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.

• 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.

• 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.

• "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?