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| | | Eyewitness Testimony and Faulty Memory
First, jurors receive scant information and no official instruction as to the unreliability of eyewitness testimony. Jurors are repeatedly told, by defense counsel and by the judge, that witnesses may lie; they are essentially never told that witnesses may be "telling the truth" about what they saw and yet still be spewing misinformation. Lawyers undoubtedly make this argument sometimes, but it so violates people's preconceptions that it probably is not worth the effort. Yet modern research shows that memory is notoriously malleable, link, all the more so when the eyewitness was involved in a terrifying or violent crime Schacter excerpt. This would not be a problem if jurors already believed that eyewitness testimony was highly error-prone; instead, jurors come in believing it is the evidentiary gold standard. | |
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< | Lie-Detection
Similarly, jurors, like all people, believe that are at least decently skilled at telling when someone else is lying. Indeed, given the human tendency to inflate one's perception of one's talents, link, the average juror most likely believes that she is a better-than-average lie detector. Yet, research suggests that ordinary people cannot detect lies at better-than-chance levels: link. Even so, the jury is not told to disregard a witness's demeanor when guaging the truth of what was said. To the contrary, juries may well be encouraged by judges and counsel to take close account of such evidence. | >
> | Jurors' Lie-Detection Abilities
Similarly, jurors, like all people, believe that are at least decently skilled at telling when someone else is lying. Indeed, given the human tendency to inflate one's perception of one's talents, link, the average juror most likely believes that she is a better-than-average lie detector. Yet, research suggests that ordinary people cannot detect lies at better-than-chance levels: link. Even so, the jury is not told to disregard a witness's demeanor when gauging the truth of what was said. To the contrary, juries may well be encouraged by judges and counsel to take close account of such evidence. | | | | |
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< | Error Rates | >
> | Evidence of Errors by Other Juries | | | A third meta-evidentiary fact kept from the jury is evidence of errors made by other juries. DNA evidence and confessions by other criminals have exonerated many wrongfully incarcerated defendants, and no one doubts that many wrongfully convicted defendants remain un-exonerated. Unlike the two topics just discussed, jurors' preconceptions in this regard are roughly, if not numerically, accurate. Jurors know that some people innocent of the crime with which they are charged are found guilty. But no judge would instruct a jury to consider this fact. A judge that did might find herself reversed on appeal. Furthermore, defense counsel would clearly be barred from introducing such evidence on relevance grounds. But, of course, if reasonable people applying a "no reasonable doubt" standard get it wrong more than a negligible proportion of the time, then evidence to that effect is highly relevant to a jury made up of such people. Unfortunately, even jurors who consider the fact that erroneous convictions do occur are subject to "focusing" errors: because the primary issue at trial, defense counsels' efforts notwithstanding, is a single (or multiple) bad act by the defendant(s), jurors are prone to view the evidence through that prism and overestimate the strength of the prosecution's case. Jurors might then reason that, even if other cases were wrongly decided, this "strong" case could not fall into that category. (For some examples of modern psychological research on focusing errors, see Gilbert, Kahneman and Tversky (wheel of numbers)).
Underweighting Low Probabilities of Innocence in Applying the Standard of Reasonable Doubt | | | This problem is endemic to all cases involving low, but not zero, perceived probabilities of innocence. Assume that the jurors in any given trial construct some probability of innocence based on the evidence and that these subjectively-determined probabilities, are in the same ballpark but vary around a mean. In cases where the probability of innocence is low, jurors will systematically underweight those probabilities downward. To the extent that subjective determinations of the probability of innocence go into jurors’ decisions of whether or not to acquit, the cognitive tendency to underweight low probabilities will cause more jurors to vote guilty than is justified by their own subjective weighing of the evidence. | |
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> | An extreme, but possibly justifiable position would be that, knowing that juries made up of 12 reasonable people who had no reasonable doubt as to a defendant's guilt were wrong, it is always wrong for reasonable jurors to convict, because apparently even reasonable people with no reasonable doubt can be mistaken. | | | Where Does This Leave Us? | |
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< | Psychologists as judges?
Discuss Frank or other readings?
Why don't we just say, "absolutely no doubt," knowing that jurors tend to overconvict anyway? | >
> | There are at least three approaches to dealing with the issues highlighted. | | | | |
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< | Some ways to alleviate within the system
But, overhauling of the system?
Lying - but questioning can still trip jurors up
are we just moving dials up and down to attain a conviction rate proper for comfort level? we're not after truth at all!
Subsection B | >
> | First, we could scrap the jury system entirely and rework the criminal justice system from the ground up. This appears to be a non-starter. | | | | |
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> | Second, we can recognize and work with the realization that the criminal justice system is not intended to be a truth-finding system, but rather a mechanism that provides us with the modicum of comfort necessary to live with incarcerating fellow citizens. To the extent that it's all "just a game," we can simply adjust dials upward and downward in order to produce results that make us more comfortable. For example, if we know that jurors systematically underweight low probabilities of innocence, we can instruct them not to apply a "reasonable doubt" standard, but rather a standard of "absolutely none, not even a hint of a doubt." This dial-shifting would get at what we presumably want - jury decisions that more closely reflect jurors' actual impressions of the probability of innocence - in a roundabout - and yes, disingenuous - way. Of course, changes like these stem from too cynical a worldview ever to be put into practice. | | | | |
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> | Third, we can work within the confines of the system. While ordinary people cannot detect lies, experts can do so, both from real-time demeanor and from careful study of facial expressions on videotape link. Is it too fanciful to hope for court-appointed experts, trained by Paul Ekman in truth-detection methods? With respect to eyewitness testimony, it does not seem at all unrealistic to expect that someday soon, we could have a standardized instruction specifically highlighting the difference between "lying" and "telling the truth mistakenly." But such solutions are far from satisfactory. It is too soon to tell whether research in cognitive psychology will have a modest or a revolutionary impact on the criminal justice system, but as recent findings begin the slow process of seeping into the popular consciousness, we are not far from finding out. | | | | | |
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< | 3) We keep lots of "external" evidence from the jury: parol evidence rule, unreliability of witness testimony, expert testimony about the number of wrongfully convicted people exonerated by DNA evidence, expert testimony about jurors' own cognitive biases (all we have are instructions from the trial judge about disregarding biases and judging the evidence). Logically, if some people are convicted even though a group of 12 reasonable women and men supposedly finds that there is no reasonable doubt as to their guilt, then jurors should never vote to convict - because they should not be able to trust their own impulse that there is no reasonable doubt, because other groups of 12 reasonable people get it wrong. Furthermore, do the jury instructions on reasonable doubt - that doubt that would give pause before making a life decision or a business decision - encourage jurors to bring to bear faulty cognitive systems? Prospect theory tells us that we tend to assign low-probability events a zero probability - is this the cognitive system we want governing decisions about guilt or innocence? Do our jury instructions encourage jurors to assign to low probabilities of innocence a zero value? What a "reasonable doubt" means can be affected in at least two ways.
First, do we as a society - and hence, judges and lawyers, as representatives of that society - mean to convey by "reasonable doubt" that level of reasonableness that gives us sufficient comfort with our verdicts to live with ourselves, and do jurors (implicitly?) know to interpret the phrase through that lens? Along those lines, do the demands for an adequate comfort level change over time? In 1600's Salem, the populace appeared to be relatively comfortable (but maybe not, given some historical accounts) with tests of guilt that were truly random - does she float? Today, we probably do somewhat better in determining whether the accused actually did what she or her is accused of, but we obviously don't do it perfectly - so have the demands of achieving a sufficient comfort level increased with improving crime-detection technology? Does the definition of "reasonable" change in accord with the times?
Second, do jurors themselves interpret the phrase as to accord with intuitive notions of justice? Does the phrase reasonable doubt drop out and get displaced by gut feelings? Are jurors doing anything different than what readers of sports news doing right now as they determine whether Brian McNamee? or Roger Clemens is telling the truth?
5) How do the alternatives to the jury system play into some of these things? One alternative - trial by judge - is frowned upon for several reasons. First, it is seen as elitist, and it is presumed that the people would not be happy if their liberty depended solely on state actors. Second, there is a fear that trial by judges would get us closer to a police state. But what about the power judges already have to "take the case away from the jury" through JML. Is this power exercised often enough that we do, in effect, have a system of trials by judge? Or do we really allow the community to have its say through jury-driven decisions? Clearly, some lawyers in certain types of cases continue to believe that jury trials produce much higher likelihoods of success, though some studies cited in our Civil Procedure casebook found that judges and juries tend to reach verdicts of "liable" about the same proportion of the time (I believe that the confounding factor - that the cases that are tried by judges might differ in relevant ways from the cases tried by juries - was not taken into account).
7) Many, many trials turn on the competing credibility of various witnesses. Studies show that most people are not better than chance at telling when someone is lying (I think - have to look this up). One exception was secret service agents. Why don't we have secret service agents as jurors? Or rather, why don't we have professional jurors, with the kind of training that makes secret service agents good at seeing who's telling the truth? This presumably creates the same criticisms directed at a system with all bench trials - but isn't it better, because at least we're making some attempt to see who's actually telling the truth? Still, even secret service agents obviously were not fallible. When most cases turn on competing credibility, and when we have no lie detectors, isn't it clear that trials are just probabilistic, and if so, aren't there cheaper ways of rolling the dice?
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