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by Dr. Richard W. Morris, J.D., Ph.D.
Editor's Note:
Scragged has been concerned about injustices in our justice system for a long time. Recently, an experienced expert submitted a series of ideas for reform.
While we do not necessarily agree with all the specifics of these ideas, there is no doubt that changes to our system are urgently needed. Our hope is that his observations and musings may help all of us to think through the problems more clearly, understand the underlying issues more fully, and be better informed come elections.
What is the purpose of the ideal justice system you want to see? What would a trial look like according to that model?
A traditional courtroom is intentionally adversarial. The stated goal is to find the truth by letting the parties involved haggle over the facts, and an independent judge makes sure they follow the rules. But that is not how it works. Winning is the goal, not the truth.
Under our Constitution, the jury is a buffer between the state and the people. A nice thought, but it doesn't work. First of all, a judge can, and often does, "guide" what the jury hears. This guidance means the jury is in the dark about many facts, which leads to unjust verdicts. This essay ignores this aspect because there are bigger fish to fry.
Juries are expensive. When we think of this expense, we think of administration costs. Those are the direct expenses. The costs we see. There are also unseen expenses.
The unseen costs are significant. Unless the juror works for a government agency (like the post office, the city, or other public-trough), even a short-term trial affects the juror's income. With so many Americans living paycheck-to-paycheck, the income loss can be devastating to the individual, and the juror's family. It is also a loss to the employer who can no longer get the job done for which he hired the juror. Indeed, "civic responsibility" comes at a high total cost.
Even if somehow we could overcome the cost barrier, the issue is more serious.
Jurors are the fact-finders, yet have no education in the subject on trial. A universal rule applies: When you want a job done right, hire a professional. This holds true from brain surgeons to landscape workers.
Suppose for a moment we had a professional jury pool. Presumably, we would experience more "just" decisions. To do this, the selection process would need to find people with some expertise in the matter at trial. The pay must be high enough to attract qualified people. As things sit today, we hear the famous bromide that "nobody wants their fate decided by a jury so stupid they could not get out of jury duty." Compounding these problems: if they can't escape, they sit as slaves, which is not much better in terms of rending justice.
Rather than discuss how to select a jury, let's ask a more fundamental question: in today's world, why have a jury in the first place?
In law school, I learned various hypotheses about the origin of juries. The roots are still a mystery.1 Written history shows they go back at least to the assizes of Henry II,2 as a means of taking the census and collecting taxes. They evolved into "doing justice," and the Magna Carta in 1215 recognized the concept.3
Back then, hundreds of years ago, the cases were more straightforward. Jurors typically knew the litigants and about the dispute. Juries served to settle a quarrel between neighbors. Today court cases are more complex. Today familiarity with the litigants or the dispute, as Judge Brownes points out, is cause for disqualification as a juror.4
While British subjects a thousand years ago did not understand the mental machinations of cognitive dissonance, confirmation bias and self-justification, they had experienced an arrogant political class dressed in the elegantly robed-andwigged trappings of arbitrary authority. They viewed the jury as their best protection from the government's biased judiciary.
Most lawyers and judges, when asked about the purpose of a jury, respond: "To determine the facts." My, that does have a pleasant ring. However, it doesn't work.
Juries, for example, often rely upon the testimony of eyewitnesses. But modern scientific research in neurology, psychology and memory function, demonstrate an eyewitness account is not a reliable method to learn of the facts. Let me explain why.
Science now knows about such psychological processes of cognitive dissonance, confirmation bias, self-justification and a host of memory and thinking errors that operate in the minds of all humans — including judges, lawyers, and jurors. These processes cause people to receive information and remember events differently.
Thus compounding the fact-finding function because the jurors necessarily make thinking errors in processing the data.
Psychologists Carol Tavris and Elliot Aronson5 point out everyone has trouble accepting information that conflicts with a belief we "know for sure." Mark Twain picked this up a hundred years ago when he said: It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so.6
Tavris and Aronson illustrate the brain's "blind spots" that make us unable to see our own prejudices, biases, corrupting influences, and hypocrisies. They demonstrate that our memories tell more about what we believe now than what really happened then. Professor Steven Novella, an academic neurologist, devotes an entire lecture to the "Flaws and Fabrications of Memory" in his course Your Deceptive Mind7. These are important issues, sometimes literally the life and death of the defendant.
All of which raises the question: do untrained juries really discover the truth?
Probably not.
France uses a three-judge court and no jury. Perhaps we do not need a jury if we have a three-judge court. If we no longer have a political judiciary, then we no longer need the protection of a jury from that government. And modern cases are too complex for untrained finders of fact. If we eliminate juries, increase justice and cut both seen and unseen costs.
What about the Seventh Amendment guarantee of a jury trial? Fear not. The Amendment need not be repealed or modified. Left as is, the litigants could have the choice between the new system or the old-fashioned way: (A) judges appointed because they are cronies to successful politicians or take part in the selection of the judges; and (B) have their fate decided by juries too feeble of mind to escape jury duty or the three-judge court with judges having expertise in the subject of the trial.
While the civil jury is part of the fabric of our way of life, but if we keep doing what we've always done, we'll keep getting what we've always got. It is time to change the system and stop getting what we always got.
Endnotes
1. Brownes, Hugh Henry. Should Trial by Jury be Eliminated in Complex Cases? University of New Hampshire School of Law. http://law.unh.edu/risk/voll/winter/bownes.htm
2. King Henry II, ruled from 1154 to 1189, which is technically the High Middle Ages, but the use of the jury system appears to have stemmed from yet earlier times, even before the Norman Conquest in 1066. Baker, J. H. (2002). An Introduction to English Legal History (4th ed.). London: Butterworths. pp. 72-76. ISBN 0-406-93053-8
3. Magna Carta of 1215. The Document does not use the word "jury," but the function is set out. http://www.fordham.edu/halsall/source/magnacarta.html
4. Bownes, Ibid.
5. Tavris, Carol, and Aronson, Elliot. Mistakes were made (but not by me)—Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts. New York: Harcourt (Harvest Book), 2007. ISBN 978-0-15-603390-9. Especially Chapter Five, about the legal system. I recommend this book to everyone.
6. This quotation is widely attributed to Mark Twain, but the actual source is clouded in mystery.
7. The Great Courses, "Your Deceptive Mind: A Scientific Guide to Critical Thinking Skills," lecture 4. ISBN 978-1598038286.