Can we count on juries?

Rick Weber Law, , , , ,

Towards the end of this week’s Cracked Podcast an important issue was raised: juries are peopled by human beings and human beings are not naturally good at figuring out cause and effect. Over the last few hundred years the sort of evidence juries would have to evaluate were fairly simple; things like “does the glove fit?” (Okay, that’s a bad example.) But now juries are faced with expert witnesses discussing things like DNA evidence which requires a jury capable of interpreting statistical evidence. This is fine if the defendant has the money to hire their own expert witnesses, but for poor defendants they might well get railroaded by the ignorance of the jury. Is there anything that can be done?

6 thoughts on “Can we count on juries?”

  1. I didn’t listen to the podcast, so forgive me (please?) if I repeat the arguments made there. To answer your question, I would tentatively argue ‘maybe’.

    On the one hand it’s obvious that juries, like democracy itself, are inefficient and just generally a pain in the ass. On the other hand, the alternatives don’t take into account the long, slow process that has led to juries and elections. Human beings are imperfect, and I think that democracy and juries are a reflection of those imperfections. This is not necessarily a bad thing, but just a thing.

    Whenever (quite valid) criticisms of the jury as an institution are brought up, I always think of Tocqueville’s ethnographic account of the US, Democracy in America, and his musings on the subject. I’m going to quote at length some his thoughts (brought to you by marxists.org!) and then briefly comment on them. First up:

    The system of the jury, as it is understood in America, appears to me to be as direct and as extreme a consequence of the sovereignty of the people as universal suffrage. These institutions are two instruments of equal power, which contribute to the supremacy of the majority. All the sovereigns who have chosen to govern by their own authority, and to direct society instead of obeying its directions, have destroyed or enfeebled the institution of the jury. The monarchs of the House of Tudor sent to prison jurors who refused to convict, and Napoleon caused them to be returned by his agents.

    Okay, so the “supremacy of the majority” sounds bad. It is bad. Yet in a world of trade-offs, is sovereignty of the people worse than the sovereignty of one or a few? My definition, not of ‘sovereignty’ but of ‘people’, may differ slightly from Tocqueville’s, but that’s an argument I’d much rather have versus one that deals with, say, whether or not my dictator or my oligarchs are more just. More Tocqueville:

    The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people, and this is, in my opinion, its greatest advantage. It may be regarded as a gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties. I think that the practical intelligence and political good sense of the Americans are mainly attributable to the long use which they have made of the jury in civil causes. I do not know whether the jury is useful to those who are in litigation; but I am certain it is highly beneficial to those who decide the litigation; and I look upon it as one of the most efficacious means for the education of the people which society can employ.

    This might be a bit outdated. Lawyers and judges are not the most educated members of society anymore (which draws questions, in my mind, about the strength of republican institutions in the US today), but they still have a useful, specialized knowledge of how society works, and the jury makes this accessible – inefficiently no doubt – to the general public. The institution of the jury forces citizens to govern themselves in a republican manner. Now you may say “force sucks,” and I agree, but what are the trade-offs involved here? One last Tocqueville excerpt:

    The jury, then, which seems to restrict the rights of magistracy, does in reality consolidate its power, and in no country are the judges so powerful as there, where the people partakes their privileges. It is more especially by means of the jury in civil causes that the American magistrates imbue all classes of society with the spirit of their profession. Thus the jury, which is the most energetic means of making the people rule, is also the most efficacious means of teaching it to rule well.

    This observation made me think of Bruno Leoni’s Freedom and the Law, which argues that judge-made law is decentralized and superior to the centrally-planned legislation passed by parliaments.

    In general, this is a tough issue. Jurors are ignorant wretches. In reality, they’re probably not learning a damn thing about republican institutions. Everyone would rather be working or floating down the river. Yet as an institution, a bulwark against the tendency to concentrate political power, the jury has to be counted as among the friends of liberty. A less fundamental but tangentially related issue is, in my mind, the relative weakness of the criminal defendant these days. There has got to be a way to divert funds away from DA’s offices and towards the offices of public defenders. They’re both funded by the taxpayer, but the office of a DA is much more lucrative than the office of a public defender. Why is this?

    Reply

    • The Tocqueville(/Vincent Ostrom) point is interesting… this is a two way street and it’s not just a question of what the jury can provide, but also what the jury brings out of the case.

      Juries today (and probably always) seem to operate in a common pool environment. Watch a case, get it over with as quickly as possible, go home. In a larger society that attitude seems all the more likely. This might be another argument for smaller polities.

    • With markets we have feedback loops that are pretty good at forcing reality onto irrational beings. With common law generally we have a weaker feedback loop, but it eventually leads to some sort of stable equilibrium/path that matches up people’s expectations. And I can see how that would work with commercial conflicts (you and I enter an incomplete contract, something happens, there aren’t social/business norms that make it clear what’s supposed to happen, we figure it out in court).

      I can also see how the jury system would be useful in criminal cases when evidence can be interpreted in different ways and we need a set of the defendant’s peers to get a fairer situation. But I think Brandon’s point about the asymmetry in prestige and power between DA and public defender is ultimately the big problem.

  3. The only issue I see is scale. Thin markets don’t work well; juries are too small. The asymmetry problem is information asymmetry which, if we believe transactions cost economics, can lead to market failure. I think the construction of ‘futures markets’ can provide pecuniary incentives that could take care of information asymmetries in many cases.

    Reply

    • An interesting argument. Economist Robin Hanson put forth something like it in regards to elections: http://mason.gmu.edu/~rhanson/futarchy2007.pdf. I think what’s missing in yours and Hanson’s arguments is addressing the matter of whether or not juries/voting really do provide a two-way street for citizens.

      Also: Is the two-way street even desirable today?

Please keep it civil