Anyone who has served on a jury or tried a case knows that the American jury system is pretty stupid. Don’t get us wrong — it is absolutely without a doubt a sacred institution designed to ensure justice better than any other system we know of — but it’s still stupid.
Think about it — You take a dozen people who probably don’t practice criminal law. You tell them they’re going to be deciding someone’s guilt or innocence, and then you shove a few weeks of testimony and exhibits in front of them. But you don’t tell them what the law is — what they’ll be applying — until after all the evidence is over. You don’t tell them what they should have been listening for, until it’s too late. You don’t let them ask questions of witnesses to clarify points they didn’t get. When everything’s over, and it’s finally time to tell them the law they’re going to apply, you simply read it to them for a few hours. You don’t let them take notes. You don’t give them a copy of the law you just read them. They are presumed to have memorized and applied correctly the intricate flowchart of criminal elements for each crime, definitions of legal jargon, and all the other attendant instructions. If they ask for clarification later, you simply read the instruction to them again.
And that’s not even half of it. On top of all that, you make them do the judge’s job, in addition to their own.
The jury’s job is to make findings of fact. The judge’s job is to make rulings of law. The jury’s job is very important — their job is to decide on the official version of the facts. The court cannot do anything until the facts are established, and then it can take the necessary action — whether it be punishing the guilty or freeing the not guilty. But the determination of “guilty” or “not guilty” is a legal conclusion reached by analyzing the official version of the facts. And in our system, we tell the jury to make that ruling of law.
In fact, those who were not in that jury room will only ever see the ultimate legal conclusion, and will only be able to speculate as to what the actual facts were on which that conclusion was based. Based on studies of jurors (and anecdotal discussions after many trials), it appears that a large number of verdicts are based on flawed application of the law to the facts — or even without any such application whatsoever. People are found guilty of crimes where jurors did not think essential elements had been proven beyond a reasonable doubt. People are found not guilty of crimes where the jurors were actually persuaded of the necessary elements. Jurors hang, or screw up, because they don’t understand what they’re doing.
The system is stupid, and almost guarantees injustice.
Fortunately, the problems are easy to fix.
One simple fix, which resolves quite a few of these inanities, would involve little more than changing the verdict sheet.
When deliberating, a jury is given a verdict sheet to fill out. Basically, it lists each of the crimes charged in the indictment (or added later as “lesser-included offenses” when the prosecution realized it was going to lose the counts it actually charged). For each count listed, the jury checks off whether the defendant is guilty or not guilty of that offense. In an attempt to clarify to the jury what they are deciding, some jurisdictions have them check off whether the crime was “proven” or “not proven,” but it’s still the same thing.
The jury had no guidance, beyond orally recited instructions after the conclusion of the case, on how to reach the conclusion of guilt or non-guilt. The jury did not have a written list of the elements necessary to establish each crime. Nobody will ever know if they really thought each and every element was proven, or if four out of five was close enough. Nobody will ever know if they applied the right elements to each crime. The jurors will have to wrack their brains to remember the full list of elements the prosecution needed to prove, and try to figure out if the evidence at trial actually proved it beyond a reasonable doubt. Their job of fact-finding is already too hard, forget about the judicial role of concluding whether the facts equal guilt.
But what if the verdict sheet itself simply listed all the elements that the prosecution had to prove? And simply asked whether each particular fact had been proven or not proven beyond a reasonable doubt?
The elements wouldn’t even have to be grouped by charge. An element common to multiple charges would only have to be listed once.
The jury would not have to strain to remember what the judge read to them two hours and fourteen minutes into a three-hour instruction. The elements they would be deciding would be right there in front of them. All they’d have to do is figure out whether each one had been proven beyond a reasonable doubt.
Once the jury had reached a unanimous verdict as to each element, the judge would then be tasked with drawing the appropriate legal conclusions from the official facts.
Gone would be the freakshow of internally-inconsistent verdicts. Gone would be the concerns of verdicts not matching what the jurors actually believed. Gone would be the need to speculate — at sentencing, on appeal — as to what the jurors did and did not believe. Most importantly, gone would be the jurors’ struggle to do their job, leaving only the good and proper struggle of figuring out whether the prosecution had done its job.
If we wanted to be really nice to our jurors, we might even give them these verdict sheets at the outset, or a modified version without the “proven” and “not proven” boxes, so they’d know what they were supposed to have been listening for throughout all that testimony.
And you know what, if the lame-ass prosecutor still wants his lesser-included offenses, then they’re still right there in the element list. They can still salvage their overcharged Murder 1 with a disorderly conduct, if need be.
Isn’t this something we should be doing?
Is there any reason not to?
So it’s only lame-ass prosecutors who want their lesser-included considered? Just checking, Nathans.
No, if the defendant wants it as an alternative, then it’s perfectly appropriate. It’s his own exposure. But if the prosecution overcharged its case and is now panicking at trial to salvage something out of nothing, then I’ve always thought that to be wrong. And if that’s not strange enough, I also think it’s wrong for them to go the other way and charge all the lesser-includeds in the indictment. I know the real world is different, but that’s how I think it should be.