I have been away from my blog of late because I was called upon by my county of residence to fulfill my civic responsibility as a juror in the circuit court. Although jury duty never comes at the right time (for me, it interfered with a long-planned vacation), I was actually a little excited when I was selected to serve on a real jury and see justice in action. Unfortunately, the experience turned out to be frustrating and unsettling at best.
I was appalled by how little my fellow jurors knew about our justice system. The idea of a presumption of innocence was lost on some, while the idea that the defendant could possibly be guilty was lost on others. Evidence seemed to be nothing more than artifact – it was personal experience that would decide the outcome of this case. I was shocked that some of my fellow jurors refused to follow the rules regarding discussions of the case outside of the deliberation room, and despite the judge’s explicit instructions, some insisted on discussing statements that had been, as the result of sustained objections, stricken from the record. And the lack of respect toward the judge on the part of jurors who clearly saw their time as being more valuable than his was nothing less than shocking. This jury of my peers frightened me, and it wasn’t because we disagreed on the verdict (we did, but I had expected as much). In the end, the behavior of the jurors, and the fact that some had not been honest and forthcoming during the voir dire process, required the judge to declare a mistrial.
But the issue that kept me awake all night during the deliberative process, and that I still cannot get out of my mind, is the way that television shows like CSI and Law and Order may be destroying our criminal justice system and making our country a much more dangerous place for all of us. Despite clear instructions from the judge, more than half of the jurors felt that an investigation of less rigor than that seen on TV meant that the “beyond a reasonable doubt” standard could not have been met. These people had no idea about the real limitations of forensic analysis, or the cost of performing a CSI-like investigation (which means that it isn’t done for most misdemeanor charges), or the amount of time and personnel it would actually take to perform these sorts of investigations on all cases, or how difficult it really is to get a good fingerprint when a piece of evidence is smaller than a postage stamp and was handled by an ungloved police officer during a search. If they can do it on CSI, then it should have been done in this case. More than half of the jurors believed that CSI is real and an investigation of any lesser quality means that the defendant could not possibly be guilty. Perhaps the defendant in this case was innocent, but a CSI standard for evidence means that a whole bunch of criminals are going to be found not guilty and released to our communities where they can commit more crimes.
For years I have worked on science and mathematics education reform, primarily with a focus on sustaining U.S. economic competitiveness. I’ve now decided that economic competitiveness is but a mere luxury. Instead, we need to work hard and fast if we are to preserve a system of justice that has served us well for over 200 years, but may become the next victim of “as seen on TV” expectations. Just a few years ago, a survey revealed that the majority of Americans learned most of the science they know from the television weatherman (or woman). I had hoped that a teacher or science museum might have been closer to the top of that list, but at least the daily weather forecast serves as a clear reminder of both the advances and limitations of our current technology. However, if people now learn most of the science they know from CSI, we’ve got some big challenges ahead of us.
12 Responses to Made-for-TV Justice
wbalda - October 16, 2009 at 8:15 am
“Don’t believe everything you think” works from jury rooms to tea parties. Perhaps we need Defining Reality 101 in all general ed curricula?
krn1951 - October 16, 2009 at 8:37 am
I thought the order of whose time is more valuable in a jury trial is (1) the attorneys, (2) the expert witnesses, (3) the judge, (4) the jurors, and (5) the plaintiff. Reasonable doubt is a good principal of our justice system and shouldn’t be dismissed just because the crime is so small it didn’t merit a thorough investigation. If the defense can make the case for reasonable doubt, the jury is supposed to acquit.
tribblek - October 16, 2009 at 8:59 am
Great article. I have served on numerous juries (around 10 — which seems a lot for someone barely into their 40s), and “shocked” is exactly the word I use when I describe my experiences. The last jury on which I served, 9 of us felt the prosecution had not made a strong enough case (of sexual assault/rape) and were prepared to issue a “not guilty” verdict. However, there were 3 people who had (against judge’s orders) “made up their mind” to send this person to jail. They would not deliberate, they would not be swayed, they would not give any rationale for their decision. I seriously questioned the mental competency of one of the 3. As foreman, I reminded them that it was their duty to debate the evidence and follow reasoned discourse. They would have none of it. After three hours of this nonsense, I had the unpleasant task to admitting to the judget that we were hung.WBALDA, yes, a “Defining Reality” curriculum would be welcome. The TV shows also point out that “the system isn’t perfect” and that sometimes the guilty go free and the innocent are locked away. This is not a symptom of corruption among the professionals, but of the fading mental faculties of the jury pool.AS SEEN ON TVL How scary is that?
22266017 - October 16, 2009 at 10:46 am
There’s a good book on this topic. http://www.amazon.com/C-S-I-Effect-Katherine-Ramsland/dp/0425211592
mbelvadi - October 16, 2009 at 11:24 am
Your comments conflate two different problems – technical limitations in forensic procedures, and cost limitations. I can accept that the TV programs may give distorted ideas of what is technically possible. However, when you’re dealing with a human being’s life and livelihood, I reject the idea that some cases are too minor to be worth spending the money on the lab work necessary to guarantee a just outcome. Even a misdemeanor on your record could ruin some people’s career. We spend tens of thousands of dollars routinely to extend the lives of very sick people by just a few months, but begrudge a possibly innocent person a few thousand to ensure them justice? Given the disproportion of minorities in the criminal justice system, I can’t help but wonder if racism isn’t a factor in that equation.
_perplexed_ - October 16, 2009 at 12:01 pm
So, what are we to do if we conclude that a substantial minority of citizens are unfit to serve as jurors?
fossil - October 16, 2009 at 3:31 pm
The curent system of trial by jury stinks in so many ways that it seems impossible to enumerate them in anything shortr than a full-length book or two. Sometimes the flaws work in favor of defendants, more often in favor of the state. The most severe illusion is that a trial represents a “search for truth”.What I find most disgusting is the bulldog attitude of most prosecutors; once they decide to bring a case to trial, they are rarely able to change their minds on the basis of new evidence. Even worse, once they secure a coniction, it’s taken to be a trophy on the wall which may never be surrendered, no matter what the facts indicate. The recently well-publicized Willingham case in Texas is particularly glaring because the defendant was subsequently murdered by the state on the basis of a trial whose “expert” testimony came from an untrained idiot, and where Willingham was basically judged and condemned because he was soething of a low-life with a preference for Heavy Metal. More horrifying still was the smug seof-certainty of the prosecutor, now a judge, whose epistemology is pre-neolithic, not to mention the rank cowardice of Gov. Rick Perry, who fired the experts about to conduct a formal inquiry.That’s one case we know about; no doubt dozens of others lie uninvestigated. And it’s not just Texas; the Tankleff case in NY is nearly as terrifying, though no death penalty was involved. But it was a perfect illustration of the intransigence of prosecutors in refusing to reconsider a case once it’s been won, and points up as well the stubbornly naive prejudices of juries who refuse to look at the process by which “confessions” ar4e elicited,In similar fashion, one can impugn the rotten judgement of jurors to whom “eyewitness” testimony is unimpeachhable, despite the massive evidence of human fallibility and of the maleability of meory. This is a situation where real science, such as that done by Elizabeth Loftus, is tossed into the trashcan by the self-same jurors who venerate the fictitious CSI model of forensic science.This is not to say that the only outrages come from the prosecutors; I assume everyone remembers OJ and Johnny Cochrane. As a rule of thumb, the wealthy usually manage to worm their way out of the most serious charges, evidence be damned, while thepoor are 95% convicted as soon as a cop looks at them cross-eyed.Matters are no better in civil cases, where large corporations can usually win by the delay and obscurantism that a phalanx of legal mercenaries provide. But sometimes matters go the other way, with deep-pocketed but guiltless defendents forced to pay through the nose as the jury’s prejudices dictate. The silicone breat implant case is an obvious example–yet another incidence of scientific and staqqtqistical evidence being flushed down the toilet by juries utterly unqualified ot evaluate it.Alll the same, we are constantlyreassured, on the basis of no evidence whatever, that the American jury system is the best in the world and ther best that could possibly exost. The hell it is; the obstacles to an honest search for truth thrown up by bar and bench alike (I dona’t share Ms. Jones’s respect for judges or the pettifogging rules that control them) make truth an orphan in our courts.But what can we do to reform a system so deeply pathological. Not much, I think. For my own part, I simply refuse to have any part of it. Nothing gets you dismissed from a panel faster than a general contempt for the trial system, easily expressed during voir dire by saying “no!” everytime an attorney asks a question to which the anticipated, mechanical answer is yes, e.g., “Can you follow the judge’s instructions?” (I probably can’t and I won’t say that I will.)
mbelvadi - October 17, 2009 at 7:29 am
fossil – I agree with everything you said, but what’s the alternative? Having rich people (eg elected or appointed people like judges, who are almost always from the top tiers of the socioeconomic strata) be the ones to rule over poor? FYI, another way to get out of jury duty in a criminal (maybe not civil) context is to mention that you believe in “jury nullification”. Judges wouldn’t want anyone who even knows that concept exists anywhere near any other jurors. It’s also probably the best argument in favor of the jury system, because it provides an ordinary-person reality check on the unfair laws and application of law as passed down by the supposedly elected elites, which is why the entire formal legal system has done everything possible to suppress the concept.
suomynona - October 17, 2009 at 9:52 am
Here, here, fossil. There are considerable flaws in the trial-by-jury system, as there are in, well, democracy. It’s a dangerous thing in my view to romanticize these systems as we often do, and to think that simply because they’re workable, maybe even the most workable, that they won’t collapse here and there. But the other side of it is important: flawed systems have a worse chance of functioning properly and at the same time a better chance of screwing things up when the quality of the people involved is low. For me it all comes back to the same basic problems that Jones raises in her post and that plenty of us have been harping on for many years before I was born: there is a base level of knowledge and facility that a citizenry must have in order to have high-functioning legal and governmental systems. The first thing autocratic or plutocratic governments do en route to disaster is find ways to make the people stupid. We seem to have democratized the perpetuation of stupidity, anti-intellectualism, and hasty decision making. It’s bad for our legal system and it’s bad for the republic.
fossil - October 17, 2009 at 4:35 pm
I’m vain enough consider myself an expert in getting off jury duty, based on my last bout with the system, where they tried to put us on a superfluous civil case that threatened to go on forever– multiple plaintiffs, multiple defendents, all squabling for the same pot of money. It was, in fact, a case where the plaintiffs had already won a judgment saying that they were entitled to damages, but where the jury in that case had failed to assess who was due how much from whom. In other words, it was a case that should have been settled by a special master, without troubling a jury to waste three months of its time. Unfortunately, the fact that it was a “contingency fee” case for the various plaintiff attorneys ruled out any such sanity.In any case, in a brief voit dire, I managed to insult both the plaintiff’s and the defendant’s attorneys, to express deep skepticism about the credibility of “expert witness” testimony and, to top it all off, to denounce a then-recent decision of the state’s highest court restricting the ability of a juror to bring his or her own specialized knowledge to bear in deliberations with felow jurors (e.g., a doctor can’t use his professional insight to persuade the jury to take a certain view of “expert” testimony on madical issues.) As a mathematician, I found this limitation downright insulting, since it meant that I could not, in theory, bring my expertise to bear in situations where laymen have a hard time assessing the weight of probabilistic evidence.At the end of my performance, the judge (who had to smother her laughter at several points) found that she had to dismiss not only me, but the entire panel of prospective jurors in the room. Score one for the good guys, though I pity the poor judge, who had been trying for seeral days to empanel a jury in this wretched case.Getting back to less parochial considerations, and to criminal cases in particular, I think it’s clear that a number of European nations have superior systems of justice. Specifically, many of them use juries that are made up of Assessors–Court Officials with a semi-judicial function, along with a few laymen. There is also another level of authority between prosecutors and the trial court, procurators who are as obliged to exculpatge defendents as much as to encourage warranted prosecutions.But clearly, this arrangement hasn’t a chance in hell of displacing our pseudo-Anglo-Saxon monstrosity of a criminal justice system.
allens - October 18, 2009 at 4:46 pm
Given the lack of reliability of eyewitness evidence, as found by multiple psychological studies, perhaps it’s better if the jury doubts any evidence that isn’t concrete. Admittedly, there also needs to be a lot more doubting of a lot of forensic evidence in terms of the possibility of lab errors.I sympathize with “fossil” regarding the nonsense of a jury member being barred from using all available knowledge to help decide a case. The reverse really needs to happen – if a case involves significant technical issues, then only jury members who are capable of understanding said issues should be seated.Incidentally, it would probably be helpful for not only witnessess but attorneys and judges to swear to tell the truth, the whole truth, and nothing but the truth, and be held liable if they did otherwise. Attorney summations in particular should be required to be factually correct (not messing up probabilistic arguments, for instance).
davi2665 - October 20, 2009 at 3:46 pm
From my observations in several trials, the jury members usually have a background in logic, reasoning, math/probability, science, and other such useful skills somewhere in the range of Marge and Homer Simpson. That is because those who do possess such skills usually manage to get out of jury duty. However, the saving grace may be the common sense many jurors have, coupled with good BS detectors. The attorneys should be assumed to be lying, or at least misrepresenting the situation, rather than seeking the truth, because that is what they do best. The prosecutor is mainly trying to get a case resolved in the most expedient manner possible, the facts or truth aside. While this appears discouraging, it is better than having some groveling politico judging a case based on what is best for the “state”, its lackeys and cronies, or the ideologues behind the scene pulling the puppet strings. One possible solution for the jury issue is to not allow the vast majority of well educated or employed individuals to be excused from jury duty and require that they serve.