I just finished a seven-day trial as a juror on a civil suit. This was my first time called and serving on a jury. It was an enlightening experience. There are a number of observations that I have. I may make an omnibus post to share all the little things I found surprising, from the high quality of the jury video to the great facial expressions of the judge. For now, I am going to focus on one major observation: most of the court time was spent extracting from the witnesses facts that were not in dispute, and if these facts had been directly conveyed to us, it would have been far more efficient without sacrificing any fairness in the proceedings. I am going to change a few details of the case so that this article will not draw any unrequested attention to the participants in this case.
At the start of the trial, the jury is told only that the case is a lawsuit and the names of the plaintiff and the defendant. If it was not for the opening statements, we would have no idea at all what the case was about at all. There are several problems with opening statements. Firstly, they are really short. You may think that the bias in the opening statement is the biggest problem. It’s not; the paucity of context is confusing. We hear a flurry of names for the first time. One company contracted a construction company to perform some work, who then subcontracted out a part of the work to another company, who then subcontracted out a part of that part, who then hired the plaintiff who was injured on the job. All of these companies have various employees, supervisors, foremen, and carpenters. I furiously tried to construct a map of the major players in my notebook, but was ultimately left with a gap-riddled tree. This was a big problem for me. We started hearing the evidence without the context to understand it.
After the opening statements, they went right into presenting evidence. Now there is a strange thing about evidence in the US justice system that I did not know going in. Apparently, no one can tell the jury anything, present any evidence to the jury, even physical evidence, except for witnesses. To understand how weird this is, I’m going to present two different scenarios. In both scenarios, the jury starts with no information concerning what happened.
Scenario 1
Someone: Here is a picture of the warehouse where the incident in question occurred. (Shows picture to jury.)
Scenario 2
Lawyer: (To witness) I’m going to show you a picture. (To judge) May I approach the witness?
Judge: You may.
Lawyer: Is this a picture of the place where the incident in question occurred?
Witness: (Studies picture for some time.) Hmm, it could be.
Lawyer: If I represent to you that this is the warehouse in question, would that be consistent with your recollection?
Witness: Yes.
Lawyer: (To judge) I would like to have this marked as an exhibit.
Judge: (To other lawyer) Any objection?
Other Lawyer: No objection.
Judge: Mark it.
Clerk: So marked as exhibit 5.
The goal of each interchange is to simply show the jury a picture of the place that everyone is going to be talking about for the next week. This fact is not in dispute, but the jury needs the context of the lawsuit. There are many facts that are not in dispute, but every fact is entered with the same care as every other fact. This results in hours upon hours of very slowly telling and retelling a story.
The difficulty is compounded by the fact that no witness witnessed the whole story, so the early witnesses testify with no context. For a simple case with only one or a few witnesses to a single scene (like a cop pulling over a drunk driver), this is not a problem. The entire incident can be described by a single witness; there is no important context to consider.
By the end of the trial, I feel like I got the whole story. The extraordinarily slow and repetitive presentation of the evidence helps overcome the lack of context at the beginning of the trial. The story was told many times over, so I had to get it eventually just from sheer drilling. But I always felt that I could have gotten the story far more efficiently than I did.
And this inefficiency bothered me. About ninety percent of the facts in the case were not in dispute. Why were we not given a few sheets of paper that began, “The following is a narrative of the events relevant to this lawsuit. Portions of this narrative were accepted by both parties as undisputed. Some facts are in question, and the differing stories according to the plaintiff and defendant are clearly marked.” I know that they did not do it in this case because that is just not the way American courts are run. But why they not run this way? Why are the undisputed facts not given directly to the jury?
The risk of introducing bias is minimal. At its simplest, if one side thinks that something is disputed, then it is not given to the jury in this way. If either side disputed all the facts, the system would simply revert to the current method. As far I could tell, all of the evidence was already reviewed by both sides and judge in order to determine what was admissible. While classifying evidence as admissible or inadmissible, why not also classify it as disputed or undisputed?
I can understand why the system was originally constructed in this way. If your population is widely illiterate, then all the information needs to be provided to the jury orally. If publishing is expensive and slow, then you cannot do the back and forth necessary to build a narrative that both sides agree on and then give copies to the jury to read. But neither of those problems exist today. America is universally literate, and editing and printing documents is trivial.
While there are a few physical pieces of evidence, the principle substrate of the court is words. A court takes in words and outputs decisions. With all of the information technology that we have invented in the several centuries, can we not improve this important and expensive argument processor? We should at least narrow down the argument portion of the trial to the points that actually need arguing. Give jurors the undisputed context directly, without all the legalese.