Better alternatives to a jury of peers

Great Debates
101

I responded to the parts that I wanted to respond to. The sentence parts I quote are just to serve as links back to where I’m replying to.

And they still exist right back where you wrote them, and anyone can click back to them from my quotes of the parts I was highlighting by responding.

Feel free to not respond at all if you don’t like the format I choose to use to organize my thoughts.

Or report me, if you think any of my quotes somehow changed the meaning of what you wrote. Which is the only justification for not chopping up sentences I see as valid when backlinking works so well.

102

You chopped my statements up to avoid responding with full context. I am asking you to please be courteous and not do that.

Stranger

103

I linked to the full context. I responded to the bits I quoted, no more, no less.

Are you perhaps unaware of what the downwards chevron is for in the quote box?

And I’m saying I think it’s an unreasonable request. If it were a rules violation, I would of course do so, but I don’t believe it is, so no, I’m not going to change my long-accustomed posting style to suit you, any more than I would expect you to stop posting in huge blocks of text to please me.

104

Sure, and when it works, it works. It’s certainly not impossible to achieve justice under the US system, and I think it successfully does that most of the time.

However, I disagree with the idea of having laypeople be the deciders of fact in legal matters. I don’t view it as beneficial or desirable. I think the US system works really really hard so that it isn’t an absolute shit show, and it does an admirable job. But that’s like doing gymnastics with one hand tied behind your back. It’s impressive if you can still do it, but you could also just use both hands.

105

This is not even close to being true. I mean, yes, in theory they do control the evidence heard, but they don’t have total discretion in practice like you seem to imply. Most evidence is clearly admissible or clearly inadmissible under the federal rules of evidence (or the local variation). Very little is in a grey zone. If a judge makes a ruling on such evidence that is at odds with established precedent or law, the case will be appealed by the aggrieved party and his ruling overturned.

As for jury instructions, most jurisdictions have established instructions for the types of case at issue. Again, very little discretion for the judge to change such instructions.

106

While I don’t necessarily agree with the sentiment that prompted this thread, I don’t necessarily disagree with it either. Not because the people who serve on juries are stupid because they couldn’t get out of it, but because the general public is, if not stupid, generally poorly informed and possessed of unfounded prejudices. (If it weren’t, we wouldn’t have the federal gov’t we have now, but I digress.)

I was on a jury once, an assault on a police officer case, in Westchester County, NY. About six of us were, in fact, idiots. At the beginning of the trial we were instructed that according to law, the defendant was not required to prove his innocence, but it was the prosecution’s job to prove him guilty. Later on, during deliberations, one woman said, all put-out like, “I don’t understand why he doesn’t have to prove he’s innocent. He should have to prove he’s innocent.” A couple of other folks had the opinion that a citizen should never, ever, question or disobey a police officer. And then there was the racism. The defendant was black, the police officer was white. No one but me, the only black person on the jury, had any inkling that a black person might have reasons to be apprehensive, when stopped for seemingly no reason by the police. (This was in the 1990s.) A few also claimed to having had trouble understanding the defensive attorney, a man with a Jamaican accent, and a very clear speaking voice.

Despite this, and lots of other BS, we did manage to come to a verdict. But for years after that experience, I swore that if I was ever in trouble, I’d prefer to have a judge decide my fate, rather than a jury.

Now that I am older, I console myself with the fact that six of us were in fact, not idiots. Also judges can be corrupt or unsuitable for their profession in other ways. So I think the jury system is probably the best for now.

107

Yes, i don’t think there’s all that much space between our system and one where judges are acknowledged to make the key decisions.

108

If you had read my previous posts closely, you’d see I’m somewhat in agreement. However, having sat through literally many dozens of jury trials over the course of a long career, I’m not nearly as fussed about layperson jurors as you are. They do pretty well most of the time.

You and me both. I did see juries go off the rails a few times in truly scary ways. But as a rule, they managed to lurch their way to a just verdict, as yours did.

Unfortunately, in California where I worked, either party was entitled to a trial by jury. So it was often the case that if a defendant indicated a willingness to waive a jury, the prosecution would insist on one. I don’t know if this is true in all jurisdictions.

109

It’s unsettled. In Washington, as far as I know, it hasn’t been tested. When the defense waives their right to jury, the prosecution is happy to oblige. I had one case where we were headed for a showdown, but the State backed down and we got a judge trial (and an acquittal).

110

That’s interesting! Where I worked, it was sort of a dick tactic used by prosecutors. It sometimes backfired on them, too. As you well know, juries are not always easily led.

Congrats on your acquittal!

111

Of course, the full context of what I wrote (versus the fragment that @MrDibble elected to chop out and respond to) reads like this:

Juries largely deliberate the strength of the evidence and testimony presented. Judges rule on interpretation and application of the law. Where a judge makes an overly narrow interpretation that disfavors the defendant, the defense can appeal the decision to an appellate court to weigh in on whether the ruling was prejudicial or otherwise made it unable for the defense to render a viable defense, i.e. if exculpatory evidence or testimony was excluded, so it is not as if there is not judicial review even within the provenance of the trial court. That is to say, a judge also has to follow rules and can invalidate the jury’s verdict if they exceed their authority or unduly restrict what the jury can access. In general, the system procedurally favors the defense for the presentation of any evidence that casts reasonable doubt and requires the prosecution to turn over all exculpatory evidence or testimony, which is good because the inertia of the system and often unconscious bias and prejudice works against any defendant who can’t afford the best possible defense.

Again, I’m not arguing that it is the best of all possible systems, or necessarily better than a panel of jurists, but labeling layperson juries as a bunch of idiots who couldn’t find reasonable doubt or understand a basic premise of “presumption of innocence” (notwithstanding @Monstera_deliciosa) is just generally wrong. I’ve been on a couple of juries (only on in deliberations on one, and the case was settled before we got to render a verdict; the other I was just an alternate so I wasn’t present during deliberations but the case was an open-and-shut guilty verdict) but people on the jury were attentive, followed judge’s instructions (which were pretty clearly boilerplate and not remotely overly constraining or predetermining an outcome), and did their job with a minimum of drama or any kind of errant discussion.

I used to feel this way as well, and then I started noticing stories about judges doing some really wild things in their personal lives that made you question how stable they really are. Judges are more informed about the points of law and legal procedure than the typical non-lawyer jury member, but they aren’t necessarily less prejudiced or more emotionally stable, and at least with a jury you have the mean of twelve people (and if you are shooting for a non-conviction, you only have to convince one to not vote guilty’).

Stranger

112

Also, to your point about the undercurrent of racism flowing from some of the jurors, judges can be racist, too. See, for example, 6 out of 9 justices on the Supreme Court. And the scary thing about racist judges is not only are they utterly blind to their own racism (as many such people are), but they already wield an extraordinary degree of power and influence over a case even without being the decider of fact.

I think we are better off ensuring that juries truly represent the community where a trial is being held (by which I mean, making it harder for prosecutors to exclude non-whites from juries—we could start by eliminating peremptory challenges) than by placing further power in the hands of judges who are drawn disproportionately (some might even say exclusively, by the time they become a judge at least) from relatively privileged backgrounds. Because, to refer again to your example, how many judges do you suppose can readily empathize with a black person being pulled over by a police officer for seemingly no reason? I’d wager the odds are somewhat worse than what you’d get from a truly random sampling of the community.

113

Certainly true, but one thing every judge I ever worked for feared was being overturned on appeal. It’s really embarrassing for them among their peers. So for that reason, even the squirrels were pretty mindful about operating within the framework of the law in making their rulings. The ones that deviated from it were usually new and still learning how important that was. They soon found out. (“Soon” being a relative term, since reversals on appeal took an average of 2 years in my venue.)

114

Agreed, and that is why I think that having judges rule on the interpretation of law and whether evidence and testimony is admissible isn’t a problem of ‘control over what the jury will see’ because the judge will generally rule in a narrow fashion when making a decision with the possibility of excluding critical evidence or argument. But when it comes to interpretation of the truthfulness of evidence and testimony, there is no absolute standard; this is why we have juries (or multiple jurists in other systems), so that one person isn’t sitting alone with their own preconceptions or misinterpretation without at least the possibility of being challenged by others.

I think the US system of jurisprudence has a lot of problems but layperson juries are among the least of them. If you wanted to fix bad convictions, excessive use of bail as a punitive measure, presentation of bunk science as expert-verified fact, subordination of perjury and extraction of false confessions by police, prosecutors pushing for plea bargains even when they know the defendant is probably innocent, et cetera you’d start with a lot of the procedural issues and perverse incentives that drive this long before trying to retool the jury system (which would require a constitutional amendment in any case).

Stranger

115

That sounds more like fanciful theory than any sort of established fact. Of course any system of selecting judges, whether appointed by politicians, elected, or self-selected, has potential issues – that’s just a truism. The question is which method tends to produce the best results and which method the worst.

What @Cervaise is saying – and I agree – is that the US judicial system is so infused with politics that the political leanings of appointed judges are frequently obvious and tend to inform their rulings. This political corruption manifests at its worst in the US Supreme Court – it’s downright comical these days to regard SCOTUS as any sort of institution of justice rather than a purely political body – but it exists at all levels. This is not the case in other developed countries, where the political leanings of a judge tend to be of little relevance or interest.

I’m not a fan of the US system of electing state-level judges, either, because I want judges who rule based on law and justice and not to improve their popularity and prospects of re-election. Appointment and promotion of responsible jurists with a good track record is generally the best system, but it cannot work well in the hyper-politicized US system.

116

Fwiw, i read your full post, and i happen to believe that a lot of the important decisions are made by the presiding judge in criminal trials.

I suspect that in practice, a panel of judges does a better job than our juries do. But i agree that juries mostly do okay, and this isn’t on my radar as a problem in the US that ought to be solved.

117

That’s about grand juries. Grand juries are a completely different beast from the juries that rule guilty or not guilty.

118

It’s an established sociological principle that groups tend to select new members who have qualities and values most like their own. That isn’t necessarily a problem if the impetus is judges selecting other judges on the base of sound character, good reasoning, and a measured way of applying law to human situations, but that isn’t guaranteed.

@Cervaise hasn’t actually said anything specifically about the US judicial system and has almost exclusively referred to the system in their country (which I infer is Luxembourg), but I don’t think anyone would disagree about the political influence in both state and federal courts in the US. Although there is some pretense that judges are supposed to be impartial, the politicization of the judiciary, and especially the Supreme Court has always been pretty evident.

Only about 1/3d of US states elected judges but even when they are appointed it is often a very political process with appointments gained through favoritism. At the county level most judges, like sheriffs, are elected, which has good and bad aspects but certainly tends toward provincialism. At this point, where states have become broadly identified as “red” or “blue”, there is basically no process that could consistently produce a balanced or independent judiciary.

No doubt about that; a presiding judge who refuses to allow admission of critical evidence or restricts testimony can definitely alter the jury’s perspective, and judges can often set aside a verdict for pretty arbitrary reasons, but at the end of a jury trial there are at least twelve people who don’t have a vested interest in the outcome who deliberate and come to a verdict.

That certainly may be, although how you’d ever measure this is questionable. But of all of the problems with jurisprudence in the United States (and there are many more than what I listed) I think the malfeasance or incompetence of juries is not in the top tier of things that should be fixed most soonest.

Stranger

119

On this we are in complete agreement.

120

Mostly, yes, as far as we know. I’ve never served on a jury (the need to do so is rare in my country) but there’s lots of anecdotal evidence that jurors, once selected, take their job seriously and try hard to find a just verdict. And I won’t bring up the Rittenhouse or Zimmerman verdicts because those are more likely the result of bad laws rather than incompetent juries. But we all remember the verdict in the OJ Simpson trial, right? And how quickly it was decided?

Now, this may not seem relevant, but I’m reminded of the segment that Jay Leno liked to do that he called “Jay walking” – walking around and asking people general knowledge questions. Profound things like: What’s bigger, the sun or the moon? What keeps the Earth in its orbit? What are the three branches of government? What are the two branches of Congress? Based on the answers from these fine citizens, all of whom were entitled to serve on a jury, it’s not hard to believe that OJ was quickly acquitted because the jury was a pack of idiots who could neither answer those questions nor properly assess evidence, and especially because these poor saps were pitted against the best team of defense lawyers that money could buy, and who could appeal to them at their own idiotic level: :musical_note: “If the glove don’t fit, you must acquit!” :musical_notes: