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Tuesday, August 27, 2002
06:15 a.m.
California Ford Bronco case - another fine jury mess
This New York Times article focuses on the impact on punitive damages of the eventual outcome of Romo v Ford.
More apposite to my concerns is the case study it offers of the way in which the US legal system positively glories in the jury's secrecy and capriciousness, not to mention its lack of expertise and accountability. [The opinion of the CA Appeal Court "here.]
Discussion of the relevant law starts on p10 of the opinion.
(1) "Jury deliberations are secret while they are occurring. No verbatim transcript or other record of the deliberations normally exists."
This is stated without a whit of shame - almost with a sense of pride! The entire court proceedings up to the time of the jury's retiring is transcribed: but, the most vital part of the trial, no!
(2) "Declarations seeking to reconstruct deliberations after the fact may be colored by the jurors' natural inclination to protect or attack the process that resulted in the verdict..."
Such reconstruction is only necessary because of the lack of a contemporaneous record in the first place.
(3) "Jurors bring to their deliberations knowledge, beliefs, personalities, and intellectual capacities....."
All the more reason why such factors should be laid bare by a record of their deliberations!
(Not to mention the hypocrisy inherent in the fact that, in voir dire, each party in the case does his level best to skew the "knowledge, beliefs, personalities, and intellectual capacities" of the jury to suit its own purposes.)
(4) "Jurors ordinarily are presumed to have followed the court's instructions. "
When informed that
"the law supposes that your wife acts under your direction"
Mr Bumble notoriously replies
"If the law supposes that.....the law is a ass....".
This 'presumption' is of the same kind: having established the heterogeneity of likely jury members, their improbable degree of fitness to carry out the task allotted to them, a presumption is made that truly makes Pollyanna look like Machiavelli.
It is perverse in the very sense in which the term is used in deciding whether to reverse a jury verdict on a question of fact: ie, that
"no reasonable finder of fact could have found for the [party for which the jury in question found]" (CA Code of Civil Procedure, cited earlier in the Rono opinion).
(5) An example of the 'presumption' in action (cited in Rono): the case of
"People v. Marshall, supra, 50 Cal.3d 907. In that death penalty case, during the jury's penalty phase deliberations, a juror claiming a law enforcement background stated to the other jurors that the absence of a known criminal record for the defendant was not determinative "because juvenile records are automatically sealed at 18 years of age" (Id. at p. 949.) The Supreme Court concluded that this was misconduct that raised a presumption of prejudice. (Id. at p. 951.) However, the court then applied the presumption that the jury would understand and follow the instructions from the court; those instructions, in this particular case, rendered the issue of a prior criminal record immaterial to the penalty determination. (Id. at p. 952.) Accordingly, the court held, the record established that the presumption of prejudice was rebutted. (Id. at p. 951.)"
Now, under the common law system, the prior criminal record of the defendant is one of the key pieces of evidence which are usually kept from the jury, on the grounds that its probative value is far exceeded by its prejudicial nature. Juries are not trusted to disregard such information in reaching their verdict.
Yet, when the jury is informed about priors not in open court but in the hole-and-corner of the jury room, the 'presumption' of acting in accordance with instructions comes in to wipe away the taint.
In trying to find analogies for the current, apparently universal, admiration for this medieval relic, I think of the Gold Standard. That men of great intellect and judgement, in the UK, US and France (to name but three), should have believed that the quantity of gold in the world should have some necessary connection with the quantity of money now seems as absurd as that those a century earlier gave similar credence to Bishop Usher's dating the beginning of the world at 4004 BC.
Absurd but true, and (something like) the economic crucifixion announced by William Jennings Bryan duly came to pass on account of their belief.
Where might the Keynes of the jury system be, I wonder?
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