The Jury: Trial by Idiots
The jury has long been a symbol of civilized justice and legal enlightenment. Representing both equality and the judiciary’s accountability to the people, it is a celebrated institution in every country that possesses it – so symbolic in fact, that dictatorial and authoritarian regimes the world over pretend to use them when pandering to democratic sensibilities.
But how effective are they really at rendering justice? In a litigious world where the dramas of the court room are transferable only through the sensationalist lens of Hollywood and the intimacies of lawyer-client relations remain the purview of the legal elite and those unfortunate enough to have required them, how many people can actually claim to be qualified to interpret trials and issue verdicts? Especially these days, when a fundamental knowledge of statistics and forensics are necessary to faithfully study evidence.
Juries are little more than spectators of an event they have neither the attention nor the expertise to justify presiding over. And they’re almost never your ‘peers’ as presumed. And what does that mean anyway? Who are my peers? People ten years older than me? People from entirely different socio-economic backgrounds? People from situations as such that they probably share not a single ideological belief of mine. How do you keep bigots off the jury and safeguard twelve, objective, open-minded individuals interested in nothing but the truth? You can’t, and that’s my point. Because even if you could find some objective minded folks, disinterested in either the defendant or prosecution, we’d still have their utter ignorance of law, court proceedings, and inability to interpret evidence to deal with.
There are three problems that damn trial by jury; they include the jury selection process, ignorance of legal procedures and lawyer-client relations, and then lastly, a failure to interpret both the evidence and exercise reasonable doubt. The American legal system is rife with examples of all these issues and more and we’ll explore a few of them while discussing ways in which we could improve upon them. The jury selection process, for example, is not irreparable but we’ll see that jury ignorance on the part of procedure essentially is. In the end I’ll put forward two alternatives to this highly flawed and primitive mode of people’s justice.
Let’s begin with jury selection and how it proceeds in the United States of America. Though the rules differ depending on whether a case is civil or criminal, the basic goal of the defense and prosecution is to create a jury that will likely decide in their favor. Each ‘team’ if you will, is allowed to arbitrarily ‘strike’ off a potential juror and can do so a limited number of times. This is literally case by case as the racial, class, ideological, and gender make-up of the jury can determine the verdict.
See how this already sounds unethical and reminiscent of a high-school debate competition? As opposed to the actual life or death scenario it is… Instead of focusing on objective and open-minded jurors both sides tend toward bias supporters of their intended outcome. This, of course, is why the ‘strike’ system exists – because if everyone was strictly interested in open-minded, disinterested jurors susceptible to persuasion only at the hands of the truth strikes wouldn’t be necessary. They are only necessary in a world where lawyers deliberately safeguard partisans of their clients’ legal agenda.
Now, even though these strikes are not supposed to be used based off one’s race or gender, because not all the strikes require a reason, obviously a lawyer can opt to do just that. In fact, studies already show that you can drastically increase the chances of a guilty verdict of a black citizen by simply barring any black jurors from sitting in. Duke University showed that when no black jurors are present black defendants are convicted 16% more often than their white counterparts. This gap is essentially eliminated when at least one black juror is present. Clearly race shouldn’t matter, and yet it does.
But racial discrimination isn’t the only problem. Even though jurors are supposed to speak honestly about what they know and what biases they hold during the selection process, they often don’t. Many people want to be on a jury and decide someone’s fate. Maybe the case is a big one, or it pertains to something they are emotionally invested in. In this way a court may have no idea that one or more people on a particular jury are there for sport and vicarious vengeance rather than for justice.
As for this ‘peers’ business, young people tend to make up a bulk of criminal cases and yet are substantially underrepresented in jury pools. These generation gaps can be used to the prosecution’s advantage when smearing the reputations of supposed young offenders. Anyone familiar with This American Life’s podcast, Serial, can see how this is a serious issue. Some jury is told about a teenager’s weed-smoking habits and the middle-aged mothers and fathers gasp, clutching their chests. A real drug user! And yet any college junior would roll their eyes at such an attack. And your point is? They’d all say.
The selection process could no doubt be improved. Less ‘random’ selection which leaves out massive segments of the population or better ways of determining that pool so as to avoid exclusion of already underrepresented groups – either would be helpful. I would also suggest forcing lawyers to ALWAYS give a reason for not including a juror, otherwise what is the point in admonitions against racial bias? Though still, even with such improvements, none of it will resolve issues two and three.
The great majority of jurors are unfamiliar with and fail to grasp legal procedure and the reality of lawyer-client relations. The first is obvious, but what do I mean by lawyer and client relations?
What I mean is that jurors may not realize why lawyers tell clients to do or say certain things which may, in the eyes of the jurors, appear suspicious. Again, I’ll reference This American Life’s podcast, Serial, where the defendant who was found guilty never testified on his own behalf. He was advised not to do this by his lawyer but jurors found it indicative of his guilt. Jurors were told not to consider this in their deliberations but they did so notwithstanding.
Jurors don’t and often can’t know what lawyers are telling their clients to do. This is, however, something a judge or another lawyer might reasonably predict since they have practiced law and understand the dynamics of shielding or making a client vulnerable for the sake of an advantage. The realities of legal brinkmanship are utterly lost on laymen jurors and are probably either ignored or misunderstood most of the time.
Court procedures can be equally tedious and mysterious to jurors. They may have no idea why a certain witness is no longer considered relevant, or why they must ‘strike’ this or that from the record and from their minds. This, by the way, is impossible to do anyway. Once you’ve heard it you likely won’t forget it, especially since you were just commanded to do so. And how many jurors are aware that lawyers know this and use it as a tactic to insidiously make known information they had no legal right to bring attention to in the first place? When you don’t know the rules of the game you are forced to learn and assume as you watch it, and this is too high stakes a game to allow novices to call the most important shots. More often than not, time is too short, and preparation too inadequate to validate a jury’s insights.
Evaluations of evidence are a whole other ballgame. Statistics and complicated forensic techniques have become an essential reality of trial. Understanding mathematical concepts like stats, how to interpret them, and how to apply them to a defendant’s probable guilt or innocence, are absolute necessities to administering a just verdict.
For example, we might have two different statistics in a trial. One that is directly relevant to a defendant’s guilt and one that is indirectly connected. In the first, if someone is struck by a bus of unknown provenance, and we find a company owns 90% of the buses on a given route, then this would seem to be quite relevant to the matter of who owned the offending bus. Further, it gives us a probability prior to the crime that this company had a 90% chance of owning the accused bus and thus had a presence at the crime scene. We may not know for certain that this company is responsible, but we do know for certain that their buses frequented the area. In the next case we will have no such certainty.
But if we have a genetic match, in which DNA at the crime scene and that of the defendant share a gene that is present in only 5% of the population at large then we must be careful to appropriately incorporate this data into our calculus of conviction. This would not mean our defendant is likely guilty. In fact, it only shows the likelihood that his DNA could match the true offender and further, it establishes no probability of guilt prior to the crime because it doesn’t put the defendant at or around the scene. Simply put, this particular stat establishes absolutely no likelihood of guilt without corroborating evidence. He is still just one of that 5% of the population that matches the DNA.
The difference between directly relevant stats like the first example, and indirectly relevant ones as in the second, is crucial and yet, how many people trust Joe Blow to distinguish between them? To give you an idea of just how insecure justice is in the hands of people like Mr. Sixpack, take a look at some of these horror stories.
Jurors, and even many statisticians themselves, may not appreciate other aspects of the evidence and probabilities shown. Consider this. Four genetic markers from a defendant match DNA at the crime scene and the stats show the rare likelihood of these four ‘independent events’ occurring simultaneously. This is determined by multiplying the probabilities that each event could happen.
We might have a 5%, 10%, 15%, and 20% frequency of each individual marker which, when multiplied, yields a frequency of co-occurrence at .015%. This predictably lends weight to the defendant’s guilt. But what if these genetic markers co-occur often, making them far from independent events? What if, genetically speaking, they are highly associated with one another? After all, the frequency of these genetic markers is usually not determined by direct observation but rather by the frequency of the individual markers themselves. If these events are even slightly dependent then our percentage could be vastly inaccurate.
Finally, we come to reasonable doubt. What is this unquantifiable term? Does it mean if there is any doubt, then acquit? Or does it mean, if there is just the right amount of doubt? And who defines reasonable? I didn’t think there was any reasonable doubt in the Casey Anthony case (she did it), or in the Trayvon Martin case (Zimmerman is guilty as sin), but apparently both juries disagreed. Reasonable doubt is hard to understand or make sense of when you fail to grasp every aspect of the scenario you are tasked to judge.
My solution to this problem is one of two options. I believe the jury is broken, always was, and needs to go. I think three or five judges on a panel would offer far greater insight into any legal case than a jury ever could. Judges were often lawyers themselves, they are well versed in the law and legal proceedings and understand how stats can be twisted to win an opinion – in short they are more intelligently skeptical and they are better qualified to render a verdict.
We might also employ professional jurors. What would that be? These would be people trained in law, legal proceedings, and even statistics so they could effectively interpret data in the light of a crime. Their identities would be anonymous (but only to the public) and their voting record would be confidential to make buying their votes very difficult (a threat which exists already). They would probably have to watch the trial apart from each other and behind a wall.
Either case, I believe, would offer a much better opportunity at administering justice.