Remedying Legal Magic

-- Originally By JonathanFriedman - 27 Feb 2009

Introduction to The Role of Legal Magic

In Courts on Trial, Jerome Frank honestly examines the unspoken imperfections of our legal system. At the core of his argument is the observation that actors within our legal system are human beings, prone to imprecision and subjectivity. Further, in order to compensate for inadequate knowledge and a lack of certainty, our legal system relies upon mechanisms such as juries, which are ordained with a magical significance similar to "ordeals" in centuries past. 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.” While some might argue that such, "candor about courthouse ways is unwise," I would argue that such a candid observation can encourage a more well-refined public policy that compensates for judicial shortcomings.

Subjectivity and Inaccuracy Are Unavoidable

Subjectivity and inaccuracy within are unavoidable in our legal system, since as Holmes's observed, "behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment… the very root and nerve of the whole proceeding." As Frank would argue, when we do not understand or cannot clearly articulate a concept, we use a mythical or magical justification to explain it. This level of subjectivity exists in both the fact finding and decision making stage of our courts.

During fact finding, for instance, juries are given a prominent and mythical significance, despite the fact that juries do not necessarily contribute to a fair or just outcome. Death penalty cases seem to be the most poignant example; juries often come to discriminatory and simply wrong conclusions. For example, juries are empirically more likely to recommend the death penalty for an African American accused of killing a white individual, than for African Americans accused of the same crime against a member of their own racial group. And yet, in McClesky v. Kemp, our Supreme Court determined that such observable discrimination does not make the death penalty unconstitutional. Further, 131 people in this country have been sentenced to death, only to later be exonerated or pardoned.

Despite the apparent imperfections with the jury system, our society continues to believe in its efficacy, giving the institution incredible power with relatively little oversight. The discussions held during jury deliberations are completely secret, and we choose to protect these discussions from being read by counsel after trial. This means that while new trials can be granted for improper process, the reasoning of a jury is unassailable. 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. Of course in the process, we risk falsely convicting an innocent individual.

In addition, the voir dire system of choosing juries provides another example of the imperfections evident in the legal system. The rich are able to use use highly trained consultants to select a jury that will be statistically likely to rule in their favor. Moreover, we cannot escape the reality that the quality of counsel often depends on wealth.

In terms of decision-making, judges are often viewed as referees who apply rigid doctrine to reach a fair, impartial conclusion. This belief is admittedly comforting to society as a whole. We would like to believe the courts at all levels are free from the subjective and prejudicial influences that often affect the political branches of our government. The role of judge itself receives an extremely high level of respect and deference within our society. Yet, judges often base their decisions upon personal judgments and individualized, subjective beliefs.

Possible Remedies

As Frank himself explained, "The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all of our citizens informed as to how the system functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts."

Communicated within this statement are two propositions crucial to remedying flaws within our judicial system. First, not all of these shortcomings can be imminently eliminated, although they must be compensated for in the best manner possible. Second, shortcomings which can be eliminated, must be eliminated immediately.

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. Whether fact-finding is ultimately done by a judge or jury, complete impartiality is impossible. But the jury does provide a legitimately beneficial safety mechanism by requiring unanimity. At the same time, I would argue that the comparative benefit of secretive jury deliberations is outweighed by the potential harm; secret deliberations seem to portray the jury as an institution above certain levels of scrutiny. Although it may be administratively challenging, providing counsel with transcripts of jury deliberations would be a just and positive step.

In addition, I would argue that weakening punishment on many crimes would be a positive step towards acknowledging the limits of our legal system. We know that subjectivity is inevitable and the conviction of the innocent will happen on occasion. Weaker penalties and a focus on rehabilitation as opposed to retribution would be a positive step towards limiting the adverse effects of over-inclusiveness.

But perhaps the ultimate reality is that our legal system is riddled with shortcomings. Our system continually compromises accuracy at the expense of administrative ease. Rather than denying this deficiency, we as a society must be willing to admit to this problem and begin a serious discussion on possible solutions. In the end, part of creating a satisfactory legal system is properly balancing administrative ease with justice.