Yesterday, I made a simple argument for handing the jurors the facts that are not in dispute at the beginning of the trial. I want to extend that argument a bit further to a more expansive idea that I have. Rather than just giving the undisputed facts to the jurors, why not boil the entire trial down to its text and give it to the jury as a kind of case study. All of the questions asked in the trial are already in multiple depositions. If a witness gives an answer that is different from the deposition, the deposition is brought out and read. Why not deliver all the evidence to the jury in writing? I can read faster than I can listen, and importantly, I can alter my pace as needed.

By using writing alone, the emotional expressions of the witnesses would be lost. Sometimes the expressions of the witnesses were helpful for interpreting their answers. But on the whole, I felt that it just gave more credibility to witnesses who were adamant about their testimony, which was a problem when the circumstances were clear that they should not be so certain of their memories of events from seven years ago. Abolishing the impassioned speeches from the lawyers would not be a bad thing. Also, being able to remove inadmissible testimony entirely would be better than telling the jury to disregard testimony that was already heard.

Here is my idea that I think some state should try: Have a judge meet with the lawyers from both sides to create an unbiased document that describes the case. The undisputed facts are written as normal narrative, and the disputed facts are noted within the narrative with references to evidence. The entire packet is sent to each juror to read before coming to court. (There might be some need to ensure that each juror actually reviews the material.) The jury then meets and reaches a verdict without ever meeting any of the parties involved. This would result in a much faster process. It would also make a smooth-talking lawyer less valuable. It would also remove much of the emotion from the proceedings, replacing it with cold hard text.

The principle goal of this proposal is to reduce the cost to the jurors in terms of their time. A substantial cost of any trial is the time of the jury—twelve people for several days at mean wages is thousands of dollars. This cost is mostly externalized as jurors are not paid more than a nominal amount for their time. Because of lost wages, potential jurors are widely acknowledged to try avoiding service. Those who stand to lose significant wages will be underrepresented in the jury. Simply reducing the cost of jury service will ameliorate this underrepresentation without costing the government or lawsuit parties any more. It is truly a win-win for all parties involved.

  • Zeph

    As with all of your posts, interesting.

    I suspect that as you suggest, there’s a lot of fossilized practice from earlier ages involved. Ideally, we could trust that only the useful parts would have been retained over the centuries, with the less useful parts discarded – even if it’s not immediately obvious to observers what function certain parts of the process fulfil. But there’s a lot of inertia in the system, and I suspect that a lot of dysfunctional process has become hallowed ritual. And there’s not much incentive for the priesthood to make themselves less needed, or to reduce their income with shorter trials.

    Still, i would think that the process of hearing more from witnesses gives the jury more time to make judgement about credibility and character. So there may be some degree of functional purpose for at least some of the “inefficient” parts of the process.

    It’s also interesting that in another post you describe how despite the confusing order of presentation, eventually the overall picture came into focus through repetition. It occurs to me that sometimes the artificially slowed down pace of presentation (due to procedural niceties) may give more time for things to “sink in”, than a fast paced and efficient presentation without redundancy.

    We are all often guilty of designing systems which would work well for ourselves – for our way of absorbing information, our way of deciding. From the quality of your blog posts (which show you to be a very intellectual and thougtful person), I do not think we can take you as a “typical” juror for whom the system should be designed. That which was “effiecient” for you, might be overwhelming for some others. Written communication that allowed you to read and absorb at your own pace, might put some others to sleep (compared to oral presentation).

    On the other hand, a more efficient process might attract more jurors like yourself to serve! So there’s a tradeoff. And thus your thoughts become interesting to think about.

    • David Hagen

      I wish I had the citations at hand, but it was my understanding that people were pretty bad at judging the character and reliability of witnesses on the stand. If I remember correctly, this is because the jurors don’t see the extent of the preparation and rehearsal that goes into critical testimony. They interpret the Q&A interaction as mostly candid.

      Your point about me not being the typical juror is very fair. I think science can inform the design of trials, and that means actually testing methods on average jurors, not just on people who think about/blog about these kinds of things.