Tuesday, November 21, 2006

Definitional Shift -- Jury Reform Pt. II

It is amazing what the passage of time can do to the meaning of a word. Consider, for example, the simple word "jury." Article III, Sec. 2, the Sixth Amendment, and the Seventh Amendment all guarantee Americans the right to a jury in certain trial situations. And, clearly, the Founders had something specific in mind when they made these guarantees.

A panel of governmental employees wouldn't qualify as a jury. Or would it?
A panel of inquisitors certainly wouldn't qualify as a jury. Or would it?
A computer bank could not qualify as a jury. Or would it?

Of course, the answers to these questions all depend on what a jury IS. Yet, strangely, the jury reformers do not care what the historical meaning and role of a jury is. They want to write on a blank slate to create the "ideal" jury. Or at least, the closest to an "ideal" jury they believe they can get away with.

During the October ABA Jury Symposium, I asked the members of a panel chaired by Professor Stephan Landsman, a jury historian and member of the ABA jury reform committee, whether the committee had considered historical norms in assessing their suggested reforms. The answer was resoundingly no. As a matter of fact, even Prof. Landsman seemed surprised anyone asked such a question. Yet to me, it goes to the very heart of the matter.

Clearly, the Founders had something specific in mind when they thought of trial by jury. They did not think of any panel of any number of people selected by any procedure deemed expedient. They had an image of an ideal jury in their mind - yet instead of attempting to stay true to this image, to perfect it, and to debate what it may have been from the historical record, we have allowed social scientists to play with the system, to re-invent it according to the results of their research.

I should point out that little of this research is even peer reviewed.

I will posit the following concepts, for consideration by readers:

1. Many of the problems with the jury system (lack of respect for juries, failure of people summonsed to jury duty to appear for service, dissatisfaction among jurors) are the fruits of past reforms. Through the years we have disempowered and "dumbed down" the jury. We have limited what can be argued to the jury, micromanaged them, and found every possible excuse (at least on the civil side) to take cases away from them. We have taken many turns in the wrong direction - so instead of reversing course, we have decided to turn to social scientists to blaze a new trail (new trial?). This untried, untested new trial is likely to be far bumpier than the experts are predicting. After all, remember the experts who described the war in Iraq as a "cakewalk?" This is a far more serious proposition, however, than a mere war: this is the American Jury System, a cornerstone of American democracy.

2. The American Jury System has existed for over 230 years. There is a lengthy historical record that can be studied to see what procedures have been applied over the decades, and how jurors have responded to them. We can see what worked, what didn't, what changed, and why. Must we not avail ourselves of that record as fully as possible before resorting to blind faith in the social scientists who would re-define the historical jury system nearly out of existence?

3. If we allow the jury system to be dramatically re-defined now, will it be re-re-defined in another five or ten years? How many dramatic re-definitions can it survive? Is a call for specialized training on the horizon? A call for a Juror's Union, or perhaps aptitude tests? Perhaps a "jury" should merely be a panel of government employees - Judges Light - or perhaps they should be specially trained fact-finders. Perhaps a computer connected to a polygraph machine (to test the witnesses) could be called the JURY (Justice User Resource for YOU). The computer could generate the questions AND test the witnesses, and be programmed with the law. (With a little work it could impose electric shock therapy to both punish AND rehabilitate criminals on the spot, as legal error would be impossible...)

Now, suggestion 3 ended on a creative note, but if anyone believes no social scientists or political scientists can be found who would applaud such a machine, they are incredibly naive. IF the sole job of a jury is to find the TRUTH, as the social scientist consensus runs, then there is no need for a lay jury of average citizens. A machine can do a much better job...

The ABA JURY PROJECT is headed down a slope that is far steeper and far more slippery than those intimately involved in it will admit - because they refuse to look at either their own fallibility or the fallibility of their disciplines. Let us be a little more humble. Let us trust in the wisdom of the Founders, and not in the wisdom of the statisticians, and let us return to their version of the Jury.

It is, after all, our legacy. We have failed in our duty to protect it, but the fact that it is tarnished is not enough to destroy its value. It can be polished right back up to its original condition and operation, with no more work -- and with far better results -- than those involved in its reinvention.

Monday, November 06, 2006

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.