Tuesday, December 09, 2008

Trial by Jury

Found this quoted on Drew Kaplan's blog - from an article by Professor Wimpfheimer:
The practice of American law often operates within what I would call a fallacy of law as truth. What I mean by this is that despite the fact that all the participants in a legal drama are fully aware of the fact that American law is a construct shaped by precedents over a long period of time and subject to the whims of multiple authors and interpreters, lawyers and judges pretend that there is a single entity called “the law.” It is almost as if this law is personified and has agency such that a lawyer can say that “the law” demands that you side with my client or a judge can write that “the law” wants to be fair to all ethnic groups. Even legal academics are not above this fallacy; certain types of scholars will write articles articulating a uniform philosophy of law on the basis of many disparate cases even in different areas of law and different jurisdictions. Sometimes, American legal practitioners are aware of the fallacy under which they operate but employ it because it is productive value and sometimes they are unaware of the fact that it is a fallacy at all.
As a juror in a courtroom, though, one cannot but be affected by the fallacy. Within the courtroom, the jury is socialized to believe that the trial is about the pursuit of a single true and correct ruling demanded by “the law.” Each lawyer turns to the jury and attempts to convince it that the law requires the jury to find for their client or for the state.
In other words, each side presents its case as if “the law” compels the jury unequivocally to find for it. The presence of the presiding judge further socializes the jury into this notion of a single legal truth by occasionally interrupting the proceedings to decide on minor bits of procedure—sustained or overruled.
Thus when it comes time for the jury to reach a verdict, it is possible as a juror to think that the process is like a test in school: there is a correct answer which they are expected to try to figure out. The jury deliberates on the opposing narratives of what “the law” demands before deciding which one is the single truth.
If we reflect on these issues further, though, we can realize that the very process of the trial is evidence that the fallacy of a single legal truth is a fallacy. If each side can frame its case through an interpretation of the law that finds unequivocally for its interests it should be clear to us that the notion of a single legal truth in American law is always just a productive heuristic device.
In fact, if the purpose of the trial would be to determine the correct answer, the American system should eliminate the jury completely. Since the judge is better schooled and usually smarter than the aggregate juror, we would be more likely to get the correct answer if the judge figured it out on her own. If we had a math competition and needed to get the correct answer, would we have the expert teach a novice and have him answer the question or would we have the expert answer the question herself?
What is the purpose of a jury? One purpose is to dissipate some of the power that had historically been located in a judge’s hands. Now if law was just a computation, it wouldn’t so much matter that the law was in one person’s hands; but since determining a legal ruling involves subjectively choosing from among multiple options, there is a significant degree of subjectivity involved in such an act and that subjectivity is dangerously empowering. So the American system relieves the judge of the power to rule and hands that power to a jury of one’s peers. In the course of doing that, the structure of judge and jury makes manifest the distinction between the legal fallacy of a single legal truth and the reality of a subjective determination of a verdict from among multiple options. In other words, while the jury may think that its purpose is to figure out the one true legal answer, the very structure of a jury system testifies to the fact that they have more than one possible choice. Moreover, because the jury system relieves the judge of this subjective choice it places responsibility for that choice squarely on the jurors. This means that whereas the judge through her rulings from the bench contributes to the fallacy of a single truth and to justice as an exercise in figuring out what “the law” requires, the jury symbolizes the fact that a verdict requires someone to take responsibility for multiple options within the law. The trial jury embodies the taking of responsibility for a legal choice.
A juror’s responsibility is no light matter. Jurors must weigh the evidence and bear in mind that a decision to convict could ruin a man or woman’s life, while a decision to acquit could have disastrous consequences for the community. It is sometimes easier for jurors to think of their role as determining “the law” as truth so that they do not have to feel the responsibility of their choice. But when you issue a mixed verdict that puts worldly realities at odds with legal truths, the burden of one’s responsibility is often too much to bear. My fellow jurors turned to the judge because they wanted him to reassure them with the voice of law as truth that they had done good, but also because they wanted to share or dump the responsibility for their choice back on the judge.


Blogger Tobie said...

The primary responsibility of the jury is to decide on questions of fact, not those of law. It is for precisely this reason that the judge instructs the jury- we expect him to be expert in the requirements of the Law and to use this expertise to define for them what they should be looking for in their trial of fact. In determination of fact, there is no reason to assume that a judge is specially competent. Furthermore, because the facts are necessarily in doubt- after all, there are two sides who have argued the matter- there is necessarily a risk of abuse of power and it is for this reason that we have the judge. Finally, determination of fact itself may involve subjective questions: what is negligence, what is recklessness. These "the Law" purposely leaves open to value judgments and those value judgments are supposed to come from the representatives of society as a whole.

So the jury example sort of falls through. As to his point as a whole, Law is necessarily an objectification of a complex system. But no American articles that I've seen canonize the extant law at the expense of suggesting changes to it. Lawyers and judges do have to at least pretend to operate within the law as it is now, but this hardly blocks them from pursuing interpretive paths. I can't think of any example in which The Law is presented as a monolith. I will grant that they view the law as an entity, but I hardly think that's the same thing.

December 11, 2008 12:21 AM  
Blogger e-kvetcher said...


I think what the author was trying to point out does not contradict your points. I think he was saying that people not familiar with the legal system may have misconceptions about the role of the judge vs the jury and that it is sometimes to the advantage of the lawyers in jury trials to advance those misconceptions.

December 11, 2008 8:24 AM  
Blogger Tobie said...

I don't know: he uses the jury system to prove that law is inherently ambiguous when the two facts actually have nothing to do with each other because the jury's verdict has nothing to do with 'the law'. He also ignores the fact that the judge instructs the jury on exactly what they are supposed to be doing, especially in terms of finding on facts, not law, which would serve to pretty effectively dispel the fallacy that he has decided exists..

December 11, 2008 10:34 AM  
Blogger e-kvetcher said...

I think his point is that regardless of the fact that the "jury's verdict has nothing to do with 'the law'", a juror, even if instructed by the judge, may be 'brainwashed' or pre-programmed to think that they have to find the truth.

However, I am not so sure that the line between 'fact' and 'law' is that clear. After all, the deliberation of the jury is to determine whether the defendent is 'guilty' or 'innocent'. This implies a transgression of some law. Otherwise, the verdict seems meaningless.

btw, here is Wimpfheimer's bio.

December 11, 2008 11:04 AM  
Blogger Tobie said...

but the whole point of the judge's instructions is to remove all issues of determination of law from the hands of the jury. The judge tells the jury that if you believe x, then he is guilty- translating law into fact, Thus, all determinations about what the law believes are done by the judge. So when the jury declares somebody guilty, they are supposed to do so only within the framework of the definition of the word 'guilty', in this case, as handed to them by the judge. And the judge tells them this (The exact same differentiation exists with regard to appeals- appeals court will almost never overturn a finding of fact, only a determination on a point of law.)

The jury does have to find the truth- but the actual truth in the sense of what set of facts occurred. This analysis seems to be completely ignoring this differentiation. If his point is nothing more than that some lawyers occasionally manage to subvert the very clear goals which the judge's instructions are specifically designed to achieve, it's a lot less sweeping of a point than he's making it sound. And again, the article doesn't say that lawyers sometimes obfuscate the differentiation- it fails to mention its existence at all, instead making it sounds like that's how the system always works.

December 11, 2008 3:48 PM  
Blogger e-kvetcher said...

I won't argue with a future lawyer :)

December 11, 2008 8:17 PM  
Blogger Tobie said...

Sorry...I tend to law-geek out sometimes, we throws me into something like a battle-frenzy. Only with words. And a lot of hand gestures.

December 11, 2008 11:49 PM  

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