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]
- 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
- 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
