Friday, September 16, 2005

Hating Juries

As much as the Founding Fathers thought juries so central to the cause of justice that they twice specifically recognized the right to a jury trial in the Bill of Rights, it is no secret that many in the modern world hate juries, and never hesitate to pour their scorn upon a jury decision they believe to have been in error. It is claimed that "jurors" with specialized training will be less prone to error.

It is interesting to note, first, that the people who are behind the denunciations of the jury system (with the exception of doctors and their lobbyists) don't seem to have any special training themselves. That is, they tend to be reporters and pundits, often reciting what has been fed to them by "tort reform" lobbyists, and people who have read the articles and columns by those reporters and pundits. (Or law professors who have done the same.) It is worth asking, do those critics of the jury system believe that they, themselves, are suitable jurors for scientific issues?

It is also worth asking, to what degree do those with "specialized training" get it right? Are judges in fact more likely to rule correctly than are jurors? Do juries in which members have "specialized training" (as reflected in voir dire) "get it right" more often than juries without such training? Or are we to just take it on faith that "specialized training", however that happens to be defined, will improve accuracy?

Which in turn raises the question, "What is specialized training"? Does a juror who is hearing a pharmaceutical product liability case have to have high school science classes? A college degree? A college degree with a minor in the physical sciences? A college degree in chemistry? A masters in biochemistry? A Ph.D. in pharmacological sciences? An appointment as a professor of pharmacological sciences? Is this going to be a "hard and fast" standard, with state legislatures defining the minimum qualification for each profession, and each specialty and subspecialty of each profession? Or will this be left to the judge's discretion (in which case we may see appeals suggesting an abuse of discretion by a judge who permitted a juror to serve on the basis of a bachelor's degree in chemistry, but without also requiring that the juror had completed, for example, classes in cellular biology and neurochemistry). Oh yes - and should there be a work experience requirement, or a recency of degree requirement, so we can be sure that the specialized training remains fresh in the juror's mind?

What about the notion that we can take people who don't have the background to serve as jurors, give them specialized training, and transform them into effective finders of fact? This is the notion often advanced in the context of "malpractice reform" - we could specially train judges who would then be better able to decide medical malpractice cases. How long would this specialized training be? And what is it about the fact that somebody has been appointed or elected to be a judge, or happens to hold a law degree, which automatically makes the person more suited for "specialized training" than a juror? I know lawyers and judges who took as few math and science classes as they could possibly take while still qualifying to graduate. And I know many non-lawyers who have astonishing natural aptitude for maths and sciences.

Further, doesn't all this make it fair to ask why lawyers who advocate this type of reform, and who are already able to do so, don't take the time at trial to provide the very education that they lament jurors don't possess? The prosecution in the O.J. Simpson trial, the outcome of which is often raised in relation to "dumb juries", did a horrible job of educating the jury about DNA. I heard Christopher Darden lamenting that the defense had exercised a peremptory challenge to remove "the only potential juror who knew what deoxy... deox... what DNA stood for". (Not an exact quote, but that's the gist of his comment.) If the prosecutor, months after the most important case of his career, still can't choke out the term "deoxyribonucleic acid", whose fault is it that he couldn't impart the science of DNA onto the jury?

Why... obviously it must be the dumb jurors' fault.

Another issue bypassed by the "tort reform" advocates in this debate is the role of the judge as an evidentiary gatekeeper. If the defense lawyers believe the plaintiff's case to be built on "junk science", they should bring the appropriate pretrial motions to keep the "junk science" out of evidence - and their motion will be decided by the judge. If they lose the motion, the judge is effectively declaring the resolution of the scientific issue to be a legitimate question for the jury. So before critics jump down the throats of the jury, as they seem inclined to do with the Vioxx case, at least in my opinion, they should first be explaining either why the defense chose not to pursue a pretrial ruling to exclude the evidence or how the judge erred in denying that motion.


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