How do we fix [Juries]?

mcdermott

So read an interesting piece on Slate today about the second trial of Ed Graf, for the murder by arson of his stepsons, in Texas.

I'll try to tl;dr it, but it's worth the read.

Basically he was convicted twenty five years ago based on a fire investigation suggesting arson and that the boys were locked in his shed. Experts have since realized the evidence used to convict him (and countless others) is nonsense...the "science" was nothing of the sort, and the physical evidence now suggests not only no real evidence of arson, but also that the door was likely open.

Regardless, as you'd expect, he was tried again based on inconsistent testimony of people a quarter century later, and even a jailhouse snitch thrown in for good measure. In the end, at the last moment before the verdict, he plead guilty and accepted two 60 year sentences.

But, the twist? Due to the law at the time of the act, by pleading guilty he was eligible for mandatory parole a week later. A guilty verdict would have meant life.

So, to the topic in the thread title. Obviously the linked piece seems a bit biased in favor of his defense. Even allowing for that, it seems there was clearly reasonable doubt. Yet after a short period of deliberation, a note is sent by the jury...

"How many jurors does it take to reach a unanimous verdict?"

Let that settle in. Assuming this reported question is accurate verbatim, his life is now in the hands of twelve people, none of whom seem able to define "unanimous." Considering his defense hinges on expert testimony as to the science behind the fire, testimony that included polysyllabic words in English (a language which these people are apparently unfamiliar with), that's a concern.

Even being charitable and assuming it was misreported and they merely wanted to know how many were required to deliver "a verdict," that implies that these people were wholly unfamiliar with the duty they'd been charged with.

This is bad, right?

Honestly, that question alone should have been grounds for a mistrial, in any fair system, due to jury incompetence. But in seriousness, what is the solution to issues like this? Is the entire jury system untenable? Is there anything better? Because what we have now is clear incentive to plead guilty to crimes regardless of guilt, because juries cannot be trusted to deliver fair and impartial verdicts.


For starters, looking at the specific situation here (in which apparently the two holdouts were persuaded to join the majority) I'd think we need to institute some standards on deliberation.

- There should be a minimum deliberation period, based on the charges involved. If a verdict is reached faster, oh well. You're obligated to spend a minimum amount of time in the room.

- There should also be a maximum deliberation time, and to exceed that should require some portion of the jury to agree to extend. Not sure if it should be majority, 2/3, whatever.

The main idea being to remove any incentive to reach a quick verdict and go home, and also remove inventive to cave to the majority and set aside reasonable doubt as a holdout.

Those ideas may be crazy though. But what we have now? Abasolutely ridiculous.

So It Goes

I don't agree with minimum/maximum deliberation times. That is not the problem.

The jury system is fundamentally flawed because it relies on humans. Humans fuck up all the time and are inconsistent. I have seen juries ask some absolutely bonkers questions. I have seen careful and deliberate juries make decisions I agreed with on multiple count cases. I have seen hung juries and juries that concluded in five minutes that yes, defendant is guilty of possessing the meth that was in defendant's pocket. I have heard a juror say it would have been better for them if the trial played more like they do on TV.

The trial is usually won during voir dire when the attorneys pick a jury. This is when you win or lose, based on reading body language, using instinct, and making your case through carefully crafted voir dire questions. I think that's pretty stupid.

I am all for complete reform of the system, or moving to a different one. This will never happen, but I'm for it.

Also, keep in mind that every criminal defendant has the right to waive jury and have their case decided by the judge only.

DevoutlyApathetic

mcdermott wrote: »

- There should also be a maximum deliberation time, and to exceed that should require some portion of the jury to agree to extend. Not sure if it should be majority, 2/3, whatever.

There sorta is, that's what a hung jury is. Basically if the deliberations were a thread it's the point where the mods say fuck it and just lock it up tight.

I'm not sure what a sorta but not really formalized thing you're talking about here would do.

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Hahnsoo1

I recently read "Unfair: The New Science of Criminal Injustice", which shows a LOT of problems with the way juries work in the US. It highlights a trial where someone was exonerated by DNA evidence, but still is convicted AGAIN by a jury for doing the crime. It's a great book that's highly topical for this D&D thread.

One interesting solution proposed by the author is having virtual anonymized trials, where the identities of the Judge, Jury, Lawyers, and Plaintiff/Defendent are all protected by anonymizing avatars. This brings in other problems (possibility of "hacking" the jury), but it removes a lot of the confounding factors that cause miscarriages of justice, like losing the body language (often misleading), getting rid of appearance (fat people are more likely to be convicted than skinny people, same for black or ugly people. ), etc.

AngelHedgie

The problem with juries is that we don't respect them culturally. How many of you have heard the "joke" that a jury is "12 people too stupid to get out of jury duty"? That's the problem right there. The reason you tend to see juries filled with retired people and housewives is because they're the people who can actually afford to spend time on a jury.

Of course, the big thing to remember is that for all the issues with juries, that is eclipsed by the issue of prosecutors being way too powerful in the justice system as it stands now.

Feral

I'm not entirely convinced that the primary failure here is the jury system, rather than the admission of evidence that perhaps should have been inadmissible. Or, at the very least, over-confidence in forms of evidence (such as eyewitness reports) that are known to be unreliable.

Dehumanized

Feral wrote: »

I'm not entirely convinced that the primary failure here is the jury system, rather than the admission of evidence that perhaps should have been inadmissible. Or, at the very least, over-confidence in forms of evidence (such as eyewitness reports) that are known to be unreliable.

It's just one broken process in a whole line of broken processes that's our whole justice system, really.

tinwhiskers

First and foremost jury pay needs to be much larger-equal or proportionate to income lost. Until that's the case there is always going to be incentive for Jury's to return a verdict quickly. Also it works as a screen against intelligent competent people, because those people tend to have jobs. Jobs that pay them more than $40 a day or w/e compensation is in your area. Additionally voir dire is going to work against those people staying in, both side-though the prosecution more so- want jurors who are going to be lead along through what ever story they are trying to sell and not notice whatever holes there are in it.


I think the much bigger fish to fry as far as justice reform is on the prosecution side. Punishments for stuff like withholding exculpatory evidence need to be harsh-with those 'tough on crime' mandatory minimum sentences.

So It Goes

Feral wrote: »

I'm not entirely convinced that the primary failure here is the jury system, rather than the admission of evidence that perhaps should have been inadmissible. Or, at the very least, over-confidence in forms of evidence (such as eyewitness reports) that are known to be unreliable.

in the case in the OP, I agree the problems were much larger than a dumb jury

I still think the jury system is too broken to really fix without large and sweeping changes

DiannaoChong

Feral wrote: »

I'm not entirely convinced that the primary failure here is the jury system, rather than the admission of evidence that perhaps should have been inadmissible. Or, at the very least, over-confidence in forms of evidence (such as eyewitness reports) that are known to be unreliable.

I'd settle for the public learning basics like eyewitness testimony being unreliable, and spotting easy logical fallacies.

Anecdote, which I think is related enough?

I was on jury duty once, and everyone was very vocal about how stressful and detrimental to our psyche it was. The trial while short, was a mess, the prosecution and defense were at each others necks the whole time. The entire case was he/she said, people are obviously lying on the stand when taking sides between 2 friends, and there was a lot of issues in the jury room. Some opinions were downright despicable for common public to have. We ended up hung, which some jurors felt was wrong for a bit but realized there was no other solution. I doubt it was retried when the case was all just witness testimony.

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Mr Khan

Two ideas i've liked in this thread so far: anonymizing the whole process and making juror pay equal to your daily income (or, just make jury duty leave from a job required to be fully paid by employers as if the employee were working there normally).

Tommatt

I will say this from my time being on juror duty. The problem with jurors is they don't do their job, they don't analyze the facts and nothing but the facts and look at the case. They try to play fucking CSI and figure out what happened, and what motivations the person had, and act like a detective. Which they're not, but they imply things. And they do no no understand without a reasonable doubt and what that means.

It doesn't help that our court system kind of sucks and nobody gets to tell their story. Better help you have a good lawyer.

But jurors try to act like their a member on an episode of CSI, instead of what they are, jurors who are presented the evidence in the case and hold somebodies life in their hands with their decision.

tinwhiskers

I wonder if moving the unanimous goalpost would make the process better. Maybe you keep it for guilty(or make it 11/12), but if say anything less than 5/12 are for guilt, its not hung its just an acquittal? The idea of a unanimous standard for reasonable doubt is kinda weird, like if more than half the jurors go with not guilty than there is almost certainly reasonable doubt there.

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gjaustin

I'm mostly in agreement with the people who have posted so far.

The biggest problem is that jury duty is unrewarding and a massive pain. $40 a day is not enough. I'll make a strong claim, that the pay from jury duty should be competitive with a decent job. So probably in the $150 range - and I wouldn't be opposed to connecting it to cost of living. You'd have to put a maximum on deliberation time to prevent a jury from colluding to keep getting paid, but I think it would be worth it.

The other problem we run into is that domain knowledge will get you kicked off the jury. If you're familiar with an element of the trial, one of the attorneys is not going to want you on the jury. And since more educated people tend to have a broader knowledge base, we're selecting against desirable jurors.

But even if those changes can't be made or are undesirable for other reasons (e.g. I don't blame a lawyer for not wanting another lawyer on a jury), we could probably fix everything with reforms aimed at prosecutors.

Further down in that linked article, there's a portion that talks about another man whose arson conviction was overturned after 40ish years. He ended up not getting any reimbursement because the prosecutor forced him into pleading no contest - by threatening to prosecute him again.

caligynefob

I can only argue from a danish viewpoint, but it might be beneficial to see how it can also work.

In DK cases that carry a possibility of under 4 years in prison there is 1 judge and two jurors (they have a different term, but are equal with the judge in power). With sentences over 4 years there is from 6-9 jurors depending on the circuit. Deliberation happens in coalition with the judge(s) (1-3). Verdict and length of punishment is decided by a majority vote in the deliberation room. If the vote happens to be 50-50 the defendant goes free.

However, the problem with the american system (and to a certain degree any legal system) is the prosecutor not backing down from introducing "evidence" that sometimes borderlines hear-say and not being the objective part that he's supposed to. The solution could be the judges being better to make evidence inadmissible, and I would wager that the danish judges are better suited to steer jurors away from it because of the deliberation method.

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zagdrob

Overall, I think that juries are one of the better parts of an entirely awful American justice system.

Guilt is presupposed in most cases, and almost universally the best way to tell if you are going to walk or not is the price of your lawyers (and how white your skin is). Hell, we have a culture where asking for a lawyer is considered by a lot of people to be a sign of guilt. How fucked up is that?

In theory, a jury of your peers, one that honestly understands the law and what they are trying to do, and earnestly attempts to approach the case in as unbiased and impartial fashion as possible is the best option.

A prosecutor who makes you gamble against 20 years of charge stacking in front of a jury, or three years for a guilty plea is a much bigger problem. The apathy of jury duty is at most just a symptom of our country having an entirely fucked up perception of civic duty.

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gjaustin

I'll still take a potentially incompetent jury determining my innocence over a potentially corrupt politician.

caligynefob

Prosecutors universally really should be better to back the fuck off when examining evidence and wether or not it objectively should be introduced. Criminal cases shouldn't be notches on the belt but should instead be the objective truth.

I witnessed a case where my criminal law lector where the presiding judge. The prosecutor introduced some evidence from the defendants permanent record that showed a minor assault twelve years ago. Evidence that couldn't be entered in as judging factor but was instead used to describe the defendants character. That way of trying to influence the jurors mindset is despicable.

Captain Marcus

I'd allow juries to have pens/paper and take notes. Trying to remember what someone said after 8 hours of testimony is problematic enough; I can't imagine trying to do it after a multi-day trial.

So It Goes

mcdermott wrote: »

Really I think the issue with juries is that all of them, or nearly all, are biased to guilt.

I can think of no other way that a jury would decide that two kids playing with matches and starting an accidental fire that kills them is less likely than a stepfather burning two children to death. Even when the physical evidence suggests the former.

Kids playing with matches is "a thing." Even more so when I was a kid (same timeframe). There were GI Joe PSAs about it and everything. But once you get it in your head that somebody is a monster, nothing can get you to accept the remarkably reasonable and likely alternative that two boys managed to do something stupid that got them killed. You'll accept any evidence at face value that allows you to reject the idea. And discount any that doesn't.

And jurors naturally figure that the guy at the table did something. Or why would we even be here? I don't know how to eliminate that bias either, since statistically they are not wrong. But we don't take away people's freedom based on that.

Edit: Same goes for the mother. Like, is it really easier to believe you married a monster than that two kids did something foolish?

Confirmation bias exists both towards and away from guilt. I don't think all juries are biased to guilt. I think it very much depends on local culture, circumstances of the case, nature of charges, etc.

So It Goes

Captain Marcus wrote: »

I'd allow juries to have pens/paper and take notes. Trying to remember what someone said after 8 hours of testimony is problematic enough; I can't imagine trying to do it after a multi-day trial.

This is allowed and the clerk keeps possession of these during the trial.

Certain evidence can also be played back again (security videos, 911 recordings) for jurors.

So It Goes

zagdrob wrote: »

Overall, I think that juries are one of the better parts of an entirely awful American justice system.

Guilt is presupposed in most cases, and almost universally the best way to tell if you are going to walk or not is the price of your lawyers (and how white your skin is). Hell, we have a culture where asking for a lawyer is considered by a lot of people to be a sign of guilt. How fucked up is that?

In theory, a jury of your peers, one that honestly understands the law and what they are trying to do, and earnestly attempts to approach the case in as unbiased and impartial fashion as possible is the best option.

A prosecutor who makes you gamble against 20 years of charge stacking in front of a jury, or three years for a guilty plea is a much bigger problem. The apathy of jury duty is at most just a symptom of our country having an entirely fucked up perception of civic duty.

In theory. I sincerely do not believe this to be the current case in how juries actually operate at the trial level. At least not in any consistent manner.

So It Goes

caligynefob wrote: »

I can only argue from a danish viewpoint, but it might be beneficial to see how it can also work.

In DK cases that carry a possibility of under 4 years in prison there is 1 judge and two jurors (they have a different term, but are equal with the judge in power). With sentences over 4 years there is from 6-9 jurors depending on the circuit. Deliberation happens in coalition with the judge(s) (1-3). Verdict and length of punishment is decided by a majority vote in the deliberation room. If the vote happens to be 50-50 the defendant goes free.

However, the problem with the american system (and to a certain degree any legal system) is the prosecutor not backing down from introducing "evidence" that sometimes borderlines hear-say and not being the objective part that he's supposed to. The solution could be the judges being better to make evidence inadmissible, and I would wager that the danish judges are better suited to steer jurors away from it because of the deliberation method.

I could support this type of hybrid system.

Are Danish judges elected? (I am aware this might appear to be a very stupid question)

Mr Khan

Charge stacking is more because the system would collapse under its own weight if any appreciable number of suspects rejected the plea deal, the system would be so overburdened that the 6th amendment would come into play because of how long it would take them to get you in front of a jury. Which is why i think it's fertile ground for a protest movement, although it's also both classic and literal prisoner's dilemma to get every defendant in a jurisdiction to all simultaneously reject the plea deal

minirhyder

My problem with the idea of juries is that they're just people. Regular people.

Given the state of our educational system, regular people have shown time and time again to not be very good at analyzing facts, not making random correlations between things, and not letting emotions cloud their judgement every step of the way.
On top of this, we have have huge biases based on race, sex, gender, sexual orientation, etc.
Regular people are just not capable of being impartial and logical.

I'd much prefer juror to be a job that people are trained for. People who at least are aware of things like biases, spurious correlation and know how to avoid basic traps that our brains play on us.

caligynefob

So It Goes wrote: »

caligynefob wrote: »

I can only argue from a danish viewpoint, but it might be beneficial to see how it can also work.

In DK cases that carry a possibility of under 4 years in prison there is 1 judge and two jurors (they have a different term, but are equal with the judge in power). With sentences over 4 years there is from 6-9 jurors depending on the circuit. Deliberation happens in coalition with the judge(s) (1-3). Verdict and length of punishment is decided by a majority vote in the deliberation room. If the vote happens to be 50-50 the defendant goes free.

However, the problem with the american system (and to a certain degree any legal system) is the prosecutor not backing down from introducing "evidence" that sometimes borderlines hear-say and not being the objective part that he's supposed to. The solution could be the judges being better to make evidence inadmissible, and I would wager that the danish judges are better suited to steer jurors away from it because of the deliberation method.

I could support this type of hybrid system.

Are Danish judges elected? (I am aware this might appear to be a very stupid question)

They are formally elected by our justice minister. Candidates are proposed by a cabal of judges after a job is posted. The difference in DK is that the appointment isn't a political maneuver.

Edit: And no, not at all a stupid question, I like these kind of threads as they give me insight in a foreign justice system and the shortcomings therein.

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So It Goes

caligynefob wrote: »

So It Goes wrote: »

caligynefob wrote: »

I can only argue from a danish viewpoint, but it might be beneficial to see how it can also work.

In DK cases that carry a possibility of under 4 years in prison there is 1 judge and two jurors (they have a different term, but are equal with the judge in power). With sentences over 4 years there is from 6-9 jurors depending on the circuit. Deliberation happens in coalition with the judge(s) (1-3). Verdict and length of punishment is decided by a majority vote in the deliberation room. If the vote happens to be 50-50 the defendant goes free.

However, the problem with the american system (and to a certain degree any legal system) is the prosecutor not backing down from introducing "evidence" that sometimes borderlines hear-say and not being the objective part that he's supposed to. The solution could be the judges being better to make evidence inadmissible, and I would wager that the danish judges are better suited to steer jurors away from it because of the deliberation method.

I could support this type of hybrid system.

Are Danish judges elected? (I am aware this might appear to be a very stupid question)

They are formally elected by our justice minister. Candidates are proposed by a cabal of judges after a job is posted. The difference in DK is that the appointment isn't a political maneuver.

Edit: And no, not at all a stupid question, I like these kind of threads as they give me insight in a foreign justice system and the shortcomings therein.

Yes, I was just wondering if they were elected by the populace. Which lots of judges here are. Which, I think, tends to create some problems even when you have judges as fact finders in these cases.

ObiFett

minirhyder wrote: »

My problem with the idea of juries is that they're just people. Regular people.

Given the state of our educational system, regular people have shown time and time again to not be very good at analyzing facts, not making random correlations between things, and not letting emotions cloud their judgement every step of the way.
On top of this, we have have huge biases based on race, sex, gender, sexual orientation, etc.
Regular people are just not capable of being impartial and logical.

I'd much prefer juror to be a job that people are trained for. People who at least are aware of things like biases, spurious correlation and know how to avoid basic traps that our brains play on us.

Professional Jurors wouldn't solve the bias problems since they would quickly develop biases towards particular lawyers and judges.

Additionally, I can see a problem arising almost immediately where Law Firms (who have tons of money) could start investing in either paying off jurors or sending people to be professional jurors and work for them.

caligynefob

So It Goes wrote: »

caligynefob wrote: »

So It Goes wrote: »

caligynefob wrote: »

I can only argue from a danish viewpoint, but it might be beneficial to see how it can also work.

In DK cases that carry a possibility of under 4 years in prison there is 1 judge and two jurors (they have a different term, but are equal with the judge in power). With sentences over 4 years there is from 6-9 jurors depending on the circuit. Deliberation happens in coalition with the judge(s) (1-3). Verdict and length of punishment is decided by a majority vote in the deliberation room. If the vote happens to be 50-50 the defendant goes free.

However, the problem with the american system (and to a certain degree any legal system) is the prosecutor not backing down from introducing "evidence" that sometimes borderlines hear-say and not being the objective part that he's supposed to. The solution could be the judges being better to make evidence inadmissible, and I would wager that the danish judges are better suited to steer jurors away from it because of the deliberation method.

I could support this type of hybrid system.

Are Danish judges elected? (I am aware this might appear to be a very stupid question)

They are formally elected by our justice minister. Candidates are proposed by a cabal of judges after a job is posted. The difference in DK is that the appointment isn't a political maneuver.

Edit: And no, not at all a stupid question, I like these kind of threads as they give me insight in a foreign justice system and the shortcomings therein.

Yes, I was just wondering if they were elected by the populace. Which lots of judges here are. Which, I think, tends to create some problems even when you have judges as fact finders in these cases.

Nope, no public vote. I really don't get that about the US system as well, the only thing I see that would do is to drive up sentences to their absolute max, because you don't win elections by being lenient on crime. It's bad enough hearing politicians being "tough" on crime.

cckerberos

mcdermott wrote: »

his life is now in the hands of twelve people, none of whom seem able to define "unanimous."

All the note shows is that there was confusion in the jury room about the term. True, that might mean that none of the twelve knew what the word meant. But it could also mean there was just one who didn't know and refused to take everyone else's word for it. Or who had some crackpot theory about what the term meant in a legal sense.

So It Goes

Here is a jury instruction that doesn't use the word unanimous

UCrJI No. 1016

VERDICT—MISDEMEANOR CASE

When you return to the jury room, select one of your members to act as presiding juror. The presiding juror has no greater voting weight but is to preside over your deliberations and be the spokesperson for the jury. You should then deliberate and find your verdict.

If it becomes necessary during your deliberations to communicate with me, do so in writing. I will consult with the parties before responding.

No one except for you, the jurors, is to be involved in your deliberations. Therefore, do not tell anyone, including me, how many of you are voting not guilty or guilty until you have reached a lawful verdict or have been discharged.

This being a criminal case, each and every juror must agree on your verdict. When you have arrived at a verdict, the presiding juror will sign the appropriate verdict form.

After you have reached your verdict, signal the bailiff. The court will then receive your verdict.


And here is Oregon's felony one which you will notice may be different than your state's (unless you live in Lousiana)

UCrJI No. 1015



VERDICT—FELONY CASE



When you return to the jury room, select one of your members to act as presiding juror. The presiding juror has no greater voting weight but is to preside over your deliberations and be the spokesperson for the jury. You should then deliberate and find your verdict.

If it becomes necessary during your deliberations to communicate with me, do so in writing. I will consult with the parties before responding.

No one except for you, the jurors, is to be involved in your deliberations. Therefore, do not tell anyone, including me, how many of you are voting not guilty or guilty until you have reached a lawful verdict or have been discharged.

This being a criminal case, 10 or more jurors must agree on your verdict. When you have arrived at a verdict, the presiding juror will sign the appropriate verdict form.

After you have reached your verdict, signal the bailiff. The court will be reassembled to receive your verdict.

So It Goes

also pro-tip: jurors often don't read/understand the jury instructions even when they are that simple

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