Knowledge and Juries

Here’s an idea meant to provoke. The motivation is the jury verdict in the Michael Jackson case, but any significant jury verdict could be used instead.

The jury finds the defendant not guilty. As we all know, this finding isn’t supposed to express the proposition that the the defendant is innocent. The remark is supposed to be a remark about an evidential relation, to the effect that the evidence fails to confirm to the needed degree that the defendant is guilty.

An alternative practice would be to have the jury listen to the arguments of the lawyers, and simply pronounce either, “Yup, he did it,” or remain silent. They could simply be asked, “is he guilty?” and any consensus other than “yes” wouldn’t convict.

What reasons are there to prefer the actual system over this possible one?

The one I like is this: internalism of some variety is assumed by the practices of the courtroom! As far as I can see, the idea must be this. Telling whether the guy did it or didn’t do it can be relatively obscure, but even an ordinary, reasonable person can tell what the evidence confirms or doesn’t confirm (as long as we put restrictions in place that don’t kick in unsavory elements into the deliberations, such as emotive ones). In the search for truth, where we often can only see through a glass darkly, there’s always something much easier to see–namely, what the evidence favors and to what degree it favors it.

Any other explanations?


Knowledge and Juries — 3 Comments

  1. Jon,

    I don’t know whether you are a fan of bad cop shows, but having watched far too many, I’ve seen interviews with ‘experts’ who can teach you how to become a human lie detector. One trick is this. If during an interview the suspect looks up and to the left, this means that the suspect is getting creative with his answers and you know the guy is being less than honest in his responses. This cue apparently explains a detective’s spontaneous judgment. The detective would say that he could just ‘see’ that the guy was dishonest. The eye movements causally explain the judgment but would never cross the detective’s mind. Something similar might be said for the perception of guilt.

    Alas, few of us are like this. I’m gullible to the extreme and need training to distinguish the honest from the dishonest and the guilty from the innocent. I’m not sure that the reason to prefer the actual system to the imagined one must rest on the observation that our access to the evidence and the evidence’s significance is less problematic than our access to the guilt or innocence of the client. In fact, I’m not sure it is necessarily true that across the board, access to guilt or innocence is so mediated. Some can just ‘see’ that someone is guilty. That being said, for reasons of accountability, we might demand that someone’s vote to acquit or convict be based on articulated grounds because of the importance of accountability or because we think that as a rule, trials will go better if we insist that jurors base their decisions not on what they know but on the use of acceptable strategies for determining guilt or innocence. The justification might be ‘externalist’ in the same way that the use of what Rawls calls ‘maxims’ and some call ‘rules of thumb’ are justified by appeal to the long-term consequences of making judgments on the basis of rules rather than an attempt to respond directly to the reasons. So even when someone thinks it is ‘evident’ that the suspect is guilty, it is better that there is a rule that excludes the direct appeal to this fact (even if known immediately). The view would look on the surface internalist, but the justification for the ‘internalist’ methodology is externalist. (I’m appealing to a distinction that is like Pollock’s distinction between belief and norm externalism).

  2. Well, here’s a stab at an alternate explanation. As one of my wise old professors told me once in graduate school, the goal of a trial is not truth, but rather justice. Truth is, of course, relevant to justice in the courtroom, but it is not constitutive. So, we have lots of rules regarding what can be counted as evidence, under what conditions the defendant can be questioned (e.g., no torture so long as you’re not Arab-looking)*, and so on. Now there would be little point to many of these restrictions if we then told the juries to rely on hearsay, gut feelings, the squinty eyes or honest face of the defendant, and so on to affect their decisions.

    You might see this as a way that the “system” forces jurors to rely on genuinely reliable methods of determining guilt or innocence, rather than unreliable hunches and what have you, as Clayton seems to be suggesting. But many of the procedural restrictions make it *less* likley that the truth will out. For example, if recorded conversations between the defendant and his counsel were admissible in court, we’d probably get more “true” verdicts. But, we as a society have decided that, even so, justice would not be served by that arrangement. So, I think it is probably a combination of preventing people from relying on genuinely unreliable methods and the protection of the defendant’s rights that explains the current system.

    Then again, I’m home with a fever, so I could just be delerious…

    *irony, of course

  3. There seem to be a few issues in play:

    1) Should a jury’s verdict be understood as a finding on the weight of the evidence, or as a finding on the actual facts in issue?

    2) Should the jury’s verdict be based exclusively on the evidence presented in court and not on knowledge or evidence that the jurors bring to the table?

    3) To the extent the jury is supposed to base its verdict solely on evidence presented at trial, what is the best explanation for that rule?

    As to (1), quite honestly I don’t know what the answer is. That an acquittal in a criminal proceeding does not preclude a subsequent finding of liability against the same defendant in a civil case suggests that, indeed, the jury’s verdict is in essence a statement about the weight of the evidence. On the other hand, there is the rule against double jeopardy. That rule, of course, might be explained ultimately in terms of considerations of justice (cf. Wayne’s post above), but I don’t think that can be the whole story. I think part of the explanation must be that the jury made an actual finding of fact that the defendant is innocent in the previous trial.

    As to 2, again, it is quite complicated. The jurors certainly are free to make a gut credibility determination about a witness’s testimony, even if they can’t articulate that determination any more precisely than that they simply didn’t believe the testimony. On the other hand, jurors generally are prohibited from relying on specialized knowledge one of their number happens to possess. So it’s awfully difficult to know what to say about jurors basing their credibility determinations on specialized knowledge about body language, etc.

    As to 3, I don’t think this can be explained solely in terms of truth conduciveness. I think it has to be explained in part in terms of the procedural rights of the litigants.

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