Jury Duty Three. A Service for Amateurs.

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The jury is a part of a larger social order whose purpose is to determine the fate of persons accused of acts contrary to established law. Anyone caught up and charged passes through a linked sequence of encounters with police, courts, and prisons. The people operating in  these spaces split between professional and amateur types.  In court trials professionals  predominate except for three categories: the jurors and the witnesses, the accused and victims.  The jurors, especially those called up for the first time, are overwhelmingly amateurs.

By professionals I mean specialist workers who are careerists. Their knowledge of what is going on and how it works is deep.  Their jobs are the primary source of their incomes. Their reputations for competence are constantly on the line. They have a built-in self-interest in the institution of courts and law that is an independent element in their official acts.

The amateurs are temporary. The case before them is a large part of their judicial experience. (The popular culture gives everyone expectations of the process). Their primary employment lies elsewhere. For them the case in which they participate is a relief as well as a distraction from  ordinary life. Their knowledge of the process and its possibilities is relatively limited

The witnesses match the jurors as amateurs except for the experts who tend to be repeat performers   All witnesses have either direct access to the original reality of the crime or have technical knowledge that claims priority in interpretation of these facts. They together provide the information out of which the lawyers fashion images of the truth.

The two sides of the criminal act, unless professional criminals, are also amateurs in the court setting, If forced to a trial they represent the key task of the participants–the question of what actually happened at the scene of the crime.

In a democracy the state works for the people through its agents.  The professionals are agents. The jurors are the people–a sampling drawn directly from the whole. Unlike the agents who prepare through study and experience and then apply for jobs and receive regular salaries or wages and pursue careers in the courts and its agencies, the jurors are drafted for their period of service and then return to the people. Their wage received is nominal at best. There is no career aspiration here nor opportunity to become cadre–to find a full-time career through their service.  You can’t get there from here. They have no choice but to express the public opinion and the common sense  since these cultural moments reside in them. By being themselves they are everybody. This is not a perfect voice. It always takes the form of a probability distribution.

There is a paradox: the sovereign people assembled as jurors in court are subject  to the supervision and instruction of the people’s agents. There is a circularity here–the people appoint the state and its agents who then draft people into juries and then supervise them. And around she goes.

The situation is simple. An event, the crime, occurs involving specific people in a sequence of acts. This is the immediate reality. At some later time we suppose that what happened can be reconstructed to an approximation–not perfectly but with enough precision so that who did what to whom can be retrieved. We believe we can know the truth of the incident. When we say that someone is guilty we presume that we have the correct recollection of what happened. It is also presumed that we can compare two models of the same event and identify the one closer to the reality past.

More generally this need to describe what happened at some past time is an accepted research task. Vide history and archaeology. In law, the judge seems to be the perfect witness. Any crime committed in his court in his presence can be adjudicated summarily and punishment imposed at once. The judge seeing the illegal act requires no further trial nor the assistance of the jury or anyone else.

Otherwise how to discover the most correct narrative here-and-now of what happened there-and-then requires a method—an error free way to find out—the rules of evidence. The trial judge pays close attention to the evidence presented, as do the contesting attorneys, to avoid obvious error. But identifying hearsay, not permitting a leading question, requiring the assurance of a creditable witness concerning the source of material evidence and similar tests are not enough. In addition the prosecutor’s evidence of guilt is subject to the critique of the defense and as a trial progresses the two sides can present inconsistent images of the meaning of the facts. That the narrative now reflects the reality of the actual event is not considered conclusively established until there is a confession or a guilty plea or a jury finding. That judge and lawyers are not considered competent enough or honorable enough to reach this conclusion for themselves is the mystery of the process. Why would the amateur jury be more competent to decide than the pros?

Arguments for and against can be advanced. (1) Danger of a cultural bias and the self (group) interest of an elite group of professionals, (2) Small numbers involved (one judge, two lawyers) increases chance of an ego-centric reading beyond common sense, (3) Public positions subject these authorities to subtle lobbying. And (4) over time and through political contention and philosophical argument the protection of the individual and his rights and liberties against arbitrary judgments of unreliable and ideologically biased courts has become more acceptable.

The rationales are unending and a choice has to be made. We have examples of the seeking for truth by alternate ways–the research project, the legislative investigation. There have been theological tests—withstanding a physical ordeal proves innocence by divine intervention or champions fight and the winner claims right by might.  Test by signs (and their interpretation). Test by rhetorical argument–the manipulation of sentimental symbols– (the lawyer’s summing up fits here.). Decision by the toss of a coin. If the perfect witness is not present we have a problem. The jury is another possible method. .

With the jury trial there is a division of function. The so-called investigation leads to a conflict of purpose. The prosecution argues for guilt which the defense parries.  The decision is linked to an outcome that is critically important to real individuals. These people do not want to know what happened (the defendant knows better than anyone else.) They want a particular outcome. So what is enacted is part research data, part rhetorical speech, part fabrication, part manipulation of method.

The jury is passive during the trial. Members ask no questions, suggest no additional lines of investigation, offer no alternate theories to explain evidence. They receive the jumble of facts and counters, of instruction on the law and on the meaning of terms and are asked to make a choice among limited options. The people are boxed by the cadre/agents.

But even more, the pressure of the problematic decision by the jury is used by the agents to force a plea. No one can be sure which way the jury will jump. The prosecution and defense engage in informal negotiation toward what is knows as a plea bargain. This dialogue in itself implies a recognition that a contravention of the law has occurred in which the defendant has been involved. What the crime is and what the penalty will be is what is traded.  An admission of guilt for some mythical act that imposes the agreed punishment. The. drift away from the reality of the incident is transparent The only issue is the finally accepted punishment.The judge is party to the fiction, he is kept informed and has final approval of the consummated bargain. The jury doesn’t act but with its presence threatens to act.

Contrast this with the compulsive concern to keep the jury focused on the pure and valid facts.. The judge gives a lot of time and attention to instructing the jury on the applicable law, on the meaning of terms, on appropriate procedures. They are held to a higher duty, to the actual reality of the incident. They have no room for compromise (though in our last post we found that such bargains can be struck).

My impression is that the judge and the lawyers in the majority of cases have informally decided on the nature of the reality (what happened) and the actual degree of involvement by the defendant. This is an open secret. If the prosecuting attorney and the judge were to officially conclude that the defendant is not guilty or that the charges should be amended they are morally and legally required to act to prevent an injustice. But some are so eager to win a reputation of being a tiger for law and order and for their activism against crime that they are either blind to the reality or have a criminal character themselves and commit a criminal injustice with the power of their offices. On the other hand the defense attorney hides his knowledge of the actual involvement of his client. He has no concern for the justice due to the victims or to the larger community. Meanwhile the guilty defendant struggles to maintain his innocence. And in his defense sounds exactly the same as the truly not guilty.

This is a very formal institutionalized system with ritual elements (the oaths, the costume for the judge–and in some societies for the lawyers as well–the architecture of the courtroom and the courthouse, the rising of all present on the entrance of the judge.) The form emerges from the traditions of our civilization. Our current way is highly professionalized and specialized. The use of the jury is an archaic anomaly. It is a throwback to the mobilization of the entire community (or parts determined by age, gender and social identity). The active citizens are called together to make a decision. With the mass society this calling together is physically impossible and it is replaced by either elected or appointed or randomly called segments—the legislatures are elected or appointed, the military are volunteers  or drafted, the jury called to judicial duty by lottery or rotation. (We’ll write about mobilization in a future post.)

So the attempt to describe the trial jury leads to Parsonian-like dilemmas which are built into the action system (These dilemmas can also be viewed as the two poles that define a social dimension)…

*The two kinds of mobilization—the professional and the amateur. Called by training and ambition and employment versus called by lottery. The trend definitely is away from the self-governing group toward the rule of the specialist cadre.  The jury is a remnant of the long past.

*The two kinds of history—the true and the fictional. In the service of maintaining a particular social order the search for truth gives way to the bargain based on fiction. The expediency of  assuring punishment versus the purity of the search for, and abiding with, the true fact.