November 25, 2009
Legal Department
Keeping the Jury in the Dark
I'm guessing that most of you are neither lawyers nor career criminals, which means that, like me, your most significant role in the criminal justice system is probably going to be juror. As Norm Pattis explains, this means you're going to be kept in the dark:
When we refuse to let juries know the truth about the consequences of a conviction in a criminal case we hamper a jury's ability to check the abuse of power. Juries that are not fully informed can't do their job. Withholding truth from juries is dishonest...
We want juries to decide facts and facts alone, leaving to the judge the responsibility to impose such conditions as the law requires. This rigid separation of fact and law results in moral paralysis, however. In what other context do we ask folks to make a decision regardless of the outcome?
Be sure to read the whole thing.
Allowing the jury to makes its decisions without knowledge of the consequences would make sense if the jury's fact-finding process was well-defined---like a laboratory test or a gymnastics score---but it's not.
The instructions to jurors famously include the phrase "proof beyond a reasonable doubt" but, almost as famously, the word "reasonable" is never defined for the jury. It's left to the jurors themselves to figure out what it means. And as a practical matter, wouldn't you expect that the reasonableness of the doubt depends on the consequences of being wrong?
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This short post, and especially the last sentence, is brilliant. I may try to find a way to work it into my next jury voir dire or closing argument.
Wow, I agree, John. Windy, you really need to go to law school. John, your piece in the Wisconsin Law Review on informed consent has been very helpful to us in planning litigation. Thanks for passing it along.
Geez, guys, stop it. You're making me blush.
I'd be a terrible lawyer. I might be able to think up few interesting things to say in a blog, but I'd get crushed in the courtroom, where it counts.