Landsburg: Why are juries trusted to judge some things, but not others?

Great Debates
1

One of my favorite writers, Steven Landsburg, has just published his third book: “More Sex is Safer Sex” In it he poses several interesting and provoking issues, some of which I think would make pretty decent great debates. In this case, the issue is juries.

To summarize his argument, in most other facets of American life, we seem to value the idea that people make the best choices when they have the most information. But in the case of jury trial, that principle is stood on its head: judges often decide what information is or isn’t relevant, often excluding key factors in a case. They are generally barred from getting information from any other source: even when that source is often more factually accurate and sourced than what can be presented at trial.

The question is, how can we trust juries to determine whether some element of the trial has 30% or 70% relevance to a finding, but not trust them to determine whether another element has no relevance? If we can’t trust them to find some fact (such as sexual history or prior conviction) is irrelevant to a rape allegation, how can we trust them to determine what presented evidence is or isn’t relevant, or to sort out conflicting DNA experts? If they are so irrational that they cannot be allowed near a newspaper editorial (which may, in fact, raise good points they otherwise might not have heard!) then how can they be trusted to reach findings? Evidence in virtually every other walk of life requires background knowledge to truly understand: in trials, however, this background knowledge is often banned or skewed. And if a juror tries to obtain evidence and assess its credibility, they are committing a crime!

Take the case of Oliver Jovanovic, who was convicted of imprisoning and abusing one Madame X. The judge in this case excluded an email correspondence between the two in which Madame X had “boasted of her enthusiasm for sadomasochistic sex.” Also excluded were the fact that she had indeed been an enthusiastic participant in these practices as she said in her email. Also excluded was a past history of making what turned out to be false accusations of sexual abuse. Jovanovic was then sent to jail for 20 months until his family managed to overturn his conviction after spending roughly half a million dollars.

Think about what that works out to as a system. It means that you can be convicted on the basis of a completely artificial and crafted picture of reality, but if you are willing to pay ridiculous amounts of money, then you can afford to have a different picture of reality portrayed and accepted into law (and subsequently get off).

Again, the question is why we have jury trials at all if we can’t trust juries?

2

You misunderstand (or Steven Landsburg misunderstands, anyway) the idea of the jury’s proper role.

The concept is that the jury is a finder of fact. Ordinary citizens are well-equipped to apply their common-sense experience and knowledge to the question of what weight to give to testimonial evidence.

But certain facts are excluded from the jury’s view because they are, as a matter of law, irrelevant. Now, in the case you mention, I don’t understand why those facts were considered irrelevant, but the general principle is obvious.

Rape shield laws, for example, generally make a rape victim’s past consensual sexual history irrelevant. This is because as a society, we have decided that consensual sexual activity, even if it’s promiscuous or …er… avant garde… generally has absolutely zero bearing on whether or not the victim was raped.

All those laws have, however, exceptions. If the prosecution’s theory of the case involves asking the jury, explictly or by implication, “Where did that vaginal chafing and redness found at the hospital come from, if not the accused’s non-consentual sex act upon the victim?” then the defense is certainly entitled to rebut that inference by showing that the victim was intimate with three other men that day.

However, the information that the victim participated in a twelve-on-one gang-bang two years ago has no relevance.

We recognize that the venire may bring with it certain unavoidable prejudices that may skew the perception of any woman that would agree to pull a 12 man train, as it were. So we exclude this information from the jury’s collective ears. This does not mean we lose all trust in the jury’s ability to hear testimony and resolve conflicts in evidence… just that we wish to make their job easier by not distracting them with information that cannot legally have any impact on their decision.

3

But you cannot find facts without the necessary knowledge or context. If it is true that certain facts are irrelevant, then if juries are capable of judging relevance, then surely they can decide these things for themselves. If they can’t, I still don’t see why they would be reliable judging the relevance of facts that are presented at trial.

You haven’t made their job easier by hiding information from them, and you can’t make information irrelevant by fiat (in what other profession or empirical framework is THAT ever a value!!?): you’ve made a claim of professional expertise on how they should do their job.

4

Similar to what Bricker wrote, but instead of “relevance”, I’d refer to “fairness”.

The system has developed rules about what kinds of evidence are fair or unfair. Past history is a great example. Disallowing hearsay is another such example.

A different sort of example is evidence which was obtained by breaking the rules: A confession obtained without Miranda warnings is considered too unfair to be admissable. Evidence which was obtained without a required search warrant might be very relevant and believable for this case, but it has to be disallowed in order to keep the police in line.

And so on…

5

That’s another subject, but there are many alternative ways to keep the police in line that do not involve pretending facts do not exist. Evidence being tossed out is an incentive for police to act properly, but with the bizarre consequence that evidence is, well, tossed out. It’s worth asking if there are better alternatives.

The problem is that virtually every other sector of public life, from elections to economies, is a great counter-example. Systematically deciding that some type information is fair or unfair means jerry-rigging reality: presenting this move as one that increases accuracy seems, well, especially silly.

6

In some judicial systems – e.g., the Roman Republic – the parties were allowed to argue their whole lives, and each others’, to the jury. “You see what a bastard this guy is and how many services I’ve rendered the state. How could he possibly be in the right here?” Nevertheless, he could be in the right; habitual liars sometimes tell the truth, virtuous citizens sometimes do wrong. The Anglo-American system is based on the assumption that the court, jury included, should look only at evidence relevant to the particular matters at issue (which necessitates a complex body of law governing what may or may not be admitted). That’s why the figure of Justice wears a blindfold.

Remember the scene in Pirates of the Caribbean, where Commodore Norrington condemns Jack Sparrow to hang for piracy, based solely on Sparrow’s identity and reputation, with no trial and with no evidence of his guilt in any particular act of piracy? That could never have happened in a real British port, nor should it, not if Sparrow were as bloody a monster as Blackbeard.

7

Doesn’t it go beyond that in that the judge ensures a fair trial, and the jury - who have the right to ignore the judge (e.g. jury nullification) - ensure that justice is done?

8

But that blindfold is selective: the question is simply who does the selecting and why. Statistically, people with past criminal records really ARE more likely to be lying and have committed the crime, and I really fail to see why this information is less relevant than other statistical arguments (like DNA evidence, for instance) that are admitted at trial. The answer to bad information is, in virtually every corner of a liberal society, more information, not less information.

Criminal trials are not the only elements of civic life. If we bar juries from access to both fact and rumor, why not voters? Shouldn’t voters be sequestered from contact with newspapers and television ads for fear that they might let some irrelevant or false claim enter into their deliberations?

If your argument is that, well, putting a person in jail is a bigger deal than electing someone, then you are being silly: the magnitude of the consequence doesn’t affect the question of whether we should do something wise in one place but not in another.

Again: if a jury is really going to be swayed but such things, then this is a very strong argument against juries period. The question is especially pointed because Bricker’s response, trying to draw a bright line between findings of fact and what the law wants to hold irrelevant, is especially silly in that we allow all sorts of elements into trial that are “prejudicial” anyway. As Landsburg points out, we for instance allow defense attorney’s to dress up their clients any way they want, for instance: rather than having ragged hair and tatoos visible through torn off shoulders, their clients come in a suit. Shouldn’t the prosecution get a turn to dress the client up in the outfit they think would best suit their case?

Of consider race. Race is, without question, something that plays a factor in the jury’s findings, but when was the last time a judge banned information on a defendant’s race from the jury, despite it being arguably one of the most prejudicial pieces of information around? Why is it okay for someone’s race to play into deliberations, but not their history of holding up banks?

9

The problem with letting the jury decide what to hear is that they might very well like to hear what bloggers have to say about things.

10

Not when the entire nation is founded on notions of liberty.

Putting someone in jail is the worst thing we can do. That’s why criminal defendants have so many rights.

There are dozens of reasons why the jury can hear certain things and why it can’t hear others.

I won’t get into it now, but I will cut and paste some of the policy issues from my evidence notes tomorrow or the next day and that should give you a jumping-off point for the debate.
I appreciate the fact that you have questions and that it seems unfair and unfounded to you, but there are reasons- reasons based in a system that has different priorities than you do.

11

This is a non-answer. I asked some explicit questions about a perceived inconsistency, talking vaguely about liberty doesn’t answer any of them. If juries can’t be trusted with figuring out what is or isn’t relevant information in the case of a criminal case, then why are these same people trusted as voters? Talking about liberty makes no sense as a response to that.

I know people think there are lots of good reasons, but that doesn’t mean they are particularly good reasons. They may be good reasons in some framework or habit, but that habit is what needs reexamining.

12

As a wierd aside, it is permissible to present evidence that a rape victim is a hooker.

13

Voters have a decent incentive to make a rational choice: they have to live with the person they elect. Jurors get their $15 a day whether they convict or acquit.

You’ve proposed a loaded question. Who says we can’t trust juries? If juries are provided with legally collected facts, a jury, IMHO, a pretty reliable agency. You may pose the question as, “Why shouldn’t juries be free to consider rumors, blogs, and Rush Limbaugh’s opinion?” I see it more like, “Should people be deprived of their freedom based upon facts or innuendo?” That’s a very simple answer for me: people should not be in jail because of something someone once said to some other guy. It therefore flows logically that juries should not have access to such information.

Again, it’s not because jurors can’t be trusted, it is because defendants should be tried on the basis of facts. Your concern seems to be focused on fairness to jurors, I’m more concerned about fairness to those who may be unjustly accused.

14

I think virtually every post so far has gotten it wrong. It’s not about juries at all. The entire justice system is set up to provide the innocent with the best possible chance of getting off free without total anarchy. The prosecution’s hands are tied again and again. This is another aspect of it.

15

I’d guess, smiling bandit, you are either a prosecutor or haven’t been involved in criminal trials. In my limited exposure to them, it strikes me that the system tilts very heavily against the accused, certainly in practice if not as totally on paper. The bottom line that people can, and regularly are, incarcerated for up toa year before they are tried throws a pretty huge pro-prosecution spanner into the works.

16

So wait, your argument is that jurors in comparison DON’T have good incentives to make rational choices? This helps your case… how again?

If that is what you are saying, I agree with you, and this is something else Landsburg covers in his book. Jurors have little or no incentive to pay any attention at trial or fulfill their duties adequately. The fact that so many do do that is a testament to the power of juries and our society, but that’s not the same thing as saying that its as good as it would be with a good incentive system.

Judges and lawyers do (unless, of course, you pay or badger enough of them enough to get them to disagree).

Look, you can’t have it both ways: you can’t think that juries are pretty reliable one second and then treat them like children the next. If some delicate flower is going to be swayed by Limbaugh’s opinion, then I hardly see how they are going to stand up to a flashy, skilled lawyer vs. a lousy one. One one hand you think juries are a good agent, and in the next, you think they aren’t capable of weighing the relevance of things presented at trial. As I noted, it’s not like trials themselves aren’t FULL of permitted innuendo that juries have to sort through, it just happens that the innuendo is compiled by whatever this particular judge will allow.

They also shouldn’t be in jail because some piece of evidence was given undue weight, and yet we trust juries to sort out the latter and not the former?

As I pointed out before, information without context is often grossly misleading. Give me the context any day over information stripped of context so that it better fits some guys arbitrary idea of objective. In every other walk of life, we recognize that the answer to bad information is more information. But at trial, the prescription is that if only bad information is allowed in, then tough luck.

What I’m most concerned with are jurors having the right incentives and the best ability to come to the most accurate finding of facts. It’s not clear to me that the system is set up that way at all.

You presumption that the current system is set up to be fair to the unjustly accused is interesting, because honestly, I don’t see how that’s the case. I’ve already provided an example where someone really was unjustly accused and information that was clearly relevant was tossed out.

Again, what I’m pointing out is a major disconnect. Science, evidence, economics: all of these fields tell us that people make the best decisions when they have access to all the information and are allowed to seek out and assess the credibility of information the find suspect. You all seem to take it for granted that in fact, it’s better if a very few people have a say over what counts as information and what doesn’t, even though there really is no case for a hard and fast line about what is or isn’t. You also seem to assume that having information thrown out at trial if it is not “legally” gathered is the best incentive system for to keep police officers from doing things to people we don’t want them to do (like violating their rights). I’d say that having evidence tossed out is in fact a pretty weak and ineffective incentive for police not to do things like that, and it the current system mostly seems to benefit wealthier defendants over poorer ones, because figuring out that the police have done something wrong and getting it thrown out is something a better lawyer can do far more effectively. But the real issue here is whether this is really the right incentive system to get the behavior we want period.

It’s sort of like Landsburg’s argument against the patent system. We want, as a society, to reward inventiveness, because it makes us all better off. But for some bizarre reason the way we reward inventiveness is not with money but with monopoly powers. That’s, as he says, like rewarding Ben and Jerry for making such good ice cream by giving them special licenses to drive drunk when they feel like it. There are a lot of ways to give people incentives to do the right thing, but giving them an incentive which is itself a bad thing and is clearly harmful seems like a bad idea.

17

Bricker, I’m assuming this was shorthand for “is legally deemed to have no relevance” or “may be relevant but is excluded per se because is assumed to be inherently more prejudicial than probative.” Lack of consent is an element of proving up a rape charge, and a rational juror might find an accuser’s history of consent or non-consent probative in some non-zero degree – the point is, the law has decided as a policy matter not to let this consideration take place.

The OP is not wrong in suggesting that distinctions of this sort are necessarily somewhat arbitrary. Take another example – should we admit evidence that a particular rape defendant wrote a bad check two years ago? The law answers: “No – among other reasons, because fraudulent intent is not an element of the charged crime of rape.” And that’s true. But couldn’t some juror say, geez, I’d really like to know that this guy is a bad apple and habitual cheater, it would influence my decision whether to believe his consent defense here, falso in unum, falso in omnibus? Sure, some non-irrational juror could say that. We just don’t let him act on it.
I suspect that there is an element of question-begging in Landsburg’s starting premise that (volume of available information) maps with linearly-increasing (reliability of consequent decision-making). You can approach this as a problem of information overload, diminishing signal to noise ratio, or the like. I think of it more in terms of the stock markets and the efficient market hypothesis. The U.S. has among the most transparent markets for equity. Putting aside the (not insignificant) instances of management or accounting chicanery, massive amounts of data are available regarding every publicly traded company. Every metric of company performance can be considered and analyzed. This should lead to perfect pricing of stocks. But it doesn’t – some investors can consistently beat the market, often by focusing only on a subset of the massive data universe. And contrarily, sometimes despite all the data showing that a company is doing great, or doing poorly, the market (a jury of sorts) comes to a different and non-rational decision in pricing its stock.

If you have been on, or seen deliberations of, a jury, you will know that even with the best of intentions it is very, very hard for 12 people to stay on-point in analyzing the elements of a crime or tort. Introducing a limitless set of data points into the jury room could increase the odds of never reaching a verdict at all, or reaching a verdict informed by truly tangential issues.

18

Oh, lighten up. It was more a quip than anything else.

Sounds like you’re putting words in people’s mouths.

And you’re painting this like a black or white situation: full trust or zero trust. It is a silly proposition on the face of it. I’m not sure if you’re simply trying to be provocative or you’re simply missing the point: juries do a pretty good job with the limited responsibilities they are given. That doesn’t mean that they are therefore entitled with total responsibility for dispensing justice how they see fit, which is what you seem to be saying should be the case.

To use an analogy, some folks have accountants to take care of their taxes. Most accountants do a good job and would be trusted by most people. That doesn’t mean that accountants have to be trusted with all other information, like whether one’s wife is two months pregnant, how much the client spends on booze and cigarettes, or to be brought in during salary negotiations with the client’s boss. The point is that people assigned to do a certain task do not necessarily need plenary authority over all aspects of that task in order to perform it well. On this basis, there’s nothing inherently wrong whatsoever with instructing an accountant, a jury, a gardener, or a high-ranking general: Your tasks are A, B, and C. You will do them in such-and-such way. D, E, and F, while perhaps germane to your tasks, are the responsibility of this other guy, and he will decide what you need to know and when you need to know it. Why should juries be the exception to this principle?

Since you brought it up, if this Landsburg guy really said patents are like giving someone a license to drink and drive, I can only conclude he’s a nutcase. That argument makes no sense whatsoever.

Out of curiosity, Apos, have you ever served on a jury?

19

But that’s sort of the point: instead of responses I’m getting quips. I think its a serious question. I know it goes against the conventional wisdom of “question nothing” when it comes to how our society is set up, but even if you disagree I would hope that you think it’s something worth thinking about.

No: what I’m saying is that a judgment about whether a piece of evidence has 0% or 30% relevance is not different from a judgment about whether it is 30% or 70% relevant. The problem is that I don’t see any consistency in the view that someone could be unable to make the former judgment and yet trusted to make the latter.

But if the question is a matter of what is demonstrably true, then yes, having more information seems to be always a better idea than someone’s idea of what particular selection of less information is best.

I laid out an argument explicitly to why it makes sense: an argument you seem to have ignored in favor of namecalling without addressing it. That’s not very decent of you.

Again, the argument is this: the rationale for patents is to provide incentives for people to be inventive, primarily because the rewards to inventiveness are great and most of the spillover benefits cannot be directly captured by the inventor (leading them to underinvest compared to total social good).

The problem is that the particular incentive we’ve picked, as a society, is a monopoly (set at a senselessly arbitrary length of time). But monopolies are bad things: they harm society as a whole.

In that way, the situation is exactly the same with Ben and Jerry. If society wants to reward them for making such great ice cream and gives them a license to drive drunk, this is also harmful to society as a whole. The question is: why give people rewards that harm society as incentives? Especially when there are many other alternatives, that seems very silly as a matter of policy.

Yes, and I sent a guy to jail for resisting a fare beating arrest in which an officer was injured. It was very clear throughout the trial, however, that there were all sorts of key facts missing: not just rumors, but witnesses that weren’t called, information people were dancing around, and so on. All I know is that to the best of my knowledge we made the best legal determination as instructed. But I’m not sure what it had to do with finding the truth of the matter and justice.

20

Justice White, I think, said something similar about the exclusionary rule: It was, in his view, particularly pernicious because it could only benefit (at least in the courtroom) a guilty person from inculpatory evidence of his guilt. He thought the better remedy might be to admit the highly-relevant-but-improperly-obtained inculpatory evidence, and then give the defendant a separate civil cause of action for the improper search. I am not sure I agree with him, but it’s an interesting policy point.

I don’t get Landsburg’s patent analogy. Many people who make an invention als will wish to produce and commercialize the patented invention (not always, but in lots of cases), so giving them a guaranteed market in which to recoup their R&D costs for the product that they invented has a direct corellation between their virtuous act of invention and their subsequent profit therefrom. It’s not gratuitous. Giving Ben & Jerry the right to drive drunk has no direct relation to what they created and benefited the public with. It is gratuitous. Giving B&J the right to exclusively market ice cream under their trademark, or preserve their recipes as trade secrets, does bear a relation to their act of creativity, and is what we do and what most people think is appropriate.