonathanFriedman
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Performing Legal Magic through the Jury |
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JonathanFriedmanFirstPaper 1 - 27 Feb 2009 - Main.JonathanFriedman
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Performing Legal Magic through the Jury
-- By JonathanFriedman - 27 Feb 2009
Legal Magic and its Role in the Courts
The role of legal magic, as described by Jerome Frank, has to a large extent transcended new developments in the application of justice for thousands of years. Long ago, the veracity of an accused person’s testimony would be tested by submitting him to a trial by fire, water, or morsel. If, in the eyes of the decision makers, the accused successfully passed his ordeal, he was deemed to be telling the truth. Later, oaths were administered that begged a higher power to smite the oath-taker with a horrible curse if he told a lie. Today, our witnesses swear on bibles before taking the stand; a practice that for a long time lead to the disqualification of atheists as witnesses. In each of these scenarios, we use the magic by resorting to some power beyond our control to guide us in making important decisions, despite the fact that these decisions are, nevertheless, completely subjective. Our fears, doubts, and ignorance combine to compel us to need an illusion to give credence to a system of justice.
In Courts on Trial, Frank examines the fallacy of the belief that judges are predictable in their decision making. The claim that an adherence to legal rules delivers us from a need for magic is excoriated as nonsense, in light of the fact that the interpretation of facts is inherently subjective. We use the swearing in of witnesses to provide the illusion of truth, but even assuming that all testimony is given in the most sincere and complete form possible, two fact-finders could (and often do) still end up disagreeing on what actually happened. This means that there is no reason to believe that any individual ruling on the facts of a case lines up with what actually occurred. Whereas in the past we placed the truth finding burden on the “knees of the gods,” now we place it on the “knees of men.”
What is the evidence that juries perform magic (or rather that we perform magic through juries)?
In the United States, we have created a right to a trial by jury in through the ratification of the 6th Amendment to the Constitution. At the time of the amendment’s creation, the framers sought a way to place a public check on the powers of the government in deciding and adjudicating matters. They believed that the jury would prevent the abuse of the citizens by the aristocratic ruling class of the government through the judiciary.
Juries were created to protect the citizens of the U.S. against the potential tyranny of the government. At that time, the definition of what it meant to be a “person” under the law was starkly different from our conception today. Now, we are far more concerned about the prejudices of the jury members based on race, class, religion, or even age or about the fact that jurors cannot comprehend complex issues than we are about judges who might abuse the gavel.
The idea that the jury, as an institution, contributes to the fair or correct outcome of a case is magical thinking. The reasoning of juries is completely opaque, and we have no choice but to protect the jury deliberation with an iron curtain. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. Although I concede to Frank that trial judges are not transparent in their decisions about subjective facts, they must provide enough rationale for their decisions to protect them against being overturned on the appellate level (even if the standard of review is highly deferential).
We are forced to blind ourselves with the illusion that jury decisions are fair, because any alternative threatens to bring down our ideas about democracy. We want to believe that there is a role for the populace in the judicial process beyond being merely a party to a suit, but in the process, we leave more up to chance than the founders imagined.
The Enigma of the Voir Dire: An Injection of Science?
The voir dire system of choosing juries is dominated by the use of highly trained consultants to provide detailed data on demographics to allow the lawyers to choose a jury that will be statistically likely to rule favorably. This in no way reflects the interest in having a cross-section of the community deciding cases that has been so adamantly proponed in standing case law. There is something unsettling about being able to predict the outcome of a case with some degree of certainty before the opening arguments are ever given. This is quite possibly an evolution that was unforeseeable to Frank in 1949.
Frank did acknowledge that even in cases of property law that were once thought to be subject to consistent outcomes, “the pulchritude of the plaintiff or his religion or his economic status or the manners of the respective attorneys, or the like, may well be the determining factor inducing the decision.” Consequently, we have a system in which lawyers are compelled to acquire cosmetic surgery such as chin implants and face lifts in order to look more appealing to jurors.
Conclusion: Is the system defensible anyway?
It may be true that juries cannot be trusted to make correct decisions, and their lines of reasoning are not subject to public scrutiny. However, the jury, in its most ideal sense, provides a fluid way of keeping changes in public sentiments involved in the everyday actions of our government that is not available in other branches that are affected by the public’s opion only very slowly. As Frank suggests, we cannot avoid having a modicum of magic involved in the system. Perhaps the jury, although not a bastion for impartiality or substantial fairness, provides the most comfortable medium for us to contain the inevitable abundance of unpredictability in the law.
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