Judge Not
Judge Hiroshi Fujisaki has
instructed the jurors in the O.J. Simpson civil trial to ignore everything that
happened in the criminal trial. This makes him the judicial equivalent of the
automatic-elevator operator who will not allow the passengers to press the
buttons. If passengers started pressing their own buttons, there would be fewer
jobs for elevator operators; if jurors started gathering their own information,
there would be fewer jobs for judges.
Economic
theory predicts that special-interest groups will try to manipulate the rules
of the workplace to make themselves indispensable. Everybody knows about union
featherbedding, and everybody knows about complex legislation--written by
lawyers--that only lawyers can interpret. But it seems to have escaped popular
notice that judges have developed the arcane rules of evidence that keep judges
in demand.
Judicial featherbedding explains why judges insist on
filtering everything the jurors hear. In the Simpson case in particular, a lot
of interesting arguments have been made, and not all of them have been made in
Fujisaki's courtroom. Why would we want to shield jurors from perfectly good
reasoning just because it happens to arise not in the courtroom but in an
editorial or over the dinner table?
The
standard response, of course, is that we want to shield jurors from bad
reasoning. But, if we trust these people to sort out wrongheaded analysis from
sound reasoning in the courtroom, how can we not trust them to do the same with
the editorial page?
In fact, the entire system of shielding jurors
from "irrelevant" information (like past convictions, in criminal trials)
betrays a disturbing inconsistency. A juror who is capable of sorting through
conflicting claims from dueling DNA experts surely is capable of judging the
informational content of a past conviction.
Nevertheless, we allow judges to exclude evidence even though, once evidence
has been introduced, we trust jurors to decide how much weight it should
receive. In other words, we believe that jurors are perfectly competent to
decide whether a given piece of evidence should be given a weight of 30 percent
or 70 percent or 90 percent, but not whether that same piece of evidence should
be given a weight of 0 percent. I can think of no set of beliefs about the
limits of jurors' competence that would recommend such a policy.
Either jurors are capable of deciding how much weight to
assign a given bit of evidence or they're not. If they are capable, then by all
means show them all the evidence and let them ignore what they think is
irrelevant. If they are not capable, then why do we have juries in the
first place? Either we have a very muddled view of what jurors can accomplish,
or the system has been devised to serve the interests of judges and lawyers who
thrive on confusion.
I'm not
talking about things like the exclusionary rule, which prohibits jurors from
seeing evidence that was gathered illegally. The exclusionary rule serves a
clear purpose by discouraging overzealous police officers from inappropriate
behavior. Whether that benefit is worth its cost in terms of false acquittals
is arguable, but at least there is a clear benefit. By contrast, the
limited admissibility of legally acquired evidence serves no apparent
purpose, except to generate motions by lawyers, rulings by judges, and grounds
for appeals.
You might think that without judges to
carefully control the flow of evidence, jurors would drown in a sea of
irrelevant information--and trials would go on forever. But that problem is
solved most efficiently by having lawyers pay (in cash) for excessive use of
courtroom time, not by the long and costly process of motions and appeals.
The jury-selection process
is another good example of judicial make-work. The officers of the court go to
enormous lengths to choose unbiased jurors. But what is so desirable about the
absence of bias--and of the informed speculation that might have led to that
bias? At election time, we are not urged to avoid the media so as to remain
unbiased until we get to the voting booth. Isn't it inconsistent to prefer both
a well-informed electorate and an ignorant jury?
(Sometimes, apparently, jurors are chosen not just for specific ignorance of
the case but for general ignorance of the world around them. I have a friend
who was excluded from a jury because he answered "yes" to the question, "Do you
think a man who's been arrested is more likely to be guilty than a man who
hasn't been arrested?" Presumably his place was taken by another juror who
really believes that the police arrest people completely at random.)
Jurors are kept off-balance--and in need of additional
guidance from the bench--by the judge, who instructs them to convict if the
defendant is guilty "beyond a reasonable doubt," without telling them whether a
"reasonable doubt" consists of a 1 percent risk of error, a 5 percent risk of
error, or a 10 percent risk of error. Lawyers scoff at the notion that doubt
can be quantified so precisely. Their scoffing is justified, but it's also
irrelevant. It is true that no juror can be sure whether his or her doubt is
more or less than 5 percent, but it is equally true that no juror can be sure
whether his or her doubt is more or less than "reasonable." With a quantified
target, jurors would at least know what to aim for, even if they can't be sure
of hitting it.
It's crazy to think that
jurors who are unsure about two criteria (what is a reasonable doubt,
and does my own doubt exceed that level?) will be more accurate than jurors who
are unsure about only one criterion (does my doubt exceed 5 percent?).
And quantified standards have the added advantage of flexibility--they can be
adjusted to different levels for different crimes. But judges, whose jobs
depend on judicial procedures being impenetrable, convoluted, and
self-contradictory, systematically conceal what they are thinking of when they
use the phrase "reasonable doubt."
The entire
purpose of legal tradition and precedent is to make outcomes predictable. But
judges have both the motive and the opportunity to contort tradition and
precedent in ways that render outcomes illogical and un predictable.
Respect for the law is enshrined in our culture, but it should not blind us to
the possibility that the law can be corrupted to serve sordid ends.
