Re: Guest Post - Minivet

1

I consider your biases, and I share them, as matters of practice rather than principle, in other words, whether and to what degree they would come into play or be determinative would depend on the particular evidence and course of the case. Would you always favor justice over the law, and would you always be biased toward the Occupy defendant, irregardless of facts and testimony presented? If not, I don't think there is a problem.

OTOH, you already know, or can guess, how this particular case would go. I myself have a very strong bias toward disbelieving or being skeptical toward police testimony. Since many defendants are guilty of terrible crimes, and since their convictions depend on official testimony or evidence, this for some reason leads me to disqualify myself.

However I would lie or cheat to get on this jury, and unless there were like three Occupy witnesses* supporting the officer's complaint, I would be a vote to acquit before I sat in the box.

*goes to paragraph one. I can imagine voting to convict.


Posted by: bob mcmanus | Link to this comment | 04-13-12 5:17 AM
horizontal rule
2

There could be other evidence. Did the policeman suffer serious injury? Was there a cut or slice on his upper arm that looks like it was made by a metal street sign (stop sign)?

PS:After ten summons in 15 years, including two thirty day Fed Grand Jury, I just blew off my last summons to see what would happen. I was guessing I was getting called disproportionately because I always showed up.

Don't turn me in.


Posted by: bob mcmanus | Link to this comment | 04-13-12 5:26 AM
horizontal rule
3

The third thing I might say is that my attitude is that criminal cases that go to a jury are always very iffy with inadequate evidence or with extreme punishments upon conviction.

Got voir'd on a simple burglary case once. 22 year old kid, would have been his third conviction. Prosecution was seeking life.

I don't need this shit anymore.


Posted by: bob mcmanus | Link to this comment | 04-13-12 5:41 AM
horizontal rule
4

Yeah, the whole "should I lie to get on a jury" thing is fraught. I was discussing this with my lawyer BFF and he was quite clear that he would never under any circumstances lie to a court ("even to save you!"). I spoke about the time I nearly gave myself a stroke when I realized I was sitting in voir dire for a first-degree murder case. Turns out it wasn't a death penalty case, but in the 15 minutes it took for me to learn that, I'd basically decided that I needed to lie and say that I could vote to impose death in order to get on the jury and refuse to. (In the end, I wasn't called at all. You write "University of Chicago" on your juror card and you go home, it turns out.)


Posted by: oudemia | Link to this comment | 04-13-12 5:42 AM
horizontal rule
5

Indeed, no defense attorney wants his defendant to be judged unworthy byone of those bloodthirsty automatons on the Chicago faculty.


Posted by: Cryptic ned | Link to this comment | 04-13-12 5:43 AM
horizontal rule
6


he was quite clear that he would never under any circumstances lie to a court ("even to save you!")

Perhaps it was a ploy to get you to marry him to acquire spousal privilege.


Posted by: knecht ruprecht | Link to this comment | 04-13-12 5:56 AM
horizontal rule
7

I heard a lawyer who was working on death penalty appeals said that juries in death penalty cases seemed to be not only okay with the death penalty but particularly bloodthirsty, because all of the people who were the least bit queasy got disqualified.


Posted by: Bostoniangirl | Link to this comment | 04-13-12 6:05 AM
horizontal rule
8

You write "University of Chicago" on your juror card and you go home, it turns out.

You guys should work out a handshake, like the Masons.


Posted by: Moby Hick | Link to this comment | 04-13-12 6:12 AM
horizontal rule
9

By Their Litttle Bitchery Ye Shall Know Them.


Posted by: JP Stormcrow | Link to this comment | 04-13-12 6:27 AM
horizontal rule
10

In voir dire I said that I supported legalizing marijuana, and I was still put on a jury in a drug case (sale of cocaine - I think it was crack, but I'm not sure now). I imagine the prosecutor decided that as a white male I was still more likely to convict the young black man.

We acquitted.


Posted by: peep | Link to this comment | 04-13-12 6:28 AM
horizontal rule
11

You write "University of Chicago" on your juror card and you go home, it turns out.

What if it's scrawled in crayon in the field that says "Name"?


Posted by: Sifu Tweety | Link to this comment | 04-13-12 6:41 AM
horizontal rule
12

I consider it a rational conclusion, after all, not an emotion or impulse,

I will note unrelatedly that I wish we could banish this picture of what constitutes a rational judgment from naive psychology. Read Damasio people!

//The "New Atheists" are, ironically or not, some of the worst offenders.
//Not Dennett, though.


Posted by: Criminally Bulgur | Link to this comment | 04-13-12 6:42 AM
horizontal rule
13

God I hate nullification proponents. It's a good thing that most jurors (it seems) take their responsibilities and role seriously, act as they are instructed, and, unlike you lot, don't think that it's a good idea to lie so as to secretly get a chance to be an unelected lawmaker. You get to figure out the facts based solely upon the evidence presented at trial. That's it. That's your job, and how the system works. If you can't do that, let the Court know, but you should never be on a jury.


Posted by: Robert Halford | Link to this comment | 04-13-12 6:44 AM
horizontal rule
14

I wish to mildly distance myself from 12.


Posted by: Sifu Tweety | Link to this comment | 04-13-12 6:45 AM
horizontal rule
15

You get to figure out the facts based solely upon the evidence presented at trial.

Not arguing nullification one way or the other (and arguing something perhaps not unrelated to the 12.1 I so recently distanced myself from), but this seems self-evidently impossible.


Posted by: Sifu Tweety | Link to this comment | 04-13-12 6:47 AM
horizontal rule
16

Well, you bring your own background and perspective to resolving the questions of fact. But you shouldn't be looking outside the trial evidence. Eg it's fine to have a background attitude "cops often lie.". It's not fine to conclude that this particular testimony from this particular cop is a lie unless there's evidence at trial that suggests that is the case. And so on.


Posted by: Robert Halford | Link to this comment | 04-13-12 6:50 AM
horizontal rule
17

Also uncool, but now increasingly common: doing Internet research on the facts of a case during deliberations, and relying on that instead of the evidence presented at trial. This is now actually a misdemeanor in California, but jurors still do it.


Posted by: Robert Halford | Link to this comment | 04-13-12 6:52 AM
horizontal rule
18

When I got called for jury duty, I didn't even get to the point of being questioned. That seemed just as well because it sounded like a sad case. Some guy fell and is now a paraplegic and a bunch of corporations were fighting over the percentage to which they were responsible.


Posted by: Moby Hick | Link to this comment | 04-13-12 6:52 AM
horizontal rule
19

One has little desire to sit in judgment of one's fellow man, except for a certain category of offender that ought to be fairly obvious from past commenting (hint: Penn State), on whom I would cheerfully go all Garth Ennis/Steve Dillon-era Punisher: MAX (available on Amazon: I say start with "The Slavers"). Fortunately or not, one's professional education has always gotten one kicked off jury pools rather sooner than later.

12, 14: Rationality is an hubristic delusion, like democracy.


Posted by: Flippanter | Link to this comment | 04-13-12 6:54 AM
horizontal rule
20

I love rational deliberation, but I think an integral part of what you're doing when you deliberate is calibrating your feelings and emotions about some subject matter, not bypassing them. Snap judgments: still not good in Bulgur's world.


Posted by: Criminally Bulgur | Link to this comment | 04-13-12 6:59 AM
horizontal rule
21

I mean for, like, importance stuff.

//I actually said "I love rational deliberation"


Posted by: Criminally Bulgur | Link to this comment | 04-13-12 7:01 AM
horizontal rule
22

Nullification is a huge part of the reason we have a jury system to begin with. I have a problem when judges undermine the peoples' right to nullification by deceptively convincing juries that it isn't one of their options.


Posted by: Spike | Link to this comment | 04-13-12 7:03 AM
horizontal rule
23

20: oh, I agree that the dichotomy between rationality and emotional/impulsive judgments is a false one as a matter of fact, but it seems like a moderately explanatory one in practice. Also I don't really like the term "naive psychology"; "folk psychology" seems friendlier, and anyhow more acccurate.


Posted by: Sifu Tweety | Link to this comment | 04-13-12 7:09 AM
horizontal rule
24

Given the number of Germans involved, I always use "volk psychology."


Posted by: Moby Hick | Link to this comment | 04-13-12 7:10 AM
horizontal rule
25

22: I consider nullificiation like civil disobedience. If you need to have an official tell you it's O.K., you're doing it wrong.


Posted by: Moby Hick | Link to this comment | 04-13-12 7:11 AM
horizontal rule
26

I actually rather like US v. Dougherty as a guide to jury nullification. It would indeed be horrible if people found according to their whim or preference at all forking points. So judges' instructions to and screening of juries constrain nullification to the cases where they feel so strongly that they feel compelled by conscience to disregard authority and their original intentions, and acquit. "What makes for health as an occasional medicine would be disastrous as a daily diet." Probably we do go to far in firewalling against belief in nullification, but the balance is hard to strike.

(Good point on the rational vs. impulse thing. That was written as framed for the courtroom.)


Posted by: Minivet | Link to this comment | 04-13-12 7:11 AM
horizontal rule
27

26 is better than 25 to get at my point.


Posted by: Moby Hick | Link to this comment | 04-13-12 7:12 AM
horizontal rule
28

Of course I ban the writer of that passage and myself for quoting it.


Posted by: Minivet | Link to this comment | 04-13-12 7:17 AM
horizontal rule
29

AGGGGH. I have too much work to do to get sucked into this topic. 22 is wrong. Nullification is not "one of your options"; it is disregarding the law, which is a risk the system takes, but one it should work to prevent. I'm just going to outsource to a block quote of Judge Cabranes on this issue, who gets it 100% right:

But as the quotation from the Supreme Court's opinion in Standefer indicates, in language originally employed by Judge Learned Hand, the power of juries to "nullify" or exercise a power of lenity is just that-a power;  it is by no means a right or something that a judge should encourage or permit if it is within his authority to prevent.   It is true that nullification has a long history in the Anglo-American legal system, see Dougherty, 473 F.2d at 1130-33,  and that the federal courts have long noted the de facto power of a jury to render general verdicts "in the teeth of both law and facts," Horning v. District of Columbia, 254 U.S. 135, 138, 41 S.Ct. 53, 54, 65 L.Ed. 185 (1920);  see, e.g., United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir.1983). However, at least since the Supreme Court's decision in Sparf v. United States, 156 U.S. 51, 102 (1895) (holding that, while juries are finders of fact, "it is the duty of juries in criminal cases to take the law from the court and apply that law to the facts as they find them"), courts have consistently recognized that jurors have no right to nullify. See Gordan, supra, at 272, 277 (noting that, with Sparf, the Supreme Court "fixed the law where Lord Mansfield had left it" in King v. Shipley ("The Dean of St. Asaph's Case"), 4 Doug. 73 (K.B. 1784), in which Mansfield had written that jurors have the power, but not the right, to decide the law);  Howe, supra, at 589 (referring to Sparf as "the Supreme Court's final and authoritative denial of the [jury's] right" to serve as judges of the law);  see, e.g., United States v. Kerley, 838 F.2d 932, 938 (7th Cir.1988) ("[J]ury nullification is just a power, not also a right ․").  As a panel of the Court of Appeals for the District of Columbia Circuit-composed of Chief Judge Spottswood W. Robinson, III, Judge George E. MacKinnon, and then-Judge Ruth Bader Ginsburg-explained:

A jury has no more "right" to find a "guilty" defendant "not guilty" than it has to find a "not guilty" defendant guilty, and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law.   Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C.Cir.1983) (per curiam) (emphasis in original).   Indeed, as we noted above, the exercise of this de facto power is a violation of a juror's sworn duty to "apply the law as interpreted by the court."   United States v. Boardman, 419 F.2d 110, 116 (1st Cir.1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1124, 25 L.Ed.2d 398 (1970).9

Moreover, although the early history of our country includes the occasional Zenger trial or acquittals in fugitive slave cases, more recent history presents numerous and notorious examples of jurors nullifying-cases that reveal the destructive potential of a practice Professor Randall Kennedy of the Harvard Law School has rightly termed a "sabotage of justice."   Randall Kennedy, The Angry Juror, wall St. J., Sept. 30, 1994, at A12.   Consider, for example, the two hung juries in the 1964 trials of Byron De La Beckwith in Mississippi for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old Emmett Till, see david Halberstam, the Fifties 431-41 (1993);  randall Kennedy, Race, Crime and the Law 60-63, 250 (1997);  juan Williams, Eyes on the Prize:  America's Civil Rights Years, 1954-1965, at 38-57, 221-25 (1987)-shameful examples of how nullification has been used to sanction murder and lynching.

 Inasmuch as no juror has a right to engage in nullification-and, on the contrary, it is a violation of a juror's sworn duty to follow the law as instructed by the court-trial courts have the duty to forestall or prevent such conduct, whether by firm instruction or admonition or, where it does not interfere with guaranteed rights or the need to protect the secrecy of jury deliberations, see infra Section II.C, by dismissal of an offending juror from the venire or the jury.   If it is true that the jury's "prerogative of lenity," Dougherty, 473 F.2d at 1133, introduces "a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions," Adams, 126 F.2d at 776, then, as part and parcel of the system of checks and balances embedded in the very structure of the American criminal trial, there is a countervailing duty and authority of the judge to assure that jurors follow the law.   Although nullification may sometimes succeed-because, among other things, it does not come to the attention of a presiding judge before the completion of a jury's work, and jurors are not answerable for nullification after the verdict has been reached-it would be a dereliction of duty for a judge to remain indifferent to reports that a juror is intent on violating his oath.   This is true regardless of the juror's motivation for "nullification," including race, ethnicity or similar considerations.   A federal judge, whose own oath of office requires the judge to "faithfully and impartially discharge and perform all the duties incumbent upon [the judge] ․ under the Constitution and laws of the United States," 28 U.S.C. § 453 (1994), may not ignore colorable claims that a juror is acting on the basis of such improper considerations.


Posted by: Robert Halford | Link to this comment | 04-13-12 7:17 AM
horizontal rule
30

19: I knew a law professor who got called. He'd actually written significant portions of California's Code of Civil Procedure. The judge had been a student of his and told someone I knew that he was somewhat scared of getting something wrong.


Posted by: Bostoniangirl | Link to this comment | 04-13-12 7:21 AM
horizontal rule
31

23: I have no point to make or anything, but this reminds me of "In theory, there's no difference between theory and practice, but in practice there is."


Posted by: One of Many | Link to this comment | 04-13-12 7:25 AM
horizontal rule
32

nullification has been used to sanction murder and lynching
This confuses me.


Posted by: Eggplant | Link to this comment | 04-13-12 7:25 AM
horizontal rule
33

In any case, I'd be willing to bet the legal system has been used far more often to santion murder and lynching.


Posted by: Eggplant | Link to this comment | 04-13-12 7:27 AM
horizontal rule
34

32: If you think that lynching is a fine thing for your fellow klansmen to do, you can refuse to convict people for it.


Posted by: Moby Hick | Link to this comment | 04-13-12 7:28 AM
horizontal rule
35

It's my right to spell as I see fit.


Posted by: Eggplant | Link to this comment | 04-13-12 7:28 AM
horizontal rule
36

Nullification is not "one of your options"; it is disregarding the law

Yes, but I disregard laws all the damn time. I'll bet you do as well.


Posted by: apostropher | Link to this comment | 04-13-12 7:30 AM
horizontal rule
37

@29

I think this comes down to "sometimes civil disobedience is necessary". That doesn't mean anyone has "right" to break the law. But sometimes they do anyway and sometimes they're right to do it.


Posted by: AcademicLurker | Link to this comment | 04-13-12 7:33 AM
horizontal rule
38

16: It's not fine to conclude that this particular testimony from this particular cop is a lie unless there's evidence at trial that suggests that is the case.

I don't understand this. If I'm listening to accounts of individual people (i.e. not the findings of the crime lab, which presumably could be reproduced by a different lab) then the one thing I MUST do is try to determine their veracity independent of other information. Especially in cases where there is a strong incentive for someone to lie on the stand (to protect fellow officers, for instance), I have to look at not only the credibility of the testimony itself (e.g. whether it would be possible to identify someone based on a half-second glance of a figure 50 yards away) but also on the basis of whether the person offering the testimony seems trustworthy. Surely that's the very core of the justification for jury trials in the first place?


Posted by: Natilo Paennim | Link to this comment | 04-13-12 7:37 AM
horizontal rule
39

To Heebie's take: I've never been called, but that would be my approach. If I thought I had a really clear bias* - one that to deny would be tantamount to perjuring myself - I'd speak up, but I'm not going to volunteer e.g. that I presume that cops are willing to lie/shade the truth on the stand.

* like the defendant is a general contractor, or a Republican


Posted by: JRoth | Link to this comment | 04-13-12 7:38 AM
horizontal rule
40

29 illustrates how legal system has done an excellent job of codifying why it should be the one to have the final say. But, ultimately, those decisions are the decisions of judges, and need to be taken with a grain of salt, given that the whole point of jury nullification is to provide a check on the judicial monopoly of legal power.



Posted by: Spike | Link to this comment | 04-13-12 7:40 AM
horizontal rule
41

Also, judges nullify laws all the time, and call it "judicial review." If judges can do that, why can't juries?


Posted by: Spike | Link to this comment | 04-13-12 7:42 AM
horizontal rule
42

38 -- sure, you get to assess the credibility of the person sitting in front of you, based upon his testimony at trial (including any cross examination designed to undermine that testimony). You can consider the witness's bias and motivation to lie. I'm hoping all of that was clear.

What you don't get to do is to say "all cops are liars" based not on what's happened at trial, but on your past experience, and therefore reject the cop's testimony without considering what is actually introduced as evidence at trial.


Posted by: Robert Halford | Link to this comment | 04-13-12 7:42 AM
horizontal rule
43

Why not? That's not a legal question, right? It's one about facts. And I think there's a legit argument that if that's the way a jury member feels, then the jury member ought act on that belief.


Posted by: Keir | Link to this comment | 04-13-12 7:43 AM
horizontal rule
44

38: Yes, the judge specifically said the jury would be allowed to consider that the police witnesses might be lying to protect their own, just as friends of the defendant might be lying to protect him. Common-sense.


Posted by: Minivet | Link to this comment | 04-13-12 7:44 AM
horizontal rule
45

I think this comes down to "sometimes civil disobedience is necessary".

Sure. But let's recognize it for what it is. Also, civil disobedience generally works when it's explicit and publicized; a secret jury "nullification" is worthless.


Posted by: Robert Halford | Link to this comment | 04-13-12 7:44 AM
horizontal rule
46

I have to look at not only the credibility of the testimony itself (e.g. whether it would be possible to identify someone based on a half-second glance of a figure 50 yards away)

CA was on the jury for a trial where a cop testified that he could identify not type of gun, but actual particular one and only specific 9mm from some entirely absurd distance. There was various other bits of evidence that made it pretty likely the guy had done it, but probably not "beyond a reasonable doubt" -- because the cops were obvious liars. Hung jury.


Posted by: oudemia | Link to this comment | 04-13-12 7:45 AM
horizontal rule
47

41: Juries can't set a legal precedent, for one thing.


Posted by: Moby Hick | Link to this comment | 04-13-12 7:45 AM
horizontal rule
48

a secret jury "nullification" is worthless

Not to the defendant.


Posted by: apostropher | Link to this comment | 04-13-12 7:46 AM
horizontal rule
49

But most judges can't either, really.


Posted by: Keir | Link to this comment | 04-13-12 7:47 AM
horizontal rule
50

Eg it's fine to have a background attitude "cops often lie.". It's not fine to conclude that this particular testimony from this particular cop is a lie unless there's evidence at trial that suggests that is the case. And so on.

I'm not sure I meaningfully disagree with Halford on this, but I think he's drawing an artificially bright line. Yes, one shouldn't simply assume that the truth is the opposite of whatever the cop testifies to, but there's a lot of gray area between that and "every word of testimony is presumptively 100% true unless there's testimonial counterevidence."

Point simply being, void dire is predicated on people being upfront with their biases, but in practice certain biases are more acceptable than others, and I don't have a problem with staying silent about mine, because the businessman sitting next to me isn't going to find his biases disqualifying*.

* yes, I know the defense gets to throw out jurors, too, but if they tried to throw out every citizen who blindly takes cops at their word, there'd never be any juries.


Posted by: JRoth | Link to this comment | 04-13-12 7:47 AM
horizontal rule
51

The kinds of considerations in 46.2 are totally fine and exactly the kind of thing juries should be thinking about.


Posted by: Robert Halford | Link to this comment | 04-13-12 7:48 AM
horizontal rule
52

Well okay then.

Of course, if it was up to me, I would nullify the whole damned system, but that day has not yet arrived. However, given some of the most recent miscarriages of justice, I wouldn't be surprised if it was inching ever closer all the time. Since the passage of the Antiterrorism and Effective Death Penalty Act and the various mandatory minimum laws, what little claim the courts might have had to legitimacy (i.e. what is referred to above in terms of their power to rectify the incorrect judgment of a jury has faded into nonexistence. We live in a lawless epoch where not only justice, but even the hope of mercy, is available only to the wealthiest among us. An "age when man was wolf to man" indeed.


Posted by: Natilo Paennim | Link to this comment | 04-13-12 7:48 AM
horizontal rule
53

a secret jury "nullification" is worthless

And not in my hypothetical "sentence nullification" either. Dude gets his case tried on its merits, but if found guilty, goes to prison for life, because someone has decided not to help the state kill him. Also, it is bullshit that they get to pick juries based on who's into the death penalty.


Posted by: oudemia | Link to this comment | 04-13-12 7:49 AM
horizontal rule
54

17: I totally agree that that's uncool. I have my doubts about the System, but the jury is part of that System.


Posted by: JRoth | Link to this comment | 04-13-12 7:49 AM
horizontal rule
55

"every word of testimony is presumptively 100% true unless there's testimonial counterevidence."

Not at all what I'm saying. You can consider bias and motive as part of whether or not to believe a witnesses' testimony.


Posted by: Robert Halford | Link to this comment | 04-13-12 7:49 AM
horizontal rule
56

Nullification is a huge part of the reason we have a jury system to begin with. I have a problem when judges undermine the peoples' right to nullification by deceptively convincing juries that it isn't one of their options.

Exactly. Why would we have juries instead of judges, if the job of the jury is to objectively enforce the letter of the law, no matter how counterintuitive or unfair? One would imagine that that job should go to people who have been trained in the law.


Posted by: Cryptic ned | Link to this comment | 04-13-12 7:50 AM
horizontal rule
57

I assume you should just believe the witnesses of whichever lawyer shows the most cleavage.


Posted by: Moby Hick | Link to this comment | 04-13-12 7:50 AM
horizontal rule
58

Would anyone argue that nullification has at any point spurred political change? I suspect not - in the case of the Fugitive Slave Act, f.e., it was symptomatic of a lot of other civil disobedience, like harassing enforcers. Halford's point about secrecy is well taken.

Actually I'm not sure we really get a lot out of having a jury system here in the Anglosphere. Are there good studies on the subject?


Posted by: Minivet | Link to this comment | 04-13-12 7:52 AM
horizontal rule
59

56: Juries are to interpret facts.


Posted by: Moby Hick | Link to this comment | 04-13-12 7:52 AM
horizontal rule
60

I wouldn't lie to get on a jury, but I'd get pretty aggressively equivocal about things like the death penalty (I'm not actually committed to opposing it in theory, just in practice in our society. I figure I could make an honest statement of my beliefs that would death-qualify me, and so on.) or the baseline credibility of the police (just like any other witness, police witnesses are going to be telling the truth sometimes and lying sometimes. I can honestly state my beliefs in that regard without getting into whether I would weight the testimony of a police officer more or less heavily than that of a civilian witness, for example.)


Posted by: LizardBreath | Link to this comment | 04-13-12 7:54 AM
horizontal rule
61

55: right, I see that now; the thread was moving really fast. I just wanted it explicit.


Posted by: JRoth | Link to this comment | 04-13-12 7:57 AM
horizontal rule
62

It's not obvious that most public acts of civil disobedience work nowadays.


Posted by: Eggplant | Link to this comment | 04-13-12 7:58 AM
horizontal rule
63

60 speaks for me.


Posted by: JRoth | Link to this comment | 04-13-12 7:58 AM
horizontal rule
64

59: Except for those "mixed questions of law and fact" which basically amount to a jury getting to set a legal standard for what constitutes a particular cause of action, e.g., some sort of negligence.


Posted by: Bostoniangirl | Link to this comment | 04-13-12 8:03 AM
horizontal rule
65

If you're comparing jury nullification to civil disobedience, then one single jury nullifier is a lot more effective than one lone protester with a sign on the street.


Posted by: Cyrus | Link to this comment | 04-13-12 8:06 AM
horizontal rule
66

I'm pretty sure I'd get booted from any death penalty jury.


Posted by: Spike | Link to this comment | 04-13-12 8:07 AM
horizontal rule
67

I wouldn't lie to get on a jury, but would nullify in certain situations. Most obviously on federal marijuana charges that overstep local law. I wonder how they ask about that at voir dire given that they know no jury of Californians would convict the owner of a normal medicinal marijuana store. They have to keep the facts secret from jurors, so they probably don't want to bring medicinal marijuana up at all.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 04-13-12 8:12 AM
horizontal rule
68

Although, arguably, perjuring oneself to get on a jury to prevent the state from killing a man is a lesser evil than refusing to do so. If, by perjuring yourself, you could save a life, is not perjuring yourself the right thing to do?


Posted by: Spike | Link to this comment | 04-13-12 8:13 AM
horizontal rule
69

68: I don't think you can consider that in isolation. Among other things, you are also potentially making it less likely that people like yourself will be on a jury, possibly convincing the family of a murder victim that they are justified to go vigilante, and generally undermining a justice system. Probably the first one is the most likely countereffect.


Posted by: Moby Hick | Link to this comment | 04-13-12 8:30 AM
horizontal rule
70

In addition to internet research, you can't do other independent research. For example, you can't do a simple physics experiment on your own.

The anti-science and anti-mathematical bent of the legal system is kind of infuriating. (Though I suppose unsurprising given that the legal system predates modern science, and that most jurors are can't understand the issues.) The competing expert witness system is insane and anti-scientific. The fact that you can't read any actual science on the matter is annoying. And the inability to wrestle with issues of probability makes significant parts of the law incomprehensible. So something is negligent if it's not what a reasonable person would or wouldn't do. But reasonable people aren't perfect, any person no matter how reasonable will have a bell curve of behavior. Is it's something a reasonable person would do less than 10% of the time? Less than 1% of the time?

In particular, I found in the case I was a juror on that it was totally infuriating that there was no way for me to know the typical rates of overflows in toilets (preferably broken down by type of toilet). How the hell am I supposed to decide if it was negligent for someone to not have replaced their toilets with different toilets when I have no data on what's normal for toilets?


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-13-12 8:42 AM
horizontal rule
71

...I have no data on what's normal for toilets?

Pastels on the wall, not in the bowl.


Posted by: Moby Hick | Link to this comment | 04-13-12 8:46 AM
horizontal rule
72

How the hell am I supposed to decide... when I have no data

This one's actually easy -- you're supposed to check which side has the burden of proof on that issue, and if you don't have enough data to decide, the side with the burden loses on that issue. It's unsatisfying because you get interested and you want to know, but there's a clear right answer for what a juror should do.


Posted by: LizardBreath | Link to this comment | 04-13-12 8:46 AM
horizontal rule
73

69
you are also potentially making it less likely that people like yourself will be on a jury,

What's the point of people skeptical of authority getting on a jury if they don't vote like people skeptical of authority would be inclined to vote? There's always the thought that an even more important or marginal case could come along and the people inclined to skepticism would be needed on that one even more, but given that we're already talking about a death penalty case, this seems to be a good time to cash in that philosophical-social capital.

possibly convincing the family of a murder victim that they are justified to go vigilante,

Considering how unlikely that is to start with and how indirect your influence is on it (going from "some jury somewhere nullified something" to "vigilante murder" is several logical leaps), this shouldn't weigh too heavily.

and generally undermining a justice system.

Boo fricking hoo.


Posted by: Cyrus | Link to this comment | 04-13-12 8:47 AM
horizontal rule
74

"some jury somewhere nullified something" to "vigilante murder" is several logical leaps

There's a thing in the news that keeps this on my mind.


Posted by: Moby Hick | Link to this comment | 04-13-12 8:49 AM
horizontal rule
75

It is, at least to my mind, worth remembering that things can get worse justice-wise and that making things worse is far easier than making them better.


Posted by: Moby Hick | Link to this comment | 04-13-12 8:51 AM
horizontal rule
76

Florida, Florida
The whole day through
Just a chyron song
Keeps Florida on my mind


Posted by: JP Stormcrow | Link to this comment | 04-13-12 8:53 AM
horizontal rule
77

75: Pooping in court for instance.


Posted by: JP Stormcrow | Link to this comment | 04-13-12 8:54 AM
horizontal rule
78

Wait, that's bad? Oh I am in trouble.


Posted by: Sifu Tweety | Link to this comment | 04-13-12 8:55 AM
horizontal rule
79

Halford @13:

You get to figure out the facts based solely upon the evidence presented at trial.

But one can't. The evidence presented at trial is so filtered and censored that it's impossible to figure anything out from it without "speculating" which you're told not to do.

secretly get a chance to be an unelected lawmaker.

Why not. Jury duty is one of the last cases of involuntary servitude left. The pay for it is derisory, the attitude of the court towards jurors is at best condescending. The sole psychic reward is the feeling that one has done justice, as far as in one lies.


Posted by: jim | Link to this comment | 04-13-12 8:57 AM
horizontal rule
80

So it seems like we can conclude a couple of things: one, jury nullification can be important and useful as long as, two, you don't tell Halford or southern racists about it.

Comity!


Posted by: Sifu Tweety | Link to this comment | 04-13-12 9:01 AM
horizontal rule
81

78: I knew I was stepping on your turdf with that one.


Posted by: JP Stormcrow | Link to this comment | 04-13-12 9:03 AM
horizontal rule
82

72: Although that's roughly what I did, it's a somewhat unsatisfying answer because the burden of proof in CA civil cases (as it was explained to us) is very low. We were given some evidence (e.g. it had overflowed at least n times in the last m months, and at least one of those incidents involved a bell pepper), but just no idea how far from the norm that was, nor how much can be changed by switching to different kinds of toilets.


Posted by: Unfoggetarian: "Pause endlessly, then go in" (9) | Link to this comment | 04-13-12 9:03 AM
horizontal rule
83

The evidence presented at trial is so filtered and censored...

It is worth remembering that a fair amount of the censoring has to do with protecting people from unreasonable searches.


Posted by: Moby Hick | Link to this comment | 04-13-12 9:03 AM
horizontal rule
84

and at least one of those incidents involved a bell pepper

If you must flush a pepper, you should flush a banana pepper.


Posted by: Moby Hick | Link to this comment | 04-13-12 9:05 AM
horizontal rule
85

I was on a jury once in a civil case - a lawyer was suing a former client for an unpaid fee, and the client countersued that the lawyer hadn't provided the promised services. Neither side covered themselves in glory on the facts or in courtroom presentation.

We ended up splitting the difference - finding for the plaintiff but awarding only half the amount in controversy. I was impressed at how thoroughly the jury as a whole went over the evidence when deliberating. No one person on the jury remembered everything relevant, but individual jurors filled in key facts and impressions very well. The trial took a day and after the verdict, the judge told us in every case he had seen like this, the jury split the difference (he had tried to get the parties to settle, but to no avail).


Posted by: bill | Link to this comment | 04-13-12 9:10 AM
horizontal rule
86

http://umt.edu/law

This morning's Montana Supreme Court argument on same sex marriage is live streamed. We're near the end of the proponents' arguments, but the guy is excellent.


Posted by: CharleyCarp | Link to this comment | 04-13-12 9:29 AM
horizontal rule
87

83:

Some evidence is inadmissable out of 4th Amendment concerns, some out of 5th amendment concerns, some because the judge thinks the jury will be more influenced by it than the judge thinks they ought to be (it'll "prejudice them"). Some evidence, though admissable, isn't presented because neither side thinks it'll help them.

The result is a random assortment of "facts" that the jury tries to make sense of (without, of course, speculating about what it hasn't been told).

Looking at Halford's and LB's comments, it seems to me that lawyers and judges while they're playing their elaborate game have no inkling of how frustrating it is to the jury. They approach the bench to whisper to each other so that the jury doesn't hear, or worse, the jury is sent out (at gunpoint, remember, this is all forced labor, enforced by court attendants who are packing heat) to sit in the jury room while their betters wrangle and argue over what they can be told. We know that there are things kept from us and we are handed a mishmash to try to resolve.


Posted by: jim | Link to this comment | 04-13-12 9:35 AM
horizontal rule
88

I think lawyers and judges know how frustrating it is. They just don't care. My dad says he knew a judge who used to call a conference in chambers with the attorneys every hour or so. The reason was so they could all smoke, but he'd never say "smoke break" or anything like that.


Posted by: Moby Hick | Link to this comment | 04-13-12 9:39 AM
horizontal rule
89

85.2 is the kind of thing you usually hear about juries -- people take the job seriously, look at things thoroughly, etc.


Posted by: Robert Halford | Link to this comment | 04-13-12 9:44 AM
horizontal rule
90

I do get the frustration, but the entire system rests on the trial being based on a limited universe of evidence and argument. You don't and shouldn't and can't know as a juror why something has or hasn't been mentioned; there's a ton of law and preparation based on narrowing the universe of trial to what's presented at trial, and it's deeply unfair to all parties to have things considered by the jurors that neither side can explain or address.

With that said, there's a difference between a limited universe of evidence and constantly interrupting the trial. The best trial lawyers I know move quickly, object as little as possible and do everything in their power to keep sidebars to a minimum.

I have a longer response to UPETGI (short response: you cone up with a better system), but fuck it, back to work.


Posted by: Robert Halford | Link to this comment | 04-13-12 9:51 AM
horizontal rule
91

I agree with Halford, to no one's surprise. Every limitation of the universe has a distinct rationale, and represents a choice made by society in the interest of fairness. You might want to know if that rape victim is a slut (and believe me, if you don't a couple of other people on the panel do): guess what, we're not going to let them tell you that. (And I think the universe is not limited enough in some respects on such cases).

Argument concluded in the MSC case. I thought it was well done on both sides, and there's thankfully a lot less of the meaningless showboating you get from the USSC.


Posted by: CharleyCarp | Link to this comment | 04-13-12 10:19 AM
horizontal rule
92

And I certainly agree with LB's response to UPET: you supposed to decide which version is more likely than not. The instructions tell you what to do if neither side convinces you that one outcome is likelier than the other. You promised to follow the instructions: do that.


Posted by: CharleyCarp | Link to this comment | 04-13-12 10:22 AM
horizontal rule
93

Details, details. I stop at redlights, and will work with and within the system in most cases. i reserve the right, the legal right, to declare the state of exception, all by my lonesome, and face the devil with all the trees cut down.

I don't even recognize jury nullification as civil disobedience. I am not the loyal fucking subject of my leige Lord Halford.

The people are sovereign to the fucking law, and the individual is sovereign to "the people."

And should the enacted Constitution enshrine it, the duly and fairly elected representatives ratify it, and the ossifers of the court execute it, I still believe I have not only the right but the duty under the law, when asked "Shall this man lose his head for insulting the Emperor?" to say "No. That is illegal."

The Kantian imperative should not be understood as a matter of taste or judgement, but the obligation that at times, each person must view herself under the category of responsible legislator and make universal law.

It cannot be delegated.


Posted by: bob mcmanus | Link to this comment | 04-13-12 10:23 AM
horizontal rule
94

The incomprehensibility of the sovereign individual conscience is the crime of hierarchy, patriarchy, oligarchy, the authoritarian mindset of eons of oppression and submission.

Anti-authoritarianism means exactly this:My conscience is sovereign and I decide what is law.

What else could it mean?


Posted by: bob mcmanus | Link to this comment | 04-13-12 10:38 AM
horizontal rule
95

Re: death penalty cases, I know that sometimes juries get to decide separately on conviction and a death sentence. How common is that?


Posted by: Sir Kraab | Link to this comment | 04-13-12 10:49 AM
horizontal rule
96

Somewhat related, in judge trials, police get all kinds of benefit of the doubt. I have heard heard judges refer to police officers in a form that makes it clear that the officer is part of the judge's team: "my officer has not reason to lie."

Pretty outrageous stuff sometimes.

In an ideal world, the officer's testimony gets the same weight as a non-officer.


Posted by: will | Link to this comment | 04-13-12 10:50 AM
horizontal rule
97

It's the case in California - the judge discussed it tangentially to the "you don't consider the penalty in reaching the verdict" point.


Posted by: Minivet | Link to this comment | 04-13-12 10:50 AM
horizontal rule
98

97 to 95.


Posted by: Minivet | Link to this comment | 04-13-12 10:51 AM
horizontal rule
99

In virginia, the jury recommends, but the judge sentences. In practice, the judges follow the jury's recommendation.

This is a huge problem.

If you choose a judge trial, the judge goes by the sentencing guidelines. In certain kinds of cases, this means significantly less time.

So, defendants are forced to choose: almost certain finding of guilt, but significantly less time. Or a chance for a not-guilty, but significantly more time if found guilty.


Posted by: will | Link to this comment | 04-13-12 10:52 AM
horizontal rule
100

My conscience is sovereign and I decide what is law.

That's pretty much what toddlers think.


Posted by: Moby Hick | Link to this comment | 04-13-12 10:53 AM
horizontal rule
101

And no, not just law for myself. For all.

The "categorical" part of the CI is about compulsion because of form. We are compelled to obey our sovereign conscience when we have used practical reason to determine a rule that is universal, just and fair for anyone "in our shoes" (at this time, blah, blah).

The CI makes LAW.

Gee, did Nietzsche run with this one.


Posted by: bob mcmanus | Link to this comment | 04-13-12 10:54 AM
horizontal rule
102

What is Law?

"Always that which is decreed by an legitimate authority external to ourselves?"

God is dead.


Posted by: bob mcmanus | Link to this comment | 04-13-12 11:15 AM
horizontal rule
103

100: Toddlers and me too, after much deliberation. The culture/society/state has power, I don't see it having any higher wisdom.


Posted by: Biohazard | Link to this comment | 04-13-12 11:57 AM
horizontal rule
104

Most people aren't very deliberative.


Posted by: Moby Hick | Link to this comment | 04-13-12 11:58 AM
horizontal rule
105

In an ideal world, the officer's testimony gets the same weight as a non-officer.

Shouldn't people expect more from the police force though? Ideal world and all so let's hand wave away the large amounts of douchery in the profession at the moment. I think part of the point of having a professionally trained govt. force with all the background checks, training, etc. is having these people be more reliable than your random person on the street.


Posted by: gswift | Link to this comment | 04-13-12 11:59 AM
horizontal rule
106

105 is right in an actually perfect world (though the police would be bored with there being no crime). However, it's hard for me to imagine a world where polic training actually made people more trustworthy. Any joint training is going to result in building ingroup loyalty. Certainly his time at police academy made my brother's opinions on what's ok for cops to do worse, not better.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 04-13-12 12:04 PM
horizontal rule
107

Steve Guttenberg can be a corrupting influence.


Posted by: Moby Hick | Link to this comment | 04-13-12 12:08 PM
horizontal rule
108

105: No, I think ideally the starting point would be no difference. Even an extremely professional, lawful police force has normal institutional interests in maintaining its own reputation, and members have interests in covering up mistakes for their own careers. I'd say that's similar potential bias to defendants' and their friends'.


Posted by: Minivet | Link to this comment | 04-13-12 12:14 PM
horizontal rule
109

105: The problem is that the cop inherently has more of a reason to lie than the civilian witness. The civilian witness doesn't have any systematic interest in the outcome (any given civilian witness might one way or the other, but not in general). The cop is (and this isn't a fault, just how the system works) on the side of the prosecution: they want a conviction.

They can be, and I'd expect are, systematically more professional and reliable than Joe or Jane Random, but they're also systematically interested in getting the conviction, once the case has gotten that far.


Posted by: LizardBreath | Link to this comment | 04-13-12 12:16 PM
horizontal rule
110

To put it another way, if there's a real weakness in the evidence for a case, a cop has to be actively honest, against his vocational interest, to tell the truth if that would reveal the weakness. The cop is probably in the abstract a more reliable person than the average citizen, but the cop is under different pressures.


Posted by: LizardBreath | Link to this comment | 04-13-12 12:33 PM
horizontal rule
111

related: When a lawyer is about to appear before a jury, is it ethical to make one's facebook site public, list status as married, and post photos of lawyer's incredibly cute spouse, pets and children? Does your answer change if the pictures are not, in fact, the lawyer's spouse/pets/children, who do not exist?

also: If your client is accused of some horrible crime, and will not be testifying, would it be ethical NOT to advise him to maintain, or if necessary create, a public facebook site with such pets/spouse/children, and perhaps a home in the nicer part of town?


Posted by: unimaginative | Link to this comment | 04-13-12 1:27 PM
horizontal rule
112

I'm having trouble parsing 111.1. Is the lawyer the same person who would be contemplating putting up such a profile? With the goal of making them seem a heteronormatively decent, upstanding citizen to googling jurors?


Posted by: Minivet | Link to this comment | 04-13-12 2:44 PM
horizontal rule
113

101: And no, not just law for myself. For all.

How many divisions has mcmanus?


Posted by: Hamilton-Lovecraft | Link to this comment | 04-13-12 2:46 PM
horizontal rule
114

Yes, it's the lawyer who is considering whether to make an impression on the jury.


Posted by: Unimaginative | Link to this comment | 04-13-12 3:37 PM
horizontal rule
115

113:Ah, now let him enforce it, ey?

Persuasion is 9/10ths of the law.

1) Spent a while this afternoon re-reading Existentialism and Nietzsche, trying to come up with an egalitarian Nietzscheanism, a society of agonistic self-creators or something. Leiter says Nietzsche had no politics, but he doesn't really need it. Jesus or Buddha had little politics either.


Posted by: bob mcmanus | Link to this comment | 04-13-12 3:51 PM
horizontal rule
116

I actually wrote a screed, including phrases like "Mouth of Sauron" and "Zarathustra's ass" but shelved it. Upon request.

In other trolling, Dekalog 9 was kinda a mess, but Dekalog 8 fucking astonished me. 8 was a masterpiece.

I swear to God, there is a dialogue between the Ethicist and a circus contortionist. "Try bending over backwards, umm okay, too old, you have lost your flexibility."


Posted by: bob mcmanus | Link to this comment | 04-13-12 4:14 PM
horizontal rule
117

For those interested, I believe this is the relevant thread in TFA where we last discussed this issue. It's long, but you can just skip everything except my comments, since those get it exactly right.


Posted by: x.trapnel | Link to this comment | 04-13-12 4:53 PM
horizontal rule
118

Hey, Sifu: "Friendship IS Magic: An afternoon with the Boston Bronies."


Posted by: x.trapnel | Link to this comment | 04-13-12 5:02 PM
horizontal rule
119

I was called for a trial where the defendant was accused of possession of cocaine with intent to sell (but not of selling) and an air rifle. All I could think was that my father and his Tea Party buddies are packing more heat in church. There's no way this guy wouldn't just take the deal unless he was up against some kind of three strikes rule or losing public housing or some other consequence that I might consider unreasonable. However I'm sure that they wouldn't tell me. How could I in good conscience convict the guy knowing that the punishment might be way out of proportion to the crime?

I didn't get a chance to discuss that, though. I had to start off by explaining the hell that my family has been put through after a false allegation made by my daughter, and I admitted that my parents and I ran out of money for attorneys' fees before we were able to finish the trial. So that makes me unfit.

I think that if a randomly selected jury of your peers includes people who have been falsely accused, as well as people who are skeptical of police testimony because of personal experience, then you should be entitled to have them hear your case. It's not fair to the defendant to exclude them, and it's not fair to treat me as if I am permanently defective just because I've been through it.


Posted by: Shamhat | Link to this comment | 04-13-12 6:22 PM
horizontal rule
120

Every limitation of the universe has a
distinct rationale, and represents a choice
made by society in the interest of fairness.

This is an extremely optimistic view of legal history. Do you really believe this for most aspects of the social order, or are you relying on a common law working itself pure implicit model here?


Posted by: Trapnel | Link to this comment | 04-13-12 8:57 PM
horizontal rule
121

I think the rules of evidence are pretty rational. You can certainly see the point of each of them, and why choices about the drawn lines were made.

I'm not particularly pleased with the way the Fourth Amendment has been interpreted in the last couple of decades. But the rules themselves seem to me to be pretty good. You have a problem with Daubert? Would you eliminate some of the exceptions to the hearsay rule? Or get rid of the rule altogether, and let jurors, with their keen sense of social justice, give such evidence the weight it deserves?


Posted by: CharleyCarp | Link to this comment | 04-13-12 11:20 PM
horizontal rule
122

So are you judging the rules of evidence substantively, in that you evaluate the rule, and then say, ok: "that's a good rule, the jurors should blindly follow that"? Or are you judging the rules of evidence based on the process that arrived at them? And what do you think is the reasonable procedure for a juror who comes at this with no background, but knows only that--as Bob eloquently puts it (seriously!)--they have an inescapable existential duty and right to do what they ought?

Genuinely curious--my half-assed view of things, from a 2nd-hand sense of Lau/dan among others, is that the evidentiary rules are actually not that great in terms of objectively correcting for cognitive biases; which is not very surprising, because they are the result, not of the disinterested truth by impartial observers, but of powerful actors pursuing what they value and embedding it within the social order as norms.


Posted by: x.trapnel | Link to this comment | 04-14-12 4:07 AM
horizontal rule
123

gah -- "not of the disinterested pursuit of truth by impartial observers" &c.


Posted by: x.trapnel | Link to this comment | 04-14-12 4:08 AM
horizontal rule
124

Zarathustra's ass is the name of my new banddonkey.


Posted by: Turgid Jacobian | Link to this comment | 04-14-12 6:00 AM
horizontal rule
125

You have a problem with Daubert?

I do. I don't have a solution, and I'm not sure exactly what the problem is, but something's very wrong with how expert evidence gets before a finder of fact.


Posted by: LizardBreath | Link to this comment | 04-14-12 6:04 AM
horizontal rule
126

125

Kind of hard to respond to this. Do you have examples of expert evidence wrongfully admitted or excluded?

I think there is an obvious problem with professional experts (who make a substantial portion of their income by being paid to testify) but that is a somewhat different issue.


Posted by: James B. Shearer | Link to this comment | 04-14-12 6:40 AM
horizontal rule
127

It isn't really a different issue. The problem with Daubert is that you end up with a judge, who's a bright guy, usually, but also not particularly up on science, usually, determining what's relevant and reliable. You end up with everything in barring really transparent lunacy, and not enough time or attention or background knowledge for the finder of fact, judge or jury, to tell what's more reliable: on any kind of close call, the expert who's more personally engaging/convincing is going to win.

I don't know what to do about it -- I've had weird daydreams about every district court having a permanent stable of special masters who are working scientists in any likely discipline on call, to act as advisors on Daubert motions and to give guidance to the finder of fact. But that's really alien to our legal system -- I'm literally thinking about the court going out and getting its own evidence rather than relying on the parties. Probably wouldn't work.


Posted by: LizardBreath | Link to this comment | 04-14-12 6:59 AM
horizontal rule
128

about every district court having a permanent stable of special masters

There could be Mythbusters franchises.

"Who you going to call? Casebusters!"


Posted by: JP Stormcrow | Link to this comment | 04-14-12 7:04 AM
horizontal rule
129

128: I will do this thing you ask of me.


Posted by: Turgid Jacobian | Link to this comment | 04-14-12 7:07 AM
horizontal rule
130

127

... on any kind of close call, the expert who's more personally engaging/convincing is going to win.

Is this really the case? I would think a lot of the time the jury will just ignore them both. And of course this argument appears to apply with even greater force to lawyers as: in any kind of close case the lawyer who's more personally engaging/convincing is going to win.


Posted by: James B. Shearer | Link to this comment | 04-14-12 7:29 AM
horizontal rule
131

127

... You end up with everything in ...

So you think the main problem is too much gets in?


Posted by: James B. Shearer | Link to this comment | 04-14-12 7:31 AM
horizontal rule
132

Whatever. The point is I don't think it's an effective way to get expert evidence meaningfully evaluated by a finder of fact.


Posted by: LizardBreath | Link to this comment | 04-14-12 7:32 AM
horizontal rule
133

The 'whatever' was to 130. To 131, where I started this was with not being sure exactly what the problem is -- too much gets in is sort of it, but it's more like expert evidence never gets critically evaluated by someone in a good position to do so: judges are competent to identify total, utter crackpottery and exclude it, but distinguishing between two real experts who disagree about what's right isn't what Daubert's for, and it's often going to be impractically difficult for a finder of fact without much technical knowledge limited to evidence put forth by interested parties.

I really don't know how to fix this.


Posted by: LizardBreath | Link to this comment | 04-14-12 7:38 AM
horizontal rule
134

133

... but distinguishing between two real experts who disagree about what's right isn't what Daubert's for, and it's often going to be impractically difficult for a finder of fact without much technical knowledge limited to evidence put forth by interested parties.

If you really have a sincere substantial disagreement between two equally qualified experts I don't see why the finder of fact should be expected to go beyond "experts disagree".


Posted by: James B. Shearer | Link to this comment | 04-14-12 7:48 AM
horizontal rule
135

If the expert testimony is dispositive of an issue in the case, the finder of fact has to pick a side. The disagreement isn't going to be sincere, it's ginned up by paying an expert: there are going to be some positions that are too wacky to find a reputable expert to take, but a very broad spectrum of positions that a reputable expert can be paid to take. And there's no one in a good position to evaluate "As between these two reputable experts, which one is wrong." The finder of fact, judge or jury depended, has to make that call, but they're not well placed to do it on much beyond the expert's personality.

I really don't have a solution.


Posted by: LizardBreath | Link to this comment | 04-14-12 7:54 AM
horizontal rule
136

135.LAST: IT'S LIKE I DON'T EVEN EXIST AT THIS SCHOOL ON THIS BLOG.


Posted by: OPINIONATED COMMENT 128 | Link to this comment | 04-14-12 8:07 AM
horizontal rule
137

Trapnel, the rules of evidence don't tell a juror what to do with what's admitted. They tell the judge whether to admit particular items of evidence.

Rule 702 codifies Daubert:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

There's a huge role for the judge here in deciding whether all the elements are met. But what the elements are, and how they weigh -- that's the product of a fairly extensive process, constantly under review. Rule 403 calls for a very significant exercise of discretion, but you can see exactly why such a rule would exist:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 803 lists the exceptions to the hearsay rule:

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will. (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for -- and is reasonably pertinent to -- medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. (5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by -- or from information transmitted by -- someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness. (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the office's activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness. (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. (10) Absence of a Public Record. Testimony -- or a certification under Rule 902 -- that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: (A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind. (11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization. (12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate: (A) made by a person who is authorized by a religious organization or by law to perform the act certified; (B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and (C) purporting to have been issued at the time of the act or within a reasonable time after it. (13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker. (14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if: (A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; (B) the record is kept in a public office; and (C) a statute authorizes recording documents of that kind in that office. (15) Statements in Documents That Affect an Interest in Property. A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose -- unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document. (16) Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established. (17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations. (18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if: (A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and (B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice. If admitted, the statement may be read into evidence but not received as an exhibit. (19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage -- or among a person's associates or in the community -- concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history. (20) Reputation Concerning Boundaries or General History. A reputation in a community -- arising before the controversy -- concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation. (21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character. (22) Judgment of a Previous Conviction. Evidence of a final judgment of conviction if: (A) the judgment was entered after a trial or guilty plea, but not a nolo contendere plea; (B) the conviction was for a crime punishable by death or by imprisonment for more than a year; (C) the evidence is admitted to prove any fact essential to the judgment; and (D) when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant. The pendency of an appeal may be shown but does not affect admissibility. (23) Judgments Involving Personal, Family, or General History, or a Boundary. A judgment that is admitted to prove a matter of personal, family, or general history, or boundaries, if the matter: (A) was essential to the judgment; and (B) could be proved by evidence of reputation.

I wouldn't say that this is perfection. Each element of each exception has a rationale and a history, though, and is the result of a judgment about reliability. I think the 'ancient documents' exception has become pretty silly, especially more than 20 years into the digital age, but all this means is that if the other guy gets his ancient document in, I have to argue its reliability directly to the jury, not just to the judge. And, again, the rules are under constant review, and are changed fairly regularly.


Posted by: CharleyCarp | Link to this comment | 04-14-12 8:08 AM
horizontal rule
138

121: The dying declaration rule seems kind of dumb to me, and were I a juror, I would consider it but be likely to give it much less weight.


Posted by: Bostoniangirl | Link to this comment | 04-14-12 8:11 AM
horizontal rule
139

wikipedia tells me that the dying declaration exception, which California calls an exception to the admissibility of hearsay rather than saying that it's not hearsay.


Posted by: Bostoniangirl | Link to this comment | 04-14-12 8:19 AM
horizontal rule
140

If I were changing the system here's what I'd do:

I'd have semi-professional jurors (say 1 year terms at median US salary) with more training (say 3 weeks). I'd give jurors a more active role in proceedings. (E.g. I'd allow some deliberation prior to the end, and they could ask substantial questions which the parties had time to respond to.) I would give jurors videos of the proceedings.

Instead of competing expert witnesses, the court would pick a genuine expert who could only be challenged by the parties under unusual circumstances. This person would be chosen using opinions of actual experts (e.g. there might be a government organization staffed by scientists who made recommendations, or professional scientific organizations could make lists.)

Finally I would replace as many undefined legal notions as possible by statutes. E.g. instead of having to have your building design be as safe as a "reasonable person" would do, you're just required to be at code.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 04-14-12 8:20 AM
horizontal rule
141

138

121: The dying declaration rule seems kind of dumb to me, and were I a juror, I would consider it but be likely to give it much less weight.

So if someone shoots you and you are dying you can't tell people who did it? I think there are good reasons for allowing this.


Posted by: James B. Shearer | Link to this comment | 04-14-12 8:26 AM
horizontal rule
142

So if someone shoots you and you are dying you can't tell people who did it?

You can, but they can't tell the jury. It's about closure, really.


Posted by: JRoth | Link to this comment | 04-14-12 8:29 AM
horizontal rule
143

138 -- Is it that you think people are more deceitful as they are dying? Or deluded?


Posted by: CharleyCarp | Link to this comment | 04-14-12 8:32 AM
horizontal rule
144

140

Finally I would replace as many undefined legal notions as possible by statutes. E.g. instead of having to have your building design be as safe as a "reasonable person" would do, you're just required to be at code.

A problem with this is the government can't be trusted to keep the code up to date. See this WSJ opinion article about why the Titanic tragedy was a failure of regulation because the ship was at code (regarding lifeboats).


Posted by: James B. Shearer | Link to this comment | 04-14-12 8:32 AM
horizontal rule
145

141 -- Make sure you do so as an excited utterance. 803(2).


Posted by: CharleyCarp | Link to this comment | 04-14-12 8:35 AM
horizontal rule
146

140: I feel that there should be a lottery somehow involved in the system.

/trapnel


Posted by: One of Many | Link to this comment | 04-14-12 8:37 AM
horizontal rule
147

I think those problems would be best solved by having a professional unpoliticized civil service with more power over the details of the regulations, rather than trying to solve it through the courts. Of course a big part of the problem is the existence of states, which makes things 50 times more inefficient. But that could be solved in practice by having the federal government produce recommendations, along with CA and Texas doing their own things, which other states could adopt.


Posted by: Unfoggetarian: "Pause endlessly, then go in." (9) | Link to this comment | 04-14-12 8:41 AM
horizontal rule
148

135

If the expert testimony is dispositive of an issue in the case, the finder of fact has to pick a side. ...

The instructions regarding burden of proof would come in here.

... The disagreement isn't going to be sincere, it's ginned up by paying an expert: there are going to be some positions that are too wacky to find a reputable expert to take, but a very broad spectrum of positions that a reputable expert can be paid to take. ...

This is the hired gun problem. They are ways to try to alleviate it. You could have the experts meet before trial with the judge to try to stipulate as much as possible. You could limit the annual income from testifying to reduce the incentive to fudge.


Posted by: James B. Shearer | Link to this comment | 04-14-12 8:42 AM
horizontal rule
149

140.2 -- What if I (and my scientific advisors) think an alternative methodology is better in the particular circumstance? Are you limiting me to cross-examination, or can I have my own guy on to explain why the other method is better, and that the better method produces the following result?

140.1 -- Sounds expensive. And then you end up with a whole work place dynamic -- romances, feuds, log rolling and horsetrading -- that you don't see in the typical 3 or 4 day trial.

140.3 -- I don't have any problem with a legislature enacting laws that define obligations, and make them exclusive. I think, though, that there really isn't really that much of this you can do. Last fall, I tried a covenant not to compete case -- in my state, they are permissible if 'reasonable' in particular senses, in the context. I don't think the legislature could define reasonability for that kind of thing: the geographic point is going to vary by industry, for example. I had a legal malpractice case a few years ago, and we had competing expert opinions on what a reasonable attorney should have done faced with a particular ruling. I'm waiting for a ruling in a case where one of the issues on appeal is mitigation of damages -- a party is only required to take reasonable steps. Here, the other guy didn't sell the investment asset, although he could have (with some effort) and probably would have cut the loss substantially, if not eliminated it altogether. Again, the circumstance is just too specific for meaningful codification.


Posted by: CharleyCarp | Link to this comment | 04-14-12 8:56 AM
horizontal rule
150

147 -- I like federalism a lot, and think 'efficiency' is way overrated. But really, a very simple step in the direction you want to go would be a statute that overrules Strawbridge v. Curtis, 7 U.S. 267 (1806). I think it could possibly be done with a two or three word amendment to section 1332 (although there might be some conforming amendments I'm not thinking of that you'd have to do as well).


Posted by: CharleyCarp | Link to this comment | 04-14-12 9:04 AM
horizontal rule
151

As long as we're dreaming, I'd go Chinese-bureaucracy style and rotate the pro-jurors from state to state, one outer trial, never their home state.


Posted by: Minivet | Link to this comment | 04-14-12 9:04 AM
horizontal rule
152

One per trial.


Posted by: Minivet | Link to this comment | 04-14-12 9:05 AM
horizontal rule
153

(As indeed Congress did in CAFA, for a limited class of cases).


Posted by: CharleyCarp | Link to this comment | 04-14-12 9:09 AM
horizontal rule
154

141: I think it can be used in some state courts more broadly. E.g. "my business partner is the guy who defrauded the IRS. I tried to confront him."


Posted by: Bostoniangirl | Link to this comment | 04-14-12 9:16 AM
horizontal rule
155

While we are talking hearsay, a couple of dumb questions on hearsay in criminal cases.

So the basic rule is hearsay cannot be used (lengthy list of exceptions aside) to weigh in on the truth or any other characteristic of the things reputedly said. But allowable as "What I heard" to establish why the person currently testifying believed what they did (presumably about either the event/thing discussed or the state of mind of the other person*), right? Or is that ever (or frequently) disallowed because it can be viewed as just an indirect way of introducing hearsay to a jury (despite any cautions given to them to not use it as such)? A bench judgment call?

*And can it ever be used to attempt to establish the actual state of mind of that person? (I guess that is what some of the exceptions like 'Excitable Statement' and 'Present Sense Impression' are for.)


Posted by: JP Stormcrow | Link to this comment | 04-14-12 9:28 AM
horizontal rule
156

155 -- Right, if an out-of-court statement is not offered for the truth of the matter asserted, it's not excluded by the hearsay rule. You'd have to have a reason why the evidence was relevant independent of the truth of the matter asserted, get over 403, and the other side is probably going to be entitled to a limiting instruction.

The most important thing, of course, is getting your objection out before the witness says the thing. And that's a whole lot easier said than done.


Posted by: CharleyCarp | Link to this comment | 04-14-12 9:45 AM
horizontal rule
157

A witness who is qualified as an expert by knowledge, skill, experience, training, or education . . .

My impression is that this isn't simple either. I remember the Harper's article about various examples of people being crushed in crows surges, and it talked about somebody who was an expert in crowd dynamics and who had been studying them for decades who wasn't allows to testify in one case (I think it was the Wal*Mart black Friday case) because he had no specific educational credentials and there was no body that could certify anybody as an expert in crowd studies.

Like anything, I'm sure that courts get it right some times and wrong others (and like LB, I'm not sure what the solution would be) but reading that I wondered if, for example, my father who's performed and taught music professionally for years, but who has no formal credentials, would be able to testify in a trial which needed (for whatever reason) a musical expert witness.

It just seems like there are many cases in which experiential knowledge will be more relevant to a given question than training or education and that it can't be simple for a court to decide how to certify somebody as an expert based on experience.


Posted by: NickS | Link to this comment | 04-14-12 10:04 AM
horizontal rule
158

157.1 sounds like error to me. But journalists often get court rulings wrong. As the rule shows, experience is a specific basis for expertise.


Posted by: CharleyCarp | Link to this comment | 04-14-12 10:13 AM
horizontal rule
159

A Surge of Crows--GRRM's next installment.


Posted by: JP Stormcrow | Link to this comment | 04-14-12 10:15 AM
horizontal rule
160

I suppose this is what you're thinking of. As you see on pp 11-13, the basis for the decision was more complicated than what you've remembered.


Posted by: CharleyCarp | Link to this comment | 04-14-12 10:22 AM
horizontal rule
161

That is, while Walmart raised the lack of formal training/accreditation, the exclusion wasn't based on that:

The parties agree that the discipline known as "crowd management and control" is not based on science. That fact, however, does not relieve the Secretary's expert from providing an analysis for reliability. The preponderance of the evidence in the record supports a conclusion that Mr. Wertheimer's opinions and recommendations were based solely on his personal experiences. There was no evidence that his opinions were based in whole or in part on the knowledge of other experts in the field collected over an extended period of time. Further, there was no evidence they were based on peer-reviewed texts or publications. Mr. Wertheimer conceded that he was unaware of the effectiveness of his recommendations. He was also unaware of anyone having tested his recommendations in a retail setting. Further, that the expert recommendations were generated solely for this litigation does not bolster their reliability. Finally, there was no evidence that other experts agreed with Mr. Wertheimer's recommendations and conclusions. In a case of this nature, with the potential to have a significant impact upon the retail industry throughout the country, it is essential the expert testimony presented be based upon more than the opinions of one individual, particularly here there was no indication his views represented the industry at large. Stated another way, if Mr. Wertheimer cannot explain how his opinions satisfy FRE 702's requirements, then his opinions are not admissible. After a thorough review of his testimony, and having observed the witness's demeanor at the hearing, I find that the witness's testimony does not meet the requirements of FRE 702. The witness's testimony and his reports are therefore excluded.

I'm not particularly impressed, but then I didn't listen to the guy testify, and the judge did.


Posted by: CharleyCarp | Link to this comment | 04-14-12 10:31 AM
horizontal rule
162

I've been on two juries, one civil, one criminal.

The civil one was about the fourth rerun of a dispute between a builder and a homeower, where the builder had built a non-conforming (to zoning laws) house and the homeower claimed (after this was caught) that he had not known it was non-conforming (there is no way he couldn't have known). They had sued each other, appealed, appealed again, and finally sent it back for retrial at a lower level. The jury frankly wanted to sentence them both to a public flogging. We instead agreed that the homeowner should pay the builder a fraction of what he claimed he was owed, and leave it at that. No doubt they are still at it.

The criminal one was a guy who was stopped for drunken driving and attacked one of the arresting officers. He claimed his wife had been driving and that he had had "two beers," and that the cops had it in for him because he had once lived in the town where he was stopped (at night, in the rain). After we convicted him, the judge told us he had several priors in several different towns and had done time for one of them. He just liked to punch out cops.

As for nullification, like the filibuster it seems like a good idea only when you forget that people who don't share your politics will use it too, and with less chance of you undoing what results.


Posted by: DaveL | Link to this comment | 04-14-12 12:06 PM
horizontal rule
163

I'd have semi-professional jurors (say 1 year terms at median US salary) with more training (say 3 weeks). I'd give jurors a more active role in proceedings.

Naturally I like this idea, as it fits in with my general inclination towards both granting ordinary folks more power within the political system and giving them the resources to use that power well. Some other countries--ones that don't usually use juries--have something not too dissimilar: lay judges. No idea how well it works out, though apparently the selection process in Germany makes it the preserve of middle-aged, middle-class white men. Clearly the answer is better statistical representativeness.


Posted by: x.trapnel | Link to this comment | 04-14-12 12:59 PM
horizontal rule
164

Also, that structure is very similar to that of the "civil grand jury" - I'm not sure how prevalent that is.


Posted by: Minivet | Link to this comment | 04-14-12 1:44 PM
horizontal rule
165

Except the civil grand jury is by application and barely paid. Still, resources and a year-term.


Posted by: Minivet | Link to this comment | 04-14-12 2:59 PM
horizontal rule
166

162.2: But what did the architect say?

If there was no architect, both owner and contractor deserve to rot.


Posted by: JRoth | Link to this comment | 04-14-12 7:06 PM
horizontal rule
167

166: My recollection is that the plans for the dwelling, which were approved by the town, showed it as conforming but odd. Then it was modified during construction.

I honestly don't recall if there was an architect involved; I don't remember any testimony by one.

Fundamentally, it was a two-family/side-by-side house that was shown on its plans to be a one-family and modified after approval by removing doors between the sides. The neighbors were not fooled, brought it to the town's attention, and that's how it originally ended up in court (ten years before I saw it).

You might wonder how they thought they'd get away with it, but around here there is a common practice of "legalizing" non-conforming stuff if it hasn't been caught for umpty-odd years.

As is often the case with Jarndyce vs. Jarndyce style cases, the issue had gotten down to money, and the only relevance of the non-conforming nature of the house was that each side claimed the other had been responsible, as a way of trying to invalidate the builder's monetary claim or support it.


Posted by: DaveL | Link to this comment | 04-15-12 8:27 AM
horizontal rule
168

That is, while Walmart raised the lack of formal training/accreditation, the exclusion wasn't based on that:

Thanks for looking that up. That seems reasonable. Whether or not the judge made a good decision in that instance it does seem like the judge should have the power to exclude testimony from somebody who can't provide a convincing justification for their beliefs. Though I'm not excited about the criterion, "There was no evidence that his opinions were based in whole or in part on the knowledge of other experts in the field collected over an extended period of time." That does seem like something which could be used to exclude experiential knowledge, but I do feel better after having read that excerpt.


Posted by: NickS | Link to this comment | 04-15-12 8:44 AM
horizontal rule
169

Oh man, we have friends who are involved with an ongoing campaign to try to save some other friend's multi-building super non-conforming extravaganza in Marin. Our friends are outraged that such a magnificent and unique place could possibly be demolished. It sounded sympathetic enough, but then I read the poor inspectors' reports of all the ways they tried to get the owners to stop doing new non-conforming things and to fix old things (some to do with waste water runoff), all to infinite no avail, and whoo boy.


Posted by: redfoxtailshrub | Link to this comment | 04-15-12 9:23 AM
horizontal rule