There are many constitutionally permissible formulations of the reasonable doubt jury instructions. Am. Jur. 2nd Trial § 1159. None contain language encouraging the jury to escape the cognitive biases that attend the evaluation of low probabilities. For example, Prospect Theory suggests that people tend to “neglect or underweight outcomes that occur with very small probabilities. Cf. here Suppose that the sum total of the evidence presented to an ordinary juror at trial suggest a 1% probability that the defendant is actually innocent of the alleged crime. (Putting aside, for the moment, questions of whether an exact probability like 1% can be properly represented; presumably, cognitive representations of probabilities are fuzzier than that.) The juror will tend to discount this probability to a negligible amount, perhaps zero. To the juror, the probability that the defendant is innocent will “feel like” zero, even though if the juror had to put a number on it, she would call it a 1% probability. A juror in this position would convict. Of course, this violates what most people would want the reasonable doubt standard to do: at least for serious crimes, we would be very uncomfortable knowing that one of every hundred people jailed was innocent. According to prospect theory, and the studies that confirm it, all low probabilities are downgraded. Assume that the jurors in any given trial construct some probability of innocence based on the evidence and that these probabilities, while subjectively determined, are not random but nevertheless vary around a mean. In cases where the probability of innocence is low, jurors will systematically underweight these probabilities downward. To the extent that subjective determinations of the probability of innocence go into jurors’ decisions of whether or not to vote for acquittal, the cognitive tendency to underweight low probabilities will cause more jurors to vote for guilty than is justified by _their own_ subjective weighting of the evidence.

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

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

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

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

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

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

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

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

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

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

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

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

Here are some other things that have always struck me about the jury and trial system. 3) Peremptory strikes -

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-- By MichaelBerkovits - 10 Feb 2008

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