Friday, April 13, 2007

An Interesting Conversation on Rights, Powers, and Lies

Mark Bennett, a Houston criminal defense attorney, recently started a conversation on State's Rights. His position is that the State has no rights; the State has powers. While his examination of the subject has some flaws (he claims rights cannot be maintained using force, a statement I find questionable: if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?) I think Mark touches on a very real issue, that I like to call the rights/powers dichotomy. It arises quite often in law. It is said that someone has a power to breach a contract, but not the right to do so (hence, they can be sued and forced to pay damages should they exercise their power.)

Clearly, not all powers are rightfully exercised. Others may be. Does the rightful exercise of a power imply, or even prove, the existence of a right?

Specifically, do jurors have rights - or just powers? It is commonly said that jurors have the power, but not the right, to nullify. But is there a substantive difference between a lawfully exercised power and a right? If so, what is this difference? Or is it just a way of saying that we consider some lawfully exercised powers to be on a higher plane than others, so we call them rights -- even though their exercise is indistinguishable?

In other words, is the rights/powers dichotomy a real dichotomy, or a false dichotomy? A false dichotomy exists when a debater attempts to position two things as opposites (either a right or a power) when they are not incompatible. In fact, are rights not powerful things?

The distinction between juror rights and juror powers, viz a viz jury nullification, is used to justify instructing jurors that the do not have this prerogative, and for denying lawyers a chance to voir dire jurors on it or mention it in argument. This does not affect the rights or powers of the jurors, however: it only affects the rights or powers of litigants and their lawyers.

Jurors do not lose any lawful options in the jury box merely because they have not been informed of them: it merely leaves those who were not already aware of their existence in a state of ignorance regarding them. The rights that have been denied are those of the litigants, who no longer have the legal right to demand an instruction on the jury's prerogative, or the right to inform the jurors of the right during voir dire or argument. Nor do they have the power to do so, if they proceed in doing so they may be disciplined by the Court or a mistrial declared.

The real issue, as I see it, is when the ignorance of jurors is replaced with lies. Jurors do retain the prerogative to nullify: they cannot be punished for their verdict, and a substantial number of jurors do decide not to convict on extra-legal grounds. When a trial court tells a jury that they cannot do this, then the jury is being positively lied to. It is hard to respect a legal system that depends on positively lying to jurors in order to maintain control over their verdict.

Merely because Courts have the power to lie to jurors does not mean they have the right to do so. Until the 1970's, most juries in the US were instructed that if the State proved its case, they may convict, but that if they had a reasonable doubt, they must acquit. This is sufficient to acknowledge the independence of the jurors, without raising a distractive debate about jury nullification. It is honest.


At 7:04 PM, Anonymous B, Michael Dann said...

I mostly agree with your position on the historical and constitutional role of the jury's acquiting a criminal defendant, despite being instructed that they "must" convict when the proof is evident. See "The Constitutional and Ethical Implications of 'Must-Find-the-Defendant-Guilty' Jury Instructions" B. Michael Dann
(Published in Jury Ethics: Juror Conduct and Jury Dynamics 2006,
Edited by John Kleinig , James P. Levine) [Contributors: Jeffrey Abramson, B. Michael Dann, Shari Seidman Diamond, Norman J. Finkel, Paula Hannaford-Agor, Valerie P. Hans, Julie E. Howe, Nancy J. King, Candace McCoy, G. Thomas Munsterman, Maureen O’Connor, Steven Penrod, Alan W. Scheflin, Neil Vidmar]

Some of these contributors are social scientists who served on the ABA's American Jury Project, which authored the ABA Principles on Juries and Jury Trials. You criticized the ABA Principles "tinkering" with the jury of history and setting us on the "slippery slope" of decline of the jury trial. The only innovation you take issue with is the one permitting jurors to put written questions to witnesses by submitting them to the judge for screening and objections by counsel out of the hearing of the jurors. Experience with this reform, and empirical data collected about that real-world experience, contradict your unsupported assumptions that permitting juror questions will turn jurors into advocates, that jurors will form resentments when their questions are not asked of witnesses, that jurors with take the case down blind alleys, and that jurors might "make or break" a party's case.

Mr Conrad: I know my post deals with two separate blogs. I trust you can format this comment to fit.

At 7:27 PM, Blogger Clay S. Conrad said...

While that is what I focused on, I have other issues as well. Jury questioning of witnesses, mid-trial jury instructions and argument, opening up the case for deliberations before all the evidence is in... all of those change the way in which a jury works.

Meanwhile, there is no evidence at all that the LACK of any of these reforms has in any way contributed to the decline in use of the criminal trial jury. That is critical: there is no showing that if these reforms were in place, that there would be a single additional jury trial held.

So what's the point? To tinker for the sake of trying out a social scientist's theory.

I have nothing against allowing social scientists to measure and assess -- but to imagine that they have the wisdom and insight to alter the functioning of this most delicate and important of institutions is just arrogance. Mock jury trials, post-trial interviews, and the other tools available to them are too crude to measure the actual responses and thoughts and impulses and motivations going through real jurors minds.

Perhaps, just perhaps, if you could do real-time PET scans of all 12 jurors, during enough recorded deliberations, you could start to know enough to reliably make the sorts of changes that these "innovators" recommend. I don't know anyone who has tried that...

Instead of using their insights to help LAWYERS do a better job with the existing institution of trial by jury, the "innovators" are trying to improve the JURY through innovations that are unnecessary and dangerous. The real irony? Many of them are involved in law school teaching -- training those same lawyers who do not do a good enough job communicating to get their message across to the real live jurors we have today!

At 12:43 AM, Blogger DudeFromMars said...

Please write some new posts.
I miss the Jury Geek!

At 10:49 AM, Blogger jigmeister said...

I don't think there is anything wrong with submiting questions through the court from the jury. It could be done before a witness is excused, and limited by the court to insure minimal interuption and admissibility. The aim of a trial is truth and every time I have interviewed a jury after trial they had questions that I could have answered had I thought of them.

At 11:43 AM, Blogger jcr said...

" When a trial court tells a jury that they cannot do this, then the jury is being positively lied to. "

This raises an interesting point: is the judge under oath? Does lying to the jury about their prerogative constitute perjury?

Witnesses are sworn, lawyers are not. Does this mean that the lawyers may lie?


At 10:44 AM, Blogger James Ray Kenney said...

I am on jury duty now and as part of the oath, we had to swear that we would follow the judges instructions exactly, and not to rule on anything except the facts. We were also told that we are the judges of the facts only, and that the Judge was the only judge of the law. It would seem that they took away our powers with that oath, unless we are willing to violate our oath and risk prosicution


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