Dan Solove at Concurring Opinions is not inclined to rants and depressing assessments of the law.  But it looks as if the story of State Senator/Law Professor Robert Martin of Seton Hall has put him over the top. Some doofus put Martin on a New Jersey jury, and he learned how the rest of the jury was essentially clueless and turned to him for the answer.  Martin wrote about his experience, exposing how our beloved legal fictions are nothing more than a sham.

The initial reaction of must, including Turley, was that this shows why lawyers have no business being on juries.  The idea that a lawyer on a jury would be merely one of twelve voices is dangerously naive, and it certainly lends itself to the mischief of a jury deferring to the judgment and expertise of a single lawyer, anathema to the basic concept.

But Dan doesn’t stop there.  He’s had enough of the fiction of juries altogether, and goes for the jugular:

But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke.

The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?

Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.

Third, many judges disallow note-taking. But in lengthy trials — or even in trials lasting a day or two — how are jurors supposed to remember the details? And in the case Martin describes, the jurors weren’t allowed to take notes about the law when the judge instructed it. I’d like to try an experiment — give a bunch of judges an hour lecture about a specific set of legal rules, not let them take notes, and then see how much they remember. This is difficult even for those with legal training — imagine how hard it must be for those without such training!

While Dan’s criticism of the viability of juries is clearly on target, his proposed alternative, professional juries, raises an entirely different list of issues.  I think Dan may have jumped the gun by offering an alternative in advance of his explanation of the problems, so I would prefer to separate the two and put the professional jury proposal on hold for a moment.

No honest trial lawyer will argue that they believe that juries reach verdicts for the right reason.  When we speak to them after a trial, regardless of whether we’ve won or lost, we invariably find that they totally misapprehended some crucial point in the case.  Sometimes this works to our benefit, but other times we want to punch a hole in the wall because it’s so frustrating to have a critical point, well developed, brilliantly argued and completely missed.

The entire concept of jury instructions is nuts.  Jurors truly want to do their job, well and honestly.  But the idea that they can sit for an hour and listen to the drone of unfamiliar words strung together and get the basic meaning, no less the nuance, is ludicrous.  Taking notes won’t help, and often hurts.  They are too busy writing to pay attention, and have no clue what is important to write down and what is inconsequential.

Even if the issue of the jury applying the law was removed from the equation, we have a more basic problem.  Jurors cannot discern truth from fiction, accuracy from mistake, a well-prepared lie from honesty, any more than anyone else.  Sure, we all think we can tell because we need to make decisions and move on in our lives, but the truth is that it’s purely a guess.  So even the most basic factual determinations, with the wealth of complex rules and high powered arguments, devolve to a sheer guess. 

What the jury system does provide, however, is civic trust.  We allow a bunch of people in robes to tell us that we have to go to prison, or have to pay out all the money we have, because we believe that society depends on having a system to resolve disputes.  We believe the system to resolve disputes has some element of integrity because the determination comes from a “jury of our peers,” an oft-repeated and curiously misapprehended phrase.  As long as we can say that we had our day in court and the “jury has spoken,” we collectively shrug and accept the verdict, no matter how much we may otherwise disagree.

No amount of perceived expertise will ever trump the faith we place in the jury.  It’s not necessarily that the jury deserves this faith, but that it’s an article of faith that, for better or worse, there can be no better method than to let 12 people pronounce our fate.  It’s almost religious in nature, a belief that defies all empirical evidence yet allows the only branch of government without guns to maintain a role of decision-making by sheer fiat.  It’s quite an amazing trick.

Having established that a jury of our peers is a wholly unreliable mechanism to both find facts and comprehend the law to be applied, we can now turn to the question of whether there is a better alternative.  I start with Dan’s proposal of a professional jury. 

Initially, neither a professional jury nor a judge for that matter is any better at fact finding than a peer jury.  Truth and lies remain blind guesses, as no one has the magic answer to distinguish one from another. 

A professional jury could be trained in the law so that the fiction that a jury can be given the law by the judge (after the fact, when it fails to provide a framework for them to differentiate between important facts and inconsequential facts) will no longer matter.  But then, professional juries, like lawyers, might know the law but similarly have their own sense of what parts of the law should be emphasized or ignored. 

Consider, if you will, the same law as viewed through the eyes of a prosecutor and defense lawyer.  The likelihood is strong that the two will have entirely different analyses of a given set of facts based upon their relative view of substantive legal propositions.  The law is not a monolith, and is often quite vague and subject to interpretation.  To believe that a professional jury will have a single view of the law is to fail to realize that the law isn’t quite that simple.

So, professional juries might well have the expertise in the law that a peer jury lacks, but it would also be like playing craps with loaded dice, based upon who got to pick the members of the professional jury.  Put a bunch of prosecutorial minded pros on the jury and you get a foregone conclusion in place of a verdict.  It eliminates the legal instruction problem, but it also undermines the possibility of a fair verdict. 

Moreover, professional juries would, by definition, hear cases again and again.  The impact of a brain damaged baby on a peer juror would be significant.  But would it matter much to a professional juror who has heard it a dozen times?  The professional juror will grow inured to the pain, suffering and harm presented.  It’s one of the few things that a peer jury does well, being virgins to the misfortune of others.  Jurors who are unimpressed with yet another injustice are just too cold to appreciate their role of providing redress. 

And finally we come to civic trust, something a professional jury can never provide.  One of the commenters to Dan’s post phrases this as civic trust and engagement.  I can’t get worked up about engagement, given how few people I’ve ever met who desire to sit on a jury.  While I suppose that there’s a place for citizens to play a role in the legal system, I suspect that this is more a theoretical concern than a practical one.  The question I’ve been asked most over my 25 years of practice is how to get out of jury duty.  I suspect that people would be quite happy with the legal system as long as it was someone, but not them, sitting on the jury.

Clearly, having the government “own” the professional jury would eliminate any element of civic trust.  Indeed, the government has already made its decision: It owns the cops.  It owns the prosecutors.  It owns the judges.  The case has received their approval already by virtue of getting to trial.  Adding a fourth layer of governmental approval really does nothing to instill faith in the integrity of the system.  Even if the professional jury was truly independent, a notion that no one would believe based upon our overwhelming lack of faith in the government as an institution that “serves” anyone except itself, we wouldn’t believe it.  Not really.  Not even members of the government would buy into that fiction. 

While I agree wholeheartedly with Dan Solove that the existing jury system is fundamentally flawed, and that it is systemically incapable of rendering a competent verdict, I don’t see professional juries as being a better solution.  I do believe, however, that we could significantly improve the competency of the jury system by chucking the legal fictions upon which it now depends and trying to come up with a process that provides peer jurors informs them of the things they need to know ahead of time, so that they can follow the testimony and evidence and distinguish the consequential from the inconsequential in real time.

I believe that jury instructions need to be radically changed to meet the comprehension levels of normal people who don’t have three years to spend learning the law before rendering a verdict, though given the difficulties in communicating concepts to a broad array of people, this could be an impossibility.  The sad truth is that most people are incapable of thinking conceptually anyway, so there is no mix of words that will ser
ve to communicate clearly, let alone communicate accurately.

But then, even if we could figure out a way to help peer jurors, once selected, to do their job properly, we’re still stuck with the problem of selecting fair and impartial jurors, which for all the discussion had here and elsewhere, remains a matter of pure and unadulterated voodoo.

If all this leaves one with the impression that trials are a bad game with ever-shifting rules, that just so happen to involve some of the most important issues and problems that any individual human being can endure, then you’ve gotten the message.  And if there was one insular group that should never been sitting in judgment of another human being, it would be those who believe that all the cute platitudes upon which our legal system relies are actually true.  It’s people like that who are the most dangerous to fairness, integrity and any potential for justice.  It’s a terrible system, and whether it’s better than all the others depends on whether today is the day that your ox is gored.