The Jury On Trial

While we trust the jury system, we distrust jurors. They used not to be allowed to see a defendant testify.

The rest of the justices disagreed with Holmes and Hughes, in effect affirming the conviction. Gov. John Slaton courageously commuted Frank’s sentence to life imprisonment, but within weeks a mob seized Frank, took him across the state, and lynched him. His legacy, as expressed by Holmes, did, however, triumph.

In 1923 the Supreme Court, with Holmes writing the opinion, reviewed the conviction of five African-Americans by “a white jury—blacks being systematically excluded from both grand and petit [i.e., trial] juries”—in a trial that lasted about forty-five minutes. “No juryman could have voted for an acquittal and continued to live in [the county].” This time the Court agreed that federal relief was available:

“If the case is that the whole proceeding is a mask—that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion, and that the state courts failed to correct the wrong—neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this court from securing to the [defendants] their constitutional rights.”

“The administration of justice,” the Boston attorney and legal philosopher Charles P. Curtis once wrote, “is no more designed to elicit the truth than the scientific approach is designed to extract justice from the atom.” Maybe so, but as a society we have committed ourselves to the principle that justice operates more effectively, and achieves more acceptance, in direct proportion to its reliance on truth. Furthermore, we have taken the view, constitutionally and otherwise, that in general trial by jury maximizes the truth available for administering justice.

We trust the jury system, yet in many respects we distrust the jurors. The entire body of principles we call the rules of evidence rests on the assumption that ordinary people are too unsophisticated (or too foolish) to sort out the probable from the improbable and too naive to appreciate that an out-of-court statement not made under oath is less worthy of belief than a witness’s testimony in open court. Until the late nineteenth century lack of confidence in the jury’s common sense even led to excluding from the witness box the defendant in a criminal case and all parties in civil litigation. The stated reason was that their desire for a favorable outcome would irresistibly produce perjury, as if jurors would be less likely to detect false testimony from a party’s lips than from those of an ordinary witness.

Perhaps our anxiety is misplaced. Maybe we should worry less about a jury’s inability to spot liars and pay more attention to the way a juror must necessarily acquire information. We expect average untrained people to absorb evidence for days and weeks on subjects entirely foreign to them without explanation, clarification, or even the opportunity to take notes or ask questions. Thus we imagine that they can understand a judge’s “instructions on the law,” often read to them in a monotone and containing principles that law students take a term to master and whose meaning appellate judges often have palpable difficulty establishing.

On second thought, perhaps the jury’s capacity to determine truth is indeed a cause for concern and even doubt. As far back as the early 1900s, the great experimental psychologist Hugo Münsterberg was noting the discrepancy between what people see and what they remember and the role that suggestibility plays in courtroom testimony. Modern researchers, notably Elizabeth Loftus, have carried on that work, although courts have shown themselves most reluctant to let jurors hear evidence on the subject. As Justice Herbert P. Wilkins of the Massachusetts Supreme Judicial Court has written, “State court opinions generally note that the matter is within the jury’s knowledge and that the defendants’ rights can be protected by cross-examination and appropriate jury instructions.” As a result, science now places considerably less confidence in the human memory than does the court system, which assumes, and encourages jurors to assume, that although a witness may be mistaken, forgetful, or even dishonest, the recollective power is the principal source of trial-decisive materials.

Other research has begun to demonstrate that the decision-making process itself proceeds much less logically than we would like to believe. One recent study, for example, shows that by the end of opening statements—which come of course before the jury has heard any evidence at all—jurors have already begun to make up their minds. And having unconsciously taken a position, they typically begin to “filter” the evidence to fit the version of the case to which they have already attached themselves.