Judge Not

Judge Not

Judge Not

How the dismal science applies to your life.
Feb. 1 1997 3:30 AM

Judge Not

It's time to knock the stuffing out of judicial featherbedding.

Judge Hiroshi Fujisaki has instructed the jurors in the O.J. Simpson civil trial to ignore everything that happened in the criminal trial. This makes him the judicial equivalent of the automatic-elevator operator who will not allow the passengers to press the buttons. If passengers started pressing their own buttons, there would be fewer jobs for elevator operators; if jurors started gathering their own information, there would be fewer jobs for judges.

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Economic theory predicts that special-interest groups will try to manipulate the rules of the workplace to make themselves indispensable. Everybody knows about union featherbedding, and everybody knows about complex legislation--written by lawyers--that only lawyers can interpret. But it seems to have escaped popular notice that judges have developed the arcane rules of evidence that keep judges in demand.

Judicial featherbedding explains why judges insist on filtering everything the jurors hear. In the Simpson case in particular, a lot of interesting arguments have been made, and not all of them have been made in Fujisaki's courtroom. Why would we want to shield jurors from perfectly good reasoning just because it happens to arise not in the courtroom but in an editorial or over the dinner table?

The standard response, of course, is that we want to shield jurors from bad reasoning. But, if we trust these people to sort out wrongheaded analysis from sound reasoning in the courtroom, how can we not trust them to do the same with the editorial page?

In fact, the entire system of shielding jurors from "irrelevant" information (like past convictions, in criminal trials) betrays a disturbing inconsistency. A juror who is capable of sorting through conflicting claims from dueling DNA experts surely is capable of judging the informational content of a past conviction.

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Nevertheless, we allow judges to exclude evidence even though, once evidence has been introduced, we trust jurors to decide how much weight it should receive. In other words, we believe that jurors are perfectly competent to decide whether a given piece of evidence should be given a weight of 30 percent or 70 percent or 90 percent, but not whether that same piece of evidence should be given a weight of 0 percent. I can think of no set of beliefs about the limits of jurors' competence that would recommend such a policy.

Either jurors are capable of deciding how much weight to assign a given bit of evidence or they're not. If they are capable, then by all means show them all the evidence and let them ignore what they think is irrelevant. If they are not capable, then why do we have juries in the first place? Either we have a very muddled view of what jurors can accomplish, or the system has been devised to serve the interests of judges and lawyers who thrive on confusion.

I'm not talking about things like the exclusionary rule, which prohibits jurors from seeing evidence that was gathered illegally. The exclusionary rule serves a clear purpose by discouraging overzealous police officers from inappropriate behavior. Whether that benefit is worth its cost in terms of false acquittals is arguable, but at least there is a clear benefit. By contrast, the limited admissibility of legally acquired evidence serves no apparent purpose, except to generate motions by lawyers, rulings by judges, and grounds for appeals.

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Y ou might think that without judges to carefully control the flow of evidence, jurors would drown in a sea of irrelevant information--and trials would go on forever. But that problem is solved most efficiently by having lawyers pay (in cash) for excessive use of courtroom time, not by the long and costly process of motions and appeals.

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The jury-selection process is another good example of judicial make-work. The officers of the court go to enormous lengths to choose unbiased jurors. But what is so desirable about the absence of bias--and of the informed speculation that might have led to that bias? At election time, we are not urged to avoid the media so as to remain unbiased until we get to the voting booth. Isn't it inconsistent to prefer both a well-informed electorate and an ignorant jury?

(Sometimes, apparently, jurors are chosen not just for specific ignorance of the case but for general ignorance of the world around them. I have a friend who was excluded from a jury because he answered "yes" to the question, "Do you think a man who's been arrested is more likely to be guilty than a man who hasn't been arrested?" Presumably his place was taken by another juror who really believes that the police arrest people completely at random.)

Jurors are kept off-balance--and in need of additional guidance from the bench--by the judge, who instructs them to convict if the defendant is guilty "beyond a reasonable doubt," without telling them whether a "reasonable doubt" consists of a 1 percent risk of error, a 5 percent risk of error, or a 10 percent risk of error. Lawyers scoff at the notion that doubt can be quantified so precisely. Their scoffing is justified, but it's also irrelevant. It is true that no juror can be sure whether his or her doubt is more or less than 5 percent, but it is equally true that no juror can be sure whether his or her doubt is more or less than "reasonable." With a quantified target, jurors would at least know what to aim for, even if they can't be sure of hitting it.

It's crazy to think that jurors who are unsure about two criteria (what is a reasonable doubt, and does my own doubt exceed that level?) will be more accurate than jurors who are unsure about only one criterion (does my doubt exceed 5 percent?). And quantified standards have the added advantage of flexibility--they can be adjusted to different levels for different crimes. But judges, whose jobs depend on judicial procedures being impenetrable, convoluted, and self-contradictory, systematically conceal what they are thinking of when they use the phrase "reasonable doubt."

The entire purpose of legal tradition and precedent is to make outcomes predictable. But judges have both the motive and the opportunity to contort tradition and precedent in ways that render outcomes illogical and unpredictable. Respect for the law is enshrined in our culture, but it should not blind us to the possibility that the law can be corrupted to serve sordid ends.