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

I thought that was (then) Justice Rehnquist. The problem I saw with that is that it focuses too much on that individual event, rather than attempting to cure the problem of improperly obtaining evidence as a practice. Hence the exclusionary rule benefits people in the future who are not subject to illegal searches/interrogation.

It’s definitely worth thinking about, especially because it’s quite possible that some alternative situation could improve BOTH of the major things we are concerned about: we could create stronger and more effective incentives for police officers to not violate people’s rights in the pursuit of an investigation AND we could have more accurate information at trial. There would also cease to be an incentive for criminals to play tricks trying to goad or falsely accuse the police of things will that get evidence thrown out, and there will be far less of an advantage for people who happen to be able to afford good lawyers who are skilled at getting things thrown out.

The current way of doing things, it seems to me, gets the incentives wrong for almost everybody.

I really don’t know what you mean by gratuitousness or direct relation: how does this not make monopolies harmful to society? There is no question at all that they are. You talk about them doing this or that for recoup R&D costs, but that’s just another way of saying that we give them incentives (and in the present case, the incentive is monopoly profits): if you have to recoup R&D out of your pocket without any hope of getting recompense, then of course you are less inclined to be inventive.

But there is nothing particularly natural about the idea that if you invent something, no one should be allowed to learn or copy from what you did for a period of exactly 17 years. That is an incentive that we have chosen as a society to give to inventors so that they’ll be more inventive. It’s no more or less natural to give it to them because they really really want or expect to get it. Lots of people want lots of things. The question is whether it’s a wise to reward something good with something bad, especially when there are other ways of giving people incentives to be inventive: even incentives that get them exactly as much money in their pocket as before.

Again, lighten up. I made one quip and several serious points, did I not? Geez, talk about the dismal science.

I see zero percent relevance as being different from 10% relevance. I also see prejudicial as being independent from a measure of relevance. And again, the argument being made is based upon the concept of a scientific inquiry into the truth – but because of the principle of juries as being checks against the power of the state, there’s a very good reason why the trial process is not treated

Perhaps in a different thread. Suffice it to say that drunk drivers are inherently threats to the life and limb of others; meanwhile, I own plenty of patented items that were procured at very reasonable cost. Grouping the many people killed by drunk drivers and the (reasonable) price I paid for my Palm Pilot (what with its patented technologies) as both doing “harm to society” is completely lacking in perspective. It’s the sort of comparison which brings to mind the adage about economists knowing the price of everything and the value of nothing.

Do you think you would have done a better job if you knew that you would be rewarded if you came up with the “right” verdict or fined if you came up with the “wrong” verdict?

If that’s the point, then it’s even more clear that excluding evidence is not the only way, or even the most effective way, to improve the behavior of police with regards to respecting people’s rights.

In this case, your quips are merely a means of avoiding and dismissing unconsidered questions and arguments I made. I’m not sure about me being dismal, but I am pretty sure that I have a lot more respect for you and your arguments than you are showing for me and mine.

Ok: why? Why is the ability to judge one not related to the ability to judge the other?

… I think you left out the very good reason by accident. Let me just say in pre-emptive response that there are all sorts of ways to check the powers of the state against the accused, and not all of them require presenting finders of fact with alternate or skewed realities.

No, in this thread, right here: “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.”

Again, this is a non-response. This has nothing do with scale and I never said it did (though, frankly, in terms of economic value, monopolies can easily be more harmful than a single drunk driving fatality, even if you only measure in terms lives and refuse to admit that lives can be monetized. Think of all the people who will die because they cannot afford a medication they need: that’s a monopoly at work): it has to do with the bizarre behavior of rewarding something good with something harmful to society.

Monopolies harm society. You’ve not even bothered to argue otherwise, you’ve simply ignored the whole subject. Well, yes, of course my example looks silly if you simply ignore the whole point of it. Not sure what that demonstrates tho.

Responding to Post #24

I don’t think it is the only way. I do know that the idea of letting the evidence in and allowing a civil action later isn’t going to do a lot. I doubt you would find many juries likely to award damages against a cop in a situation where a person was convicted on improperly obtained evidence, not to award any real amount of damages to person doing time for the offense.

But monopoly powers are a proxy for money, right? Especially in a marketplace in which the persons who invent new things are also frequently set up for, and interested, in marketing said new things at a profit (the profit being enhanced by a limited monopoly).

Or should the government give money to all who procure a patent? That doesn’t make sense for a number of reasons. One, it forces all members of the public to pay a premium for inventions that may be highly useful to a small number of the public but of no use to the generality. When the monetary reward is priced into a monopoly-marketed power, the tax is paid only by those who want and need the particular product.

Also, allowing exclusive marketing as a proxy for monetary reward relieves the government of huge transactional costs and valuation problems that would be associated with trying to figure out which patented inventions were most useful and most deserving of monetary reward. There are seven million U.S. patents (more, actually). A great number of them are to inventions that have never been successfully marketed. In this case, the market itself has spoken as to which inventions were more useful – the fact that someone is willing to pay a monopoly price for a PalmPilot but not for an electric kazoo is a reasonable proxy for which inventor has objectively benefited the public at large the most.

Actually, it’s a beautiful Friday afternoon and I’m in a rather good mood, and trying to inject a little levity. I’ve actually put quite a bit of thought into this matter this afternoon, but if the injection of a tiny bit of humor into the debate bothers you, geez, I’ll stop bothering you.

Because prejudicial material is dangerous in that juries are charged with weighing facts, not character. Should a person be subjected to serious criminal penalties because the jury is uncomfortable with the character of a defendant? The very nature of prejudicial material is that is can be more compelling than cold hard facts. There’s a certain amount of prejudicial material that cannot be excluded from trials, of course – the murder trial I was a juror on had one defendant who really looked like a sweet young boy. It was obvious that this influenced some jurors to vote to acquit, while others disregarded his appearance and voted to convict. I’ll bet that most jurors would have loved to know more about what kind of boy he was – did he get straight A’s in school? Was he a simpleton who got caught up in a criminal enterprise? Was he a cold hard killer arrested many times in the past but just cleans up well?

I have no doubt that such information would have changed the vote, because folks would weigh the facts along with their impressions of what kind of person he was. But I don’t think people should face conviction because jurors may be convinced he was a bad guy who probably did something wrong, or vice versa. If jurors are presented with a case of relevant facts, jurors will generally do a pretty good job of judging that case.

:smack: Whoops. I neglected to complete that thought. …why the trial process isn’t treated as an open-ended inquiry into the affairs of one person. Let’s say someone is charged with shoplifting, but a jury is free to investigate the person to their heart’s content. How could a defendant possibly be able to prepare an effective defense against an inquisition? Under such a system, a defendant not only has to defend against a charge that he committed a specific crime at a specific time, he must be prepared to answer and respond to anything the jury may be inclined to hold against him. The jury may think he’s a bad person. The jury may think he may have committed another, unrelated crime that the prosecution does not believe the person committed. The jury could conceivably demand more and more evidence, regardless if the prosecution and defense had rested their cases. The more leeway one gives juries to judge beyond the facts presented, the greater the risk that the jury becomes not an impartial panel judging the strength of the government’s case, but in fact becomes what in the worst case could be the jury acting as though it were an agent of the state. I believe that the right to a speedy trial, already something pretty compromised, would effectively end if juries had open ended authority to pursue its own prejudices rather than reflect upon the work of the prosecution. The whole point of a jury is having a body outside of the process to be the arbiter of whether the prosecution has done its work, rather than be allowed to become absorbed into the investigation process.

I have a mental defect that only allows me to take one subject seriously in one thread at one time. Which do you prefer to debate in this thread, juries or monopolies?

Apos, I’m a bit late to the party (my internet connection has been down for a couple weeks), but I’d like to address the OP. I’m going to skip over most of the ensuing discussion. If there’s something you’d particularly like me to address, please mention and I will.

First, understand that most of what Landsburg is talking about are rules of evidence and they apply with equal force to judge trials and jury trials. IOW, it’s not that the rules of evidence distrust juries. It’s that they distrust certain types of evidence. Some of these rules make more sense than others, but generally speaking they are addressed to the idea that the best evidence should be used. For example, we should have the testimony of someone who observed a fact, rather than a hearsay report of that person’s observation.

Second, as regards rules which exclude relevant evidence - not only the exclusionary rule but privileges and concerns about undue prejudice - be aware that the trade offs of these rules are recognized and widely debated. It’s not that your position has no merit. It’s that the merits and demerits of both ways of approaching each rule have been considered, resulting in the system we presently have. Myself, I think the rules are in some ways insufficiently protective. I wish people could consult mental health professionals without being exposed (as is true here in California) to the professionals being required to report potential crimes. In the long run, I think we lose more than we gain. But, that’s how the debate has played out and I have to accept the outcome. This is not a broad indictment of the jury system.

Third, that defendants with high-priced lawyers do better than those without doesn’t tell us much about how the criminal justice system should be constructed. I presume you’re not proposing that the rich may not hire lawyers. Personally, I think we should pay more to hire the poor better lawyers. In any event, if you opened up the rules of evidence, well-heeled defendants would benefit most, so you would only be making the situation more unfair.

Finally, what system are you and/or Landsburg advocating? What rules should be changed and what should they say?

Neither is totally accurate. But consider: the prosecutor must prove (beyond a reasonable doubt) that the defendant did it; the defendant must prove nothing. He can just shoot holes, say someone else did, etc. He gets a chance to respond to the prosecutor, but the prosecutor does not the reverse (except in a closing argument, where he cannot bring up new evidence, etc.). He gets a look at the prosecutor’s evidence before the trial, but not the reverse, etc.

Of course, I have to admit that some areas are more or less likely to convict, and most crminals don’t get trials because they’re caught like a vice in the evidence and get a deal. Still, I suspect the length of pre-trial incarceration is related more to an overworked judicial system

What I have seen happen too often is that an individual is arrested, cannot afford bail, and is held for up to a year before trial. Despite the fact they maintain their innocence, after 8 months or so they are presented with an option by the DA - plead guilty and get time served, with maybe a small extra sentence, or go to court and face, for example, 5 years.

Given the jury’s proclivities to convict, the rational choice may well be to plead guilty to something one did not do in order to minimize the expected time in prison.

I’m actually curious about that. My internet searches revealed average stays from a few days days to much longer, so it may vary wildly from place to place. It defintiely varied along rural/urban divides and along minority lines.

Only information I have on it is anecdotal, but it is from Tennessee - Nashville in fact.

Well, I was interested by the original post. Then I saw that the poster totally ignored, rephrased, or otherwise blandly dismissed anyone’s statements that gave answers to his questions, and realized that it wouldn’t be worth much effort.


  1. Juries are prevented from hearing what the law considers is irrelevant for two good reasons:

a) It shortens the process;

b) It helps them avoid reaching bad conclusions.

Yes, that shows a lack of “trust” in the jury, but then, so what? That doesn’t make the process itself untrustworthy. It would be equally, if not more cogent in arguing that the system is faulty to point out that parties can, if they choose, avoid use of a jury alltogether, and often do when the issues are complex enough that the parties think the jury would fuck it up royally, thus preferring that a judge do the fact-finding. For this we should jettison jury trials? Get real.

  1. The exclusionary rule is preferable to other methods of avoiding constitutional violation of people’s rights by the constabulary.

a) The usually proffered alternative is to allow someone to sue if their rights were abridged; do we really want individual officers worried about personal liability for screwing up what may be an important decision about, say, detaining a potential criminal? Or do we want a police department instructing its officers to be vewwwy careful while hunting the wabbits because the legal dept. for the city has advised that any more civil rights lawsuits for Fourth Amendment violations will bankrupt the city?

b) The ends do NOT justify the means, which is a hallmark of American jurisprudence. Thus, convicting someone through unconstitutional efforts is not a good idea. Where would this end? Suppose the evidence isn’t the result of an improper search, suppose it’s the result of forced self-incrimination? Do we wish to condone interrogation methods that violate our sensibilities simply in order to convict a few more deserving people? And can we be certain that we’ll have any better “batting average” if we do so? We already convict a certain percentage of innocent individuals, usually as a result of cutting some corner somewhere in the legal process; is it desirable to increase the risk of this sort of result?

  1. Limiting evidence does not “skew realitly.” This is a deliberate misstatement of the situation, intended to create sympathy for the proposed view. “Reality” is always a product of perception. To the extent that a person’s ability to offer evidence to support a contention is affected by their means, well, we sadly live in a society where there can be wide differences in means. But it is a gross over-simplification to suggest that even a significantly large percentage of trials, civil or criminal, are significantly affected by the means of the parties. Obvious examples exist (O. J. Simpson, eg), but even O. J. Simpson would have been convicted if the police and the prosecution had done their jobs properly. But the fact that the jury isn’t allowed to hear evidence that the law deems irrelevant, immaterial or highly prejudicial isn’t a skewing of reality. The reality and the perception of reality by the jurors will always be different at some level, even if every conceivably known piece of so-called evidence were presented.

In the end, the reason the system works the way it does is that we’ve learned, through hard experience, that doing it different ways causes worse results. Let them hear prejudicial evidence, and they will convict innocent people. Offer them irrelevant red herrings, and they may not manage a correct verdict in a civil suit. Suggest immaterial facts, and the jury may decide that the proffered facts are material and important, failing to grasp the at times subtle logic of the law’s thinking (examples of which we see repeated regularly on this message board by posters).

Which brings me to the final point: the OP makes a fundamental mistake in asserting that we are allowing juries to decide how to weight facts on some continuum from 1% to 100%, and taking away only the 0% to 1% determination. This is untrue, and mischaracterizes what a fact-finder does. The juror doesn’t decide that a fact has, say 34% importance. A juror takes the information given, resolves the conflicts that this information creates regarding what actually happened, forming a gestalt of reality in his/her mind. The juror then takes this gestalt and applies the rules as stated to decide a factual outcome. Put into proper context, the fallacy of the argument proffered in the OP becomes clear.

Is it foolproof? No. Is it better than most other systems? We think so. :slight_smile:

Given that every defendant is constitutionally entitled to a speedy trial, if any defendant is languishing in jail for 8 months, they are doing so at their own request. N’est-ce pas? :dubious:

This just isn’t true, is it?

The exact timing of “speedy trial” requirements vary from state to state and sometimes based on the felony, but it isn’t the case that no defendant waits 8 months for a trial except by their own request. In NY, for example, the limit is 6-months for felonies, but there are dozens of exceptions and it doesn’t apply to murder.

Also, in addition, I’ll confess to a memory lapse. I thought the TN speedy trial limit was a year, and it turns out to be 6 months. Not sure where that one came from. I’ll beg for mercy based on my experience of criminal law being limited and quite a while ago now…

I imagine you will find that there are very few out of the population of criminal defendants who are in jail for as long as 8 months who have not entered a waiver from the speedy trial requirements. Allow a LITTLE hyperbole, please. :wink:


As with all of these other excuses, there are a myriad of ways to shorten the process. Just because some proceedure accomplishes some good end does not mean that it is the only or the ideal way to achieve that end. There are all sorts of ways we can work to create incentives for both sides of the case to get their side of things short. Not all of them require selectively leaving the jury in ignorance.

I’ve already explained why I’m not convinced that it DOES help them avoid reaching bad conclusions. Anyone that is actually committed to the idea of liberal science or empiricism should be pretty skeptical of the idea that truth is best arrived at by authoritatively declaring that only certain information is relevant right off the bat.

I’m not sure where the coherent argument is here. A coherent argument would: in some way justify why it is we cannot trust juries to figure out that some piece of information is irrelevant to their deliberations but we can trust them to figure out how relevant some other pieces of information are, comparatively or independently.

I remain unconvinced.

I don’t know: do we really want police to have incentives to avoid infringing on people’s rights? Or not?

So your argument is that the government should be able to violate people’s rights without any incentive not to do so other than that they won’t be able to use the information to screw you at trial IF you happen to have a good lawyer?

Then why not let the jury hear that it was forced?

I don’t see how to get from point A to point B here. In this case, point A is “treating reality as real” to “condoning what happened.”

You sure it’s about cutting corners, and not about juries screwing up, or being misinformed?

Again, you’ve managed to go a whole paragraph without actually providing a reason for anyone to agree with your position: why do you think the risk would increase instead of decrease?

Well, no, I disagree. It is a 100% accurate statement. It’s one thing to argue that the legal system, for this and that good reason in your opinion, limits the information available to the jury to a very specific picture of things. That’s a legitimate and reasonable position that I’m disagreeing with. But it’s quite another to argue that in doing so, the process is not in some sense distorting reality. I don’t see how that’s a respectable position at all.

Now this is a very silly argument. We haven’t learned any such thing, because we HAVEN’T tried all that much of the alternative systems we might devise. There are all sorts of quite good suggestions for how to improve the performance of the legal system that we’ve never tried, anywhere (we’ve never tried, for instance, any measures to actually make sure jurors even paid attention at trial).

So you say, but you aren’t very convincing.

But I don’t see how you can say that and then turn around and praise juries. It’s clear from recent history that juries screw up A LOT, and even worse, there are no consequences or incentives for juries NOT to screw up.

Wow, I don’t even know what to say. I’ve mischaracterized what a fact finder does, because I didn’t use the word gestalt? What a stunning bit of rambling, all of it never getting around to explaining why talking about weighing evidence is a mischaracterization of anything.

Who is “we”?

If you are arguing that the system is fabulous for lawyers, then I agree. But then that’s because lawyers and judges have every incentive to make the system that way.

Hyperbole allowed.

It’s a bit of a hijack I suppose, but I’m actually interested in a good answer to the question. I guess we’d have to define the parameters more carefully, but my semi-WAG is that about 15% of defendants are kept over the federal speedy trial statute’s time limits through no fault of their own (i.e. prosecution obtains extra time to track down a witness, evidence collection issues, unnecessary delay in the adjudication of defense motions, etc.).