The Law Is An Ass

Don't look at me. Those aren't my words. Mr. Bumble said it (in Charles Dickens's Oliver Twist) and, for better or worse, that's what many people think. It doesn't matter if a law is just. It's just the law. And it will be followed whatever the implications.

One of the other main complaints is that, from the public's perspective, there are too many lawyers, and that they stimulate litigation and are more interested in winning cases and making money than they are in obtaining justice. It's a question of win or lose rather than right or wrong. One of the most popular “lawyer jokes” (yes, that's a genre) describes one dead lawyer as “a good start.”

Apart from the legal documents which we can't understand, there are two primary stages for the law from the point of view of the average citizen – as it applies to him [or her]

1. directly – as a juror or, for better (he sues someone or benefits from a law) or worse (he is sued by someone or is affected detrimentally by a law) or
2. indirectly – vicarious interest in the affairs of others, fact or fiction brought to him by the media.

Direct involvement is generally a hassle. The further one stays from the legal system the better. Win or lose one winds up with a major expense and an ulcer. But indirect involvement is fun. Most enjoyable are those instances when there is a trial and the individual matches his knowledge of the evidence and his “expertise” against the real or fictional jury. We know some things that jury members aren't allowed to know and, obviously, we are not party to much of the testimony they hear. And we often learn more than they about the application and the implications of the law at issue. The description of that law, and its application, are usually limited by the magistrate in jury instructions to the way they pertain to the particular case.

But that's often not good enough. Even after all the evidence is presented and the judge has described the law and the options of the jury, there are many instances when one or more jurors is uncertain about how to vote. There are “hung” juries (situations when a jury cannot reach a verdict) and mistrials based on that uncertainty. And there is occasionally an instance of “jury nullification”

when a jury returns a verdict of "Not Guilty" despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. (Doug Linder – University of Missouri – Kansas City)

That's an uncommon result however – usually because the jury doesn't think of it. More common are the cases in which one or more jurors has questions about the case whose answers would make deciding easier. But the rules are the rules and it's often difficult to get answers that are needed. Questions must be addressed to the judge and answered by him in terms of the testimony already given or based on the specific law. Sadly that may not solve the problem. Perhaps the rules themselves are in need of modernizing with the goal of achieving a fair decision rather than a judgment of who is the winner in a legal competition; between grandiloquence and a quest for truth. There is a difference between law and justice. There are times when attorneys avoid subjects they fear would be harmful to their cases, and they are not obligated to present them.

One way to deal with what is at least a part of the problem is to let jurors question witnesses and judges. They're the ones who must make the decisions. (Depositions are available to lawyers giving them the opportunity to gather facts and decide what will and will not be presented to the jury. As a result those affected indirectly often have questions and opinions beyond what is presented or permitted in court.) Perhaps jurors' questions should be screened and reworded by judges or others, but if jurors have questions, answering them is the best way to get an informed decision. Would there be more or fewer appeals? How would it affect costs? Would it affect the number of appeals? How would it affect the interest and attention of jurors? With additional information – specifically clarification of points of fact and law – jurors might reach more, and more-informed, decisions. They might reach them more quickly than is currently the case. And by questioning the judge, jurors may learn that their concerns are covered by existing statutes, and nullification is unwise and unnecessary.

It's not the way things are done but that doesn't make it wrong. The system as it now exists allows attorneys to conceal what they don't want to say, and to use their rhetorical skills to try to convince jurors to accept their arguments – even if they are concealing pertinent information which their opponent doesn't consider, though a juror might. And the current system limits a judge to a strict set of rules, precedents, and interpretations rather than a full a full menu. He is limited to judgments of the past, and the jury generally (but not always) doesn't learn what the judge meant. And if the judge (or the lawyers or witnesses) is biased, there is no way now for jurors to determine this.

Perhaps this is going too far. As things stand, however, testimony is limited and may not reflect reality. Changing the entire legal system is not only impractical but will never be done. Perhaps smaller changes should be considered. Kibbitzers might be better jurors than those limited by table rules. A wise owl is more to be desired than an ass.

September 28, 2016