22 August 2005

Peers to Peers

The Perfesser has some rather unhappy comments on juries in the aftermath of the Vioxx trials:

At the very least, this incident thus raises serious questions as to the competence of lay jurors to resolve technical issues. To be sure, there is some evidence that how technical evidence is presented matters a lot, and some suggestion in the press accounts that Merck's lawyers may not have done a very good job of presenting the evidence in a way that would maximize understanding. Even so, at the very least, this case confirms the urgent need for objective study of the ability of lay juries to understand and process scientific evidence. If it turns out that they cannot do so, perhaps it is time to take these sorts of issues out of their hands.

I'll accept that, in a limited sense, with one major modification:

…as to the competence of lay juries as they are actually implemented in the US today

In no particular order, here are my main objections to the way we empanel and use juries now:

  • Jurors are not encouraged to take notes, and ordinarily are not allowed to ask questions. If the military can manage to allow jurors to ask questions—particularly for clarification—when what is on the line is often far more important than "mere money," why can't we do the same on the civilian side? I've personally witnessed two vindictive military prosecutions blown out of the courtroom by juror questions (not to mention a half-dozen or more meritless and deceptive defenses).
  • It's too damned easy to get out of even appearing in the initial venire. It's not "jury duty"—it's a privilege and responsibility. As a modest proposal, maybe we should strike the jury right for five years of any individual who refuses to serve with the traditional "I'm too busy" excuses—and that includes striking that of an organization if one of the witnesses or central decisionmakers relevant to the particular matter did, too.
  • Then, too, there's the problem with peremptory challenges. Strike the peremptory challenges and move on.
  • Lurking under, behind, and around all of these objections is the shabby way that we treat juries and jurors in this country. I've never been called for jury service as a civilian (note: if anybody in the local court system is reading this, I'll serve if called!), so there are no sour grapes here. For the time(s) they are serving, though, jurors should be treated with no less dignity than the judge. I'm not proposing that we give them all robes, but there are still a lot of things that can/should be done, such as air-conditioning the venire rooms and limiting the pervasive snooping in "pre-trial questionnaires"… not to mention making the compensation for jury service a sum greater than the poverty line.
  • The legal profession (and many commentators, mostly from right of center at this time) needs to abandon its arrogant assumption that it knows more about the way trials "should" turn out, without having actually seen the evidence or done the investigation/discovery, than the jury that did. Too many comments disparaging juries' work are based upon news reports of what a particular news outlet felt was significant (and met its preconceived notions of what was important), and not the actual facts.
  • The legal profession needs to get a lot better at communicating with juries. Its arrogance in this respect is even more pervasive (and disserving of clients) than the last point! For example, in the course of making legal arguments—I'm thinking in particular of appellate briefs—we constantly give "mini-summations" of where our arguments are; we immediately cross-link parts of the record to each other, rather than expect the judge to do so; we structure our presentation around what we want the court to decide. None of these happen in front of a jury. It's not all "rules of evidence," either. If we think that our judges need these communication tools, what makes us think that we'll communicate accurately with a jury if we don't do provide same to them?

In short, I think the Perfesser's objections indicate only a need for further examination and perhaps reform; this isn't an "either/or" situation ("jury or no jury"), but a "what can we do better" situation.