The Return of Jurygeek!!!
Hello, patient readers. Yes, I have been busy elsewhere these last six months or so. After attending the New Orleans Jazz and Heritage Festival last April, I have used these last six months to agitate towards rebuilding that fair city. For those who have never visited that city, or have not been back since 8/29 (a day that should live in at least as much infamy as 9/11), I heartily recommend that you do so - and there is no better opportunity to do so than at Jazzfest, the nations preeminent live music event.
Be that as it may, on October 26-27 of this year I attended the ABA Jury Symposium at the Southern Methodist University Dedman School of Law. The event raised many concerns in Jurygeek's mind. While I generally applaud the efforts of the ABA in advocating for increased use of the jury to adjudicate legal cases, I find it troubling that the process appears to have been hijacked by social scientists. I believe in restoring the role of the American Jury: I do not support efforts to redefine that role in ways that have no historical precedent. Yet, unfortunately, the tendency to tinker has taken over. Many of the "innovations" I heard applauded may well do more harm than good.
Let me make it clear that I do not believe that any of the top tinkers are malevolent: I have nothing but respect for Thomas Munsterman (an engineer who has made a second career for himself out of studying the jury system) and Shari Siedman Diamond (a law professor and psychologist who has studied juries for decades.) Yet I believe that they are guiding this process in a direction that will eventually lead to DIMINISHED respect for and DIMINISHED use of the jury system, and a DECREASED willingness of jurors to appear for jury duty.
Let me mention some of the most troubling "innovations" being promoted as part of this process: first would be questioning of witnesses by jurors. Now, this is troubling for many reasons. A juror who starts taking an ACTIVE role in questioning has, by that one change, become something other than an objective judge. The juror has started taking over for at least one of the sides, he has started blazing his own path towards "the truth." If his questions are rejected, he may well know which side would be more likely to object, and thus may form a grudge; he may also concentrate more on re-forming the question than on listening to the evidence.
I heard calls for computers in the jury room, and that all the technology in the courtroom should be available to the jury. A frightening concept. Few lawyers know how to run accident reconstruction software: should jurors be provided with an expert who can re-draw the reconstruction based on a number of possible scenarios? Really, this slippery slope leads directly to replacing our adversarial system of jurisprudence with an inquisitorial system. It appears unthinkable if not insane to start down that path.
I am troubled by the concept that a trial is "a search for the truth," as we heard repeatedly at the symposium, and not a search for justice. We do not and cannot know the absolute truth about anything at trial; all we can know is the likelihoods the credible evidence presents.
A search for truth abandons concepts such as the burden of proof, or even leaving that burden on the parties. A pary who fails to meet his burden, only to have an inquiring juror make the burden for him, still did not meet his burden. Again, these reforms appear to be aimed not at "improving" the jury system, but at allowing the jury system to function in a world of incompetent and incoherent lawyers. Perhaps what we need are not jury reforms, but reforms in the dysfunctional world of legal education.
The concept of a trial as a "search for the truth" also invites consideration of extraneous evidence, such as prior convictions, etc., that are irrelevant to the case at hand but appear quite influential in determining where the "truth" is more likely to lie. This concept, while superficially appealing, in practice becomes a "trial as a search for what looks true at the time."
We have all had occasions when our attempts to present a coherent story have been screwed up by questions that were peripheral to the story at hand. Do these help to get the truth out? I don't think so. Yet this is what is likely to occur in trials with open jury questioning -- and they are as likely to disrupt and derail the case as to enlighten, leading to a situation in which no truth can be discerned from the rag-tag pile of disjointed evidence admitted.
The historical use of a trial to test the evidence should not be undermined so easily, regardless of what the social science may show. We are not looking at a muffler that can be re-designed at whim, but at what may be THE bedrock institution of American democracy. We should no more re-engineer the jury system based on the views of a small group of social scientists (the insiders, who may well be refuted by the outsiders) than we should re-draft the Constitution based on opinion polls.
The Founders left us with an adversarial legal system, believing that the truth is best discerned by allowing two opposing parties to present their best case. Social scientists now disagree with the Founders conclusion, and seek to reform the jury system, yet again, according to their vision as to how it should operate. And there are almost no voices raised in opposition.
We have not insisted that the word "jury," as used in the Constitution and Bill of Rights, carry any historical baggage: it has been an empty bucket that each State, and sometimes each judge, could redefine at whim. We now have only a remnant of the jury as the Founders knew it; lawyers are not permitted to argue law before the jury; jury deliberations are micromanaged through judicial instructions; very often more potential jurors are excluded than are deemed qualified to serve; whole categories of cases are excluded from the jury trial right, either by law (FISA) or by contract (arbitration clauses.) We have naively limited the amount juries can provide in damages, regardless of the facts, in many categories of cases.
We have reformed the jury practically out of existence.
Many, if not most, of the damage to the jury system today are the result of reforms of the past, well-intentioned, but poorly understood. Piling more reforms on top of past ones risks making a bad situation worse. What the jury system needs is to be restored to its former glory - not "reformed" to a new level of "perfection" by social scientists. Yet I am in the minority, sadly, I think, and, from my perspective the future does not look pretty.