Our jury system is supposed to maximize justice. So how come our system only makes it harder for jurors to do the right thing?
Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients. A hundred pages of instructions. Which the jurors are expected to absorb through their ears. Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.
Nobody really believes that jurors remember the details of their instructions, of course. And nobody really believes that they apply those instructions to the letter. It’s just a useful fiction. Like so much of the law, what’s important is that the litany was spoken. Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.
The system is more interested in finality than with the truth, is why. The truth is nice, and something to be hoped for, but it isn’t necessary. The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts. The judge can then apply the law to these official facts, and then everyone can close the book on that matter. It’s a kind of justice, perhaps, but it’s not about truth, and it never has been. The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.
That’s really not a huge task. Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward. In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.
Nevertheless, we sure make it hard for them to do even that.
The elements they are to consider, after all, are in the judge’s instructions. And the judge won’t read those instructions to the jury until after all the evidence is in and both sides have summed up. So the whole time the jury is listening to the evidence, they don’t know what they’re supposed to be listening for. The judge never told them what the elements are that the prosecution has to prove. And woe unto any lawyer who tries to do the judge’s job and instruct the jury beforehand. No, the jurors now have to go back in their memory and figure out if the evidence they remember satisfies each of the elements.
This is all the more difficult in that most jurors don’t get to take notes. They’re just presumed to have remembered everything that was said, which of course is impossible. And they can’t take notes during the instructions, either. They’re just presumed to remember all that mumbo-jumbo as well. Don’t imagine for a moment that they do.
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It’s as if we stick 12 good citizens in a box and tell them another human being’s fate rests in their hands. If they do the wrong thing, somebody is going to suffer severe, life-changing harm. An innocent person could lose his life or his liberty. A victim could be unvindicated. A dangerous person could go free to harm again. It’s a massive responsibility to do the right thing.
They don’t know any of the relevant facts, and were in fact specifically chosen because they don’t know anything about the case. We’re going to give them a whole bunch of facts with which to make that determination, but some of the testimony might be wrong. It’s up to them to figure out what to believe.
Some of the stuff they’re going to hear will be very important. Some won’t be. We’re not going to tell them which is which.
They won’t know until it’s all over what they should have been listening for. And we won’t let them take notes to jog their memory.
They will be given the testimony and instructions in the absolute worst possible way, by spoken word. They cannot read the instructions themselves. They cannot read the minutes of the testimony themselves. It can only be read to them. Even if they are actively listening — a rare event to begin with — humans simply do not recall much of what is merely spoken to them. And what they do recall, people tend to get wrong, filling in their own words and meanings.
So we put all the pressure on our juries, then make their job far more difficult than it has to be.
Is it any wonder that experienced lawyers say a jury trial is a crapshoot? Nobody ever knows what a jury is going to do — if they say they do, they’re deluded or lying. Nobody knows what a jury is going to do, in large part, because the jury doesn’t even know what it’s supposed to do.
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The solution is simple. Give the jurors a written list of elements, and what they mean, before the trial starts. Let them take notes. Let them bring the transcript with them into the jury room. Let them bring the instructions with them into the jury room. There is no rational reason not to do any of this. The only reason we don’t now is because of this arrogant “they can’t be trusted with it” attitude, that supposes jurors would interpret things wrong, or stop paying attention to read or write stuff down. This is contrary to real life, where being able to re-read and digest written words improves accurate understanding, and where taking notes increases attention and retention.
The solution is simple. Folks have been proposing modest fixes like this for years. And yet nothing changes. We in the law tend too much towards the “it was good enough for us back in the day, it’s good enough for us now.” We forget that it never was “good enough,” and it can certainly be better.
In the meantime, our jury system will continue to defeat the justice it is supposed to serve.
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[P.S. No, we didn't just lose a trial. We haven't lost a hearing or a trial since 1999. This is a legitimate gripe, not sour grapes.]