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December 13, 2007


You write, "I suspect that those Massachusetts politicians or officials who have the power to give juries such information don’t greatly care about the accuracy of jury trials."

That seems a bit strong. It is possible to be annoyed without drawing the conclusion that the annoying people have such bad motives. First, there could be other reasons for not allowing the videotape; second, they could just be too lazy to set something up.

If I'm crossing the street and someone is turning, sees me, and still comes really close to running me over, it might be that he doesn't care if he runs me over, but I think it's more likely that he's just too lazy to go around me or too much in a hurry or whatever.

It seems to me that accusations of bad motives should usually be reserved for situations where other explanations have been recognized to be unlikely, but the absence of good motives is a different matter. We already know that most of our fellow citizens, and ourselves much of the time, are lacking in good motives that would, if we had them, be of great benefit to others.

As a general rule, it seems to me that people are frequently prevented from understanding the world around them because they don't want to acknowledge the characteristics of the people around them. They don't want to hate people, so they ignore reality. A much healthier but rarer response to disappointment at human nature is to note it and not hate people anyway.

"First, there could be other reasons for not allowing the videotape; second, they could just be too lazy to set something up."

Isn't this the definition of just not caring? If you think it's a good idea to do something and it doesn't cost you too much, yet you don't do it because you don't feel like it (because you're lazy) MEANS that you just don't care that much. Not caring is not a bad motive; it's a lack of good motive.

In this case, it does mean that Massachusetts just doesn't care that much about the accuracy of rape cases. Projecting mean spirited motives misses the point that there are no motives. If motives were actually involved because someone actually cared, we would see policies aimed at making it easier for defendants to receive a "not guilty" verdict. Or we would see policies making it easier for prosecutors to obtain "guilty" verdicts. Or we would see a policy "arms race" on both sides as each side gets policies implemented aimed at helping both sides. Since the situation described above doesn't help either side and essentially provides the jury with coin to flip to decide the case, indicates a lack of caring.

Alternatively, the reason for the rule could be to prevent a perceived jury bias, e.g. that a jury's decision would be less accurate if it overanalyzed evidence. Such reasoning is quite cynical and very likely wrong, but it's dispositive that judicial officials "don't care" about accuracy.

Since we are dealing with government procedures here, I think ignorance needs to be given strong consideration. Information rarely flows well in a bureaucracy, and I suggest it is possible (and in fact might be likely) that the people who have the power to change the situation are probably likewise ignorant of the situation or its implications.

This could be, in engineering terms, a 'normal' error.

Media technology isn't just a matter of providing useful information. Giving the jury video tapes of witnesses' statements (and of all other parts of the trial?) might require, to be fair, rules on camera positioning and focus ranging. Moreover, making such technology available to jurors might significantly change the process of jurors' deliberations.

Surely there are aspects of the criminal justice system that show little public concern for equality under law, truth, and justice. Perhaps lack of video recordings available in juries' deliberation results from lack of concern. But genuine concern doesn't imply making such video available.

For a clear case of the power of digital presentation technologies to affect a trial, see the Skakel case.


But what objections could anyone have to giving juries audio recordings or at least transcripts of testimonies?

I wish jury duty was truly compulsory. Also, I wish attorneys did not have the power to remove jurors. Also, I wish juries were made up of 15 citizens, and a majority was sufficient for a verdict. I wish all jurors understood the right of jury nullification.

The citizens who were most able to see injustice and mount a campaign to change the court system, are also the citizens least likely to serve on a jury.

In fact, if you wore a t-shirt that said "I understand the right of jury nullification", it would be a guaranteed dismissal. I would be surprised if you managed to stay 5 minutes in the courthouse.

My feeling is that the judges and attorneys find the jury members to be annoyances. Important only as "window-dressing".

But what objections could anyone have to giving juries audio recordings or at least transcripts of testimonies?

1) Do not underestimate the power of tradition, especially in a precedent-oriented, highly conservative organization that is given the power to enforce social order.

2) Changing the conditions under which juries must operate is incompatible with the principle of precedent.

3) In especially short trials, jurors are sometimes forbidden to take notes, with the given reason being that with relatively little time between testimony and judgement, jurors' time would be better spent paying attention than trying to write down what's said.

I think some judicial systems place a premium on first impressions. For example, I recall reading that some jurisdictions forbid note taking by jurors.

And suppose you had been given a video of the testimony: How much experience do you have in determining the veracity of a witness? How much experience does anyone have, including judges and attorneys, given that the true answer is rarely ever produced to educate such decisions? How do you know that an apparently believable witness isn't just a good liar or that a faltering witness isn't just nervous under pressure?

Douglas Galbi,

Multimedia in the courtroom is an interesting topic.

How would you feel about an unattractive black defendant (who wasn't going to testify) hiring an attractive white surrogate to sit in the defendant's chair during his trial?

Or how about videotaping an entire trial, having all objections resolved and edited in or out by the judge, and then showing jurors only the "judge's cut?" If there was a mistrial, there would be no need to conduct another trial, the video could simply be shown to another jury. Or, once all the testimony is finalized, actors could then be hired to perform the parts of the attorneys, witnesses, defendants etc. Rich defendants could hire Denzel Washington or Tom Hanks to impersonate them. Poor defendants would get court-appointed actors from summer stock. Do you think justice would be compromised?

I'm sorry. Am I on the wrong site? Is this "Yelling About the Status Quo" or "Overcoming Bias"?

General points: Let's dig up some research that shows that people have higher success rates of separating truth from falsehood and relevant details from irrelevant details under all of these various conditions. While it certainly SEEMS like transcripts would be helpful and we can EASILY think of specific scenarios where it makes all the difference between the right decision and the wrong one, I am not willing to jump to the conclusion that the net value is positive. Nor should you be. The more we feel like it's obvious, the more we should want to ensure that we are on secure footing.

ManuelG, please explain your reasoning lest a malevolent genie finds an edge case for your simply stated wishes. Also, I'd like the reasoning of 15 jurors and a simple majority fleshed out. I'm sure you will agree that it's an arbitrary number. (Why not 9? Works for the Supreme Court.)

James writes, "But what objections could anyone have to giving juries audio recordings or at least transcripts of testimonies?"

One might object if one believes that trial procedure should not separate for jurors the pragmatics of speech from symbolic representations of speech. There is a large body of linguistic work, called pragmatics, that provides relevant knowledge for considering this issue.

jhy writes, "Multimedia in the courtroom is an interesting topic. ... Do you think justice would be compromised?"

I agree that multimedia in the courtroom is an interesting topic. But the scenario you propose is so ridiculous that I don't think that it deserves serious consideration. With respect to video recording of testimony, the main point of my previous post was that this issue needs to be analyzed carefully, rather than taken to have an obvious answer.

Note that the problem isn't simply video. I believe that, in most U.S. jurisdictions, jurors could review videos that were introduced into evidence, just as they could review other evidence.

LeoG writes, "Let's dig up some research that shows that people have higher success rates of separating truth from falsehood and relevant details from irrelevant details under all of these various conditions."

What you seem to want is what's generally known as scientific procedure. Court trials and scientific procedure have deep connections historically. But with respect to personnel, institutions, and practices, court trials and scientific procedures differ greatly today. Science, however, can make a contribution to reasonable trial procedure. I discussed a multimedia presentation in a trial in relation to neuroscientific evidence at the link I included previously.

Many restrictions on court evidence are based on beliefs that unrestricted evidence would bias the juries. Have legal scholars collected any evidence supporting these beliefs?

It's desired by Defense Attorneys.

I served on a jury in Manhattan, where we were also unable to receive transcripts of anything at all. We even, during deliberation, specifically requested that the judge explain the difference between second degree and third degree, and that we be given that explanation in writing. This was refused, with the judge telling us he was not allowed to give us any written transcripts, as a matter of state law.

After the verdict was in, he came to answer our questions. He told us that the rule originally came from a time when not all jurors were presumed literate, but that Defense Attorneys had lobbied to preserve this rule. The reason it was seen as advantageous to the Defense is that, given a burden of proof lying with the Prosecution, anything that served to add confusion and cloud memory helped weaken our certainty and thus tilt the balance back towards the middle. And a jury that is 60% sure of guilt is supposed to find Not Guilty. So if you're not sure of anything, no one gets convicted.

The US legal system doesn't seem to place a high priority on accuracy. As it's designed, there is no participant tasked with discovering the truth. It's the defense's job to win. It's the prosecution's job to win. The judge's job is to play umpire. The jury doesn't get to see all the evidence (some of it is inadmissible), doesn't get to question witnesses or seek out additional evidence, and after all isn't asked to decide which side's story is accurate - only to determine whether the accused is guilty beyond a reasonable doubt. I gather that the theory behind an adversarial judicial system is that when both sides are motivited to win, the party with the truth on its side will win out most of the time. It does seem to work reasonably well, but accuracy is not a primary goal of the design.

As a fellow resident of the Peoples Republic, I might suggest, given the track records of our solons in the General Court, that part of the reason is so many of our reps and senators eventually face a jury, they will never give up the least advantage of the defense.

How did the trial turn out?

How did the trial turn out?

"How did the trial turn out?"

Not guilty on rape but a hung jury on two lesser charges. Everyone on the jury, however, thought it was more likely than not that a rape occurred, but we all had some reasonable doubts about whether the rape happened.

If you google 'note taking juries', you get articles on experiments in real life juries, scientific articles and research on the matter ranging from 1951 to present, and even a National Jury Trials Innovation Project. I think there is no reason to assume that bureaucratic laziness has anything to do with the matter, but that the juridicial system is highly conservative about change. That doesn't sound to me as very bad.

In general, the main objection against notes seems indeed to be that jurors might be less attentive and spend to much time taking notes. It is also unclear who would be benefit, I read people claiming both ways.

The scientific research is mainly behind paywalls, but the trouble here seems to be that while research and experiments with mock or real trials are all possible and being done, the results can only be used to say what side benefits. Which one really determines the truth better is pretty hard to research.

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