The Jury Trial in Criminal Justice

The Jury Trial in Criminal Justice

Edited by

Douglas D. Koski

Foreword by

Michael J. Saks

Carolina Academic PressDurham, North Carolina

Copyright © 2003 Douglas D. KoskiAll Rights Reserved

ISBN 0-89089-349-7LCCN 2002117310

Carolina Academic Press700 Kent Street

Durham, NC 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

This book is dedicated to my wife Hui-Yu L. KoskiAnd to my parents Arthur E. and Sue Rose Koski

As soon as you find you can do something, do something else.

—Rudyard Kipling

Contents

Foreword xiEditor’s Preface xiiiAcknowledgments xxv

Chapter One The Declining Importance of the Jury Trial and the Plea Bargaining Problem 3

IntroductionDouglas D. Koski 3

On the Myth of Written Constitutions:The Disappearance of Criminal Jury TrialJohn H. Langbein 6

Happy New Year— You’re a JurorIvor Kraft 11

Bargaining in the Shadow of the Hammer:The Trial Penalty in the USACandace McCoy 23

Juries: The Great American MythGerry Spence 30

Suggested Readings 38

Chapter Two The Defense Counsel: The Duty of Zealous Representation and the “Usurpation” Problem 43

IntroductionDouglas D. Koski 44

Defending the DefendersAlan M. Dershowitz 47

The Practice of Law As a Confidence GameAbraham S. Blumberg 59

vii

But How Can You Sleep Nights?Lisa J. McIntyre 70

Address to Prisoners in Cook County Jail, 1902Clarence Darrow 83

Suggested Readings 92

Chapter Three The Prosecutor: The Duty to Seek Justice and the Abuse of Discretion Problem 95

IntroductionDouglas D. Koski 95

The Decision to ProsecuteGeorge F. Cole 99

The Prosecutor’s DomainWilliam F. McDonald 110

A Moral Standard for the Prosecutor’s Exercise of the Charging DiscretionBennett L. Gershman 123

Prosecutors As Crime Creators: The Case of Prenatal Drug UseKaren J. Maschke 137

Suggested Readings 145

Chapter Four The Victim: The Nature of Victimization and the “Victim Legitimacy” Problem 149

Introduction: The Social Framework of VictimizationDouglas D. Koski 150

The Ideal VictimNils Christie 154

Placebo Justice: Victim Recommendations and OffenderSentences in Sexual Assault CasesAnthony Walsh 161

The Victim-Offender Relationship in ConvictedHomicide Cases: 1960–1984John D. Hewitt 168

Repeat Victimization among Adolescents and Young AdultsJanet L. Lauritsen & Kenna F. Davis Quinet 177

viii Contents

The Criminal Among UsWillie James Jennings 183

The Vilification of the Crime ProblemFrank J. Weed 186

Suggested Readings 197

Chapter Five Jury Selection and the “Biased Juror Problem” 203

IntroductionDouglas D. Koski 203

The Socialization of Jurors: The Voir Dire As a Rite of PassageRobert W. Balch, Curt Taylor Griffiths,Edwin L. Hall & L. Thomas Winfree 206

Juror Honesty during the Voir DireRichard Seltzer, Mark A. Venuti & Grace M. Lopes 214

Social Psychology in CourtMichael J. Saks & Reid Hastie 221

Scientific Jury Selection: What Social Scientists Know and Do Not KnowShari Seidman Diamond 232

Jury Selection: A Social Scientific AnalysisDouglas D. Koski 242

Suggested Readings 260

Chapter Six The Story Model of Jury Decision-making and the “Jury Nullification Problem” 269

Introduction: Jury Decision-making and Its AssessmentDouglas D. Koski 269

Memory for Pragmatic Implications from Courtroom TestimonyRichard J. Harris, R. Ross Teske & Martha J. Ginns 277

Storytelling in the CourtroomW. Lance Bennett & Martha S. Feldman 282

The Story Model for Juror Decision MakingNancy Pennington & Reid Hastie 292

Some Steps between Attitudes and VerdictsPhoebe C. Ellsworth 301

Contents ix

Effects of Jurors’ Identification with the Victim Depends onLikelihood of VictimizationMartin F. Kaplan & Lynn E. Miller 316

Jury Nullification in the United States of America:A Brief History and 21st Century ConceptionDouglas D. Koski & Hui-Yu Lee 322

Suggested Readings 333

Index 337

x Contents

xi

Foreword

The ju ry trial is one of the most vi s i bl e , con ten ti o u s , and misu n ders tood ofthe va rious com pon ents of our criminal ju s ti ce sys tem . It is fra u ght with iron i e s .Al t h o u gh it gives a major role to citi zens them s elves in deciding wh et h er thegovern m en t’s evi den ce su pports a finding of guilt in the case of a pers onch a r ged with com m i t ting a cri m e , the public is not infrequ en t ly cri tical of t h edec i s i ons made by these ord i n a ry citi zens call ed upon to be the repre s en t a tive sof the com mu n i ty. In su ch cases, the public is in an important sense being cri t-ical of i t s el f and its own role in these cases. Yet attracting su ch cri ticism is on eof the very functi ons of the ju ry: to act as a ligh tning rod wh i ch draws publ i cd i s a pproval aw ay from the law and the ju d ge s , and dissipates it thro u gh a tem-pora ry and anonymous body of c i ti zens back into the com mu n i ty from wh i cht h ey came. If a key to the ef fectiveness of the ju ry is that it is drawn , dem o-c ra ti c a lly, f rom all of u s , that ef fectiveness is impaired by the many citi zens wh oprefer to avoid the obl i ga ti on to serve as ju rors . Yet , a f ter su ch servi ce , t h ey typ-i c a lly say that it was the most sign i ficant ex peri en ce of t h eir lives as citi zens ofa dem oc rac y, far more meaningful to them than vo ting in el ecti on s .

Th o u gh it is wi dely assu m ed that ju rors are placed under a spell cast bylawyers who are masters of manipulation, the trial process actually filters outthe most manipulative and effective of psychological methods of influence—m a ny of wh i ch are in com m on use thro u gh o ut soc i ety, but not in co u rt s ,where the trial process is refined into the most information bound of all pub-lic dec i s i on-making foru m s . Ju rors are almost en ti rely exclu ded from a role ins en ten c i n g— the one major excepti on being wh en the ch oi ce of s en ten ce isbetween life and death. Then juries are considered indispensable. The jury incriminal trials is one of the most deeply rooted and highly valued of our con-stitutional rights, and yet the jury trial is becoming an endangered specie.

These are but a few of criminal jury t rial’s many ironies.The Jury Trial in Criminal Justice offers an exploration of some of the most

troubling of the issues of the jury trial in the criminal justice process. Amongthese are the gradual disappearance of juries and the dominance of plea bar-gaining, the morally complex role of defense counsel, the high and still rising

xii Foreword

powers of d i s c reti on by pro s ec utors , vi ctims in the criminal ju s ti ce proce s s ,and doubts about the jurors themselves.

The ex p l ora ti on into these qu e s ti ons is guided part ly by Do u glas Ko s k i ’si n trodu cti ons to each major issue and then by the co ll ecti on of re ad i n gs hehas authored or edited to illuminate each topic. Being a sociologist as well asan attorney, Dr. Koski has tried more than 150 criminal jury trials to verdict.So he sees the ju ry trial from the pers pective of a re s e a rch er and scholar aswell as that of trial lawyer. And he has produced a book that is theoretical atthe same time that it reflects down-to-earth daily practice. Among the writ-ings in the collection are works that provide both classic views and fresh per-spectives. Some are by incisive scholars, others by iconoclastic practitioners.All are informed and insightful. Readers of The Jury Trial in Criminal Justicewi ll gain an understanding of the ju ry and the criminal ju s ti ce process thatwill take them far beyond the erroneous assumptions and cliches that perme-ate our popular culture.

Michael J. SaksArizona State University

College of LawDepartment of Psychology

xiii

* Copyri ght 2003 by Do u glas D. Koski and the Na ti onal Cen ter for the Adva n ced Stu dyof Social Force s , N C A S S F @ AO L . C O M . No te , t h ro u gh o ut this book referen ce is made tova rious aut h ors and their work s ; proper sch o l a rly citati ons are given among the “Su gge s tedReadings” at the end of each chapter. References for the Preface are included with thosefor Chapter 1.

Editor’s Preface

An Overview of theCriminal Trial Process*

A qu e s ti on was asked of you ju rors by the pro s ec utors as to wh et h eryou bel i eved in “l egal freedom .” For God ’s sake , tell me what is “l ega lf reedom .” It is as tri cky a catch - ph rase as has ever been used to en-s l ave men . The men who were roa s ted to death by the Spanish In-qu i s i ti on had “l egal freedom .” That is, t h ey had all the freedom thatthe law gave them . The old men and the old wom en of Am erica wh owere hung for wi tch c raft en j oyed “l egal freedom .” No man who everk n ew the meaning of that word “f reedom” ever attach ed to it theword “l ega l .” Men in the past who had their tongues pull ed out , wh owere pierced with red-hot iron s , who were boi l ed in oi l , who wereti ed to stake s , who were bent on the rack and tortu red until theyd i ed , who had every limb torn from them , who had their nailsp u ll ed out and splinters run into their flesh, a ll were en j oying “l ega lf reedom .”

—Clarence Darrow

I will fight for the right to live in freedom.

—Sir Paul McCartney

xiv Editor’s Preface

Ju ry trials are an excell ent illu s tra ti on of that to wh i ch Profe s s or Ja m e sShort, past president of the American Society of Criminology has referred asthe “level of explanation” problem.

At their most basic, they can be characterized simplistically and as largelysymbolic. While they receive by far the most attention of all activities in thec riminal co u rt s , this atten ti on is largely unde s erved because so few of the casesbrought to court by police and prosecutors are actually tried.

Th ey serve no re a l , l a s ting and important functi on in most co u rthouses otherthan the amu s em ent of co u rthouse pers on n el —an occ a s i onal break in the ho-hum of d a i ly co u rthouse work . If you need us, you know wh ere to find us—in the passages and corri dors and back-stair law yers’ l o u n ges and po ker room sfor wh i ch the grand co u rtrooms serve as cover. If trials serve any functi on wh a t-ever, it is repre s en t a ti on a l : give us your we a ke s t , poore s t , most publ i cly re s en tedand shod d i ly repre s en ted , g u i l ti e s t ; and most down trod den , c ra z i e s t , bl acke s tand unsym p a t h etic defen d a n t , and we wi ll give him a ju ry tri a l . Af ter that, wewi ll give him a sen ten ce that wi ll set Pon tius Pilate ro lling in his grave .

On the next level, trials reveal something more important about the crim-inal ju s ti ce sys tem . Some of the more serious cases, o ut of proporti on to thei rnu m ber, go to tri a l . Th ey serve a ped a gogi c a l , te ach i n g - l e a rning functi on :should any of you middl e - m a n a ger types con s i der becoming wei rdly en i g-m a tic and vi c i o u s ly pedoph i l i ac , think again because here in Am eri c a , we wi lluncloak you, jacket-and-tie you and gleefully convict you, too.

Trials do however, “s et the ru l e s” for a gre a ter nu m ber of pers on s . Po l i cel e a rn who they are and are not to arre s t , pro s ec utors learn wh en and wh ennot to bring charges, and the law-abiding middle class are deterred even fur-ther from any criminal activity they may have considered (if only briefly dur-ing adolescence), and derive the added benefit of using someone else’s arrestand prosecution as an object lesson for their children.

Defense lawyers can also utilize the most recent television conviction andsentence as leverage against their clients: “This is what a jury can do to you.Be lucky I am able to get you probation.”

These acti ons and dec i s i on s , in both a theoreti c a l - ac ademic sense and int h eir most practi c a l , s tem from ex pect a ti ons abo ut what a ju ry might do inthe event a matter actually “goes to a jury.”

* * *

Ma ny peop l e , wh en they think of a “ ju ry tri a l ,” think the first step is the se-l ecti on of the ju ry. Even more think that the trial begins with the law yers’opening statem en t s , because the ju ry sel ecti on proce s s , k n own as the voir dire,cannot be tel evi s ed . And while criminal ju s ti ce tex tbooks of ten refer to the po-

Editor’s Preface xv

lice and prosecutors as the “gatekeepers” of the criminal courts, neither theyn or anyone else who works in or near a co u rthouse makes the dec i s i onwh et h er a given case wi ll re ach a co u rtroom . In law yer ja r gon , the most “prox-i m a te cause” of a ju ry trial is the vi cti m, a fact that — e s pec i a lly in we a kcases— juries may hesitate to overlook.

This is because before there can be a tri a l , t h ere mu s t —“ vi cti m l e s s” c ri m e saside—be a victim, and a victim willing to assume, as Erving Goffman mayh ave put it, that “pre s en t a ti onal sel f .” Wh en we hear, “The pe ace keeping func-tion of the police,” this is an oblique yet accurate reference to the role the po-lice usually play. Most crime is minor, most victims and offenders know oneanother and in many cases, the most discretionary (and confusing) feature ofthe police function is to determine who the victim is. Just as important, there s ponding of ficers must determine wh et h er at some later poi n t , the vi cti mof choice will clean up well enough to convincingly play the part.

The array of disheveled actors present at “the crime scene” by the time thepo l i ce arrive usu a lly con s ti tutes the pool from wh i ch the po l i ce may ch oo s evi ctim(s) and of fen der ( s ) . Most of ten , no arrest is made at all but a disputesettled—or at least settled for now.

If an arrest is made, a variety of proceedings must happen before a jury ischosen or an opening statement is made. The most important of these is thepreliminary hearing (or, in a small percentage of cases, a grand jury determi-nation). The preliminary hearing is a sort of mini-trial at which the victim’ste s ti m ony in of ten nece s s a ry and for wh i ch the vi ctim may or may not appe a r.If the vi ctim does appe a r, a ju d ge must make a finding wh et h er (1) a cri m ewas committed according to the statutory provision under which the defen-dant is charged; and (2) the defendant was the person who committed it.

If a judge so determines, the defendant is said to be “bound over” for trial,he or she is ar raigned— given an opportunity to hear the formal charges anden ter a plea, u su a lly a plea of “not guilty ” pending trial or dispo s i ti on wi t h-out trial —and bail is set or continued. Since the defendant is usually penni-less and thus legally indigent, a public defender or other assigned counsel isappointed.

If the victim fails to appear at the preliminary hearing, the defendant getsan immediate “walk,” and the case becomes one of thousands each year thatwill have suffered “case attrition” or “mortality.”

If this defendant is among the few that want a trial in favor of “b a r gain ju s-tice” (a plea bargain), the case is set for trial, and the next step will be the se-l ecti on of ju rors . This sel ecti on process begins with a pool of people call ed theven i re who are ch o s en from sources su ch as the ph one boo k , vo ter regi s tra-tion lists, department of motor vehicle lists and the like.

xvi Editor’s Preface

In - co u rt sel ecti on from this pool cen ters on the abi l i ty, according to theself-report of the prospective jurors, to “remain fair and impartial” through-o ut the tri a l — a ju d gm ent almost impo s s i bly proph eti c , s i n ce the panel ofpo s s i ble ju rors has yet to hear a word abo ut “p a t tern bu rn marks and spira lfractures” or alternatively, the “beating the police put on the defendant.”

Q u e s ti oning may be by the ju d ge , the trial law yers or bo t h . E ach side hasa limited nu m ber of “perem pto ry ch a ll en ges (or stri ke s ) ,” wh i ch may be usedto rid the panel of pers ons for any re a s on other than race , gen der or othersu s pect cl a s s i f i c a ti on . Both the pro s ec uti on and defense have an unlimitednu m ber of “ch a ll en ges (or stri kes) for cause,” wh i ch are exerc i s ed wh en apro s pective ju ror ad m i t s—or is goaded into ad m i t ti n g—bi a s , bi go try or par-ti a l i ty.

At the start of the trial proper, each attorney may make an opening state-m en t . The pro s ec utor then pre s ents evi den ce , pri m a ri ly thro u gh the te s ti m onyof wi tnesses and doc u m en t a ry or other evi den ce or ex h i bi t s ; the defense at-torn ey may cro s s - examine the state’s wi tn e s s e s . Af ter the pro s ec uti on has pre-s en ted its case, the defendant may or may not of fer one in defen s e . The de-fendant has the absolute ri ght not to te s ti f y, but if he doe s , the state mayquestion him about prior convictions and in some cases, “bad acts” that didnot result in a conviction. Because criminal defendants generally make poorwitnesses and sometimes use jargon difficult for middle Americans to under-s t a n d , t h ey of ten do not te s tify rega rdless of a ny record of convi cti on ; a n drarely do they offer character witnesses because if they do, the prosecutor canof fer evi den ce of a ny act(s) tending to dem on s tra te bad ch a racter—wh i ch areoften numerous and substantial.

Th ro u gh o ut this proce s s , the attorn eys may make moti ons and obj ect toqu e s ti ons or to the introdu cti on of o t h er evi den ce , and the ju d ge rules onthese matters. The evidentiary portion of the trial is over, and the attorneysfor each side give closing arguments.

Af ter the closing argumen t s , the ju d ge instru cts the ju ry on the legal ru l e s( “the law”) perti n ent to their verd i ct . These are call ed “ ju d i c i a l ” or more prop-erly, “ ju ry instru cti on s ,” and the ju ry then “reti re s” to discuss the case—or anyo t h er matter rel evant or irrel evant to it—and to re ach a verd i ct , wh i ch in mosts t a tes must be unanimous and by twelve pers on s . The verd i ct is announced ;a bo ut half the ti m e , this verd i ct is “g u i l ty ” and a series of almost univers a lly un-su ccessful appeals wi ll en su e : the defendant who vows to “Ta ke my case to theUn i ted States Su preme Co u rt” has far less than a one percent ch a n ce of doi n gs o. Som etimes the ju ry re aches an irretri eva ble impasse, c a ll ed a “hung ju ry.”In this even t , the ju d ge decl a res a mistrial and the en ti re process may begi na n ew, depending mainly on how aggre s s ive or en er getic the pro s ec utor is.

Editor’s Preface xvii

This is the pri m er vers i on of the criminal trial proce s s . Because its nu a n ce sa re som ething abo ut wh i ch many media law yers are ign ora n t , the vi ewi n gp u blic is reg u l a rly ex po s ed to tel evi s ed deb a tes that cen ter on issues su ch aswhy do u ble jeop a rdy doe s n’t app ly wh en ju ries hang; why defendants go “s co t -f ree” wh en vi ctims fail to appear in co u rt ; a n d , i f the vi ctim is fem a l e , wh et h ercase dismissals might have som ething to do with the “p a tri a rch a l ” n a tu re ofAm erican soc i ety—wi t h o ut pause to con s i der that the Un i ted States is by anymeasure among the least patriarchal societies known to world history. If them edia law yer is a defense advoc a te , she may complain abo ut the ease by wh i chju ries hear referen ces to the defen d a n t’s nasty rep ut a ti on for doing things hav-ing nothing directly to do with the charged crime.

Beyond this, t h ere are to u gh er qu e s ti on s , a bo ut wh i ch this vo lume attem pt sto provide some explanation.

* * *

This vo lume recogn i zes that the ju ry and the co u rtroom pers on n el that su r-round it are both su bc u l tu re s ; that su bc u l tu res devel op shared unders t a n d-i n gs or ru l e s ; and that the ju ry, or, i f the case is dispo s ed wi t h o ut on e , t h e“co u rtroom work gro u p” must for ge a path to a de s i red re su l t , or outcom e .However, the rules by which juries abide are both more, and less constrainedthan those of the courtroom workgroup are.

More , because ju ries do not have all the inform a ti on nece s s a ry to con s tru cta com p l ete and acc u ra te account of a historical even t . As Blu m berg (C h a p-ter 2) note s , before trial begins the ju d ge and attorn eys , opera ting “almost asif a group,” may have disallowed some evidence. Evidentiary rules about thea ut h en ti c a ti on of doc u m en t s , the ad m i s s i bi l i ty of op i n i on evi den ce , privi l egedcom mu n i c a ti on s , h e a rs ay and the like furt h er delimit what the ju ry may hear.The story upon wh i ch the ju ry bases its dec i s i on , t h erefore , is not the samestory to which the courtroom workgroup is privy.

In ef fect , the co u rtroom work group makes an adva n ce determ i n a ti ona bo ut that wh i ch the ju ry wi ll hear. To para ph rase Cl i f ford Geert z , wh a teverit (the work group) is after, it cert a i n ly isn’t the “ whole truth and nothing butthe trut h” ; i f ju d ge s , i n cluding those on appell a te co u rts are seeking obj ec-tive recon s tru cti ons of past even t s , t h ere must su rely be bet ter ways to fin do ut than this. To su ggest that ju d ge s , ju ri e s , the public and the media do nota lw ays agree on the outcome is to overs t a te the obvi o u s ; h ad the ju ry knowneverything it needed to make an acc u ra te assessmen t , t h ere prob a bly wo u l dnot have been a tri a l . Som etimes they do have all the fact s ; in one su ch casea bewi l dered ju ror is said to have rem a rked , “I am won dering why we areh ere .”

xviii Editor’s Preface

No judge in America, however, is going to inform this juror, “Ma’am, youa re here to help us diffuse re s pon s i bi l i ty for a com p l ex social probl em to wh i cht h ere is no real soluti on . Please understand that the criminal law is som et h i n gof a vast wastebasket, filled with of all kinds of stuff that other social institu-ti on s —govern m en t a l , f a m i ly, rel i gi o u s—h ave been unable to rem edy. Ad dto this, the criminal justice system often mixes up legal questions with large-scale social problems: religious, socioeconomic, racial; the nature and extentof a woman’s property interest in her body; cancer patients’ rights to smokemarijuana and voters’ rights to decriminalize it.

“Further, victims often do not report, and those that do complain may bethe least cred i t a bl e . The pro s ec utor may overch a r ge a defen d a n t , h oping toi m prove her bargaining po s i ti on . This in tu rn swells the bargaining power andi n flu en ce the defense law yer has over his cl i en t , wh i ch is important bec a u s el on g, d rawn out trials are co s t ly affairs ; b ack-stair wi re - fixing (C h a pters 2and 3) is far more profitable.

“ Pro s ec utors som eti m e s , h owever, erron eo u s ly overch a r ge defendants wh oa re the least culpabl e , and underch a r ge those de s erving of the most dra s ti cs a n cti ons ava i l a ble under the law. We hope it all washes out in the en d , a n dyou are here to help us make it work . Keep in mind we actu a lly care less wh a tyour verd i ct is than the fact you are able to re ach on e . It sounds perverse Ik n ow, but it makes sense to us, we are men and wom en with let ters in thel aw. So sorry to have inconven i en ced yo u , thank you Ma’ a m , so very mu ch .”

Ju ries are ad d i ti on a lly more con s tra i n ed in their dec i s i onmaking bec a u s et h ey must dec i de the case using cri teria (ju ry instru cti ons) wri t ten in wh a tCl a ren ce Darrow call ed “a m biguous Ch i n e s e ,” not the unwri t ten inform a llya pp l i ed code that the ju d ge and attorn eys would use if b a r gain ju s ti ce wereen ga ged . And ju ry verd i cts must at least sound in re a s on a ble do u bt , even ifdecided on some other basis.

Even when we can watch jury decisionmaking, we do not always know if aju ror is acting in accord a n ce with re a s on a ble do u bt , or simply arti c u l a ting hisor her sen ti m ents in those term s . Th erefore , wh en su gge s ted that ju ry verd i ct sdepend heavi ly on con s i dera ti ons of “ vi ctim legi ti m ac y ” (C h a pter 4) a n d re a-sonable doubt (Chapter 6), that is precisely what is meant. Sometimes it isimpossible to tell the difference.

But ju ries are also less con s tra i n ed in their dec i s i on m a k i n g, for many of t h esame re a s on s . Si n ce they get incom p l ete inform a ti on told in discon n ected ,qu e s ti on and answer form du ring a series of du ll “ex a m i n a ti on s ,” t h ey canrec re a te the past using inferen ce s — h owever ill ogical or far- fetch ed — a n da pp ly a provincial defin i ti on of the re a s on a ble do u bt standard , one spec i fic totheir worldviews and sometimes queer perceptions of the case.

Editor’s Preface xix

Irrespective of the “completeness” of the story given them, they are rarelyin a po s i ti on to direct ly perceive the events in qu e s ti on . Tru e , s ome crimes arevideotaped but seldom; most trials are disputes about events that took placeout of the minds and sight of the police.

Ju rors are therefore free to sel ect among the evi den ce , and under theva g u ely defin ed re a s on a ble do u bt standard app ly the law any way they ch oo s e .They can also use general “worldview” knowledge (“Los Angeles Police detec-tives lie”) in preferen ce to case-spec i fic knowl ed ge (“The defen d a n t’s DNA wason the bl oody dagger ” ) . Moreover, t h eir verd i ct may rest on some “trivial par-ti c u l a r ”( Ko s k i , 2 0 0 2 )—a high ly mem ora ble but meaningless evi den ti a ry ti d-bit: “The blood-shrunken gloves didn’t fit.”

* * *

How effectively do trials operate to produce correct judgments about guiltor innocence? The concept of “correctness” in jury judgment is slippery one.In every case, there is a factual reality and a set of applicable legal rules. Oc-c a s i on a lly, the law and the facts com bine in su ch a way that they leave the “cor-rect” verdict uncertain. However, in most cases, any objective decisionmakerwould invariably reach the correct verdict.

As Profe s s or Lawren ce Baum informs us, dec i s i onmaking in trials is de-pen dent on the inform a ti on the ju ry get s , and aga i n , this is of ten both in-complete and inaccurate.

In co m pl ete info rm a tion is a wi de s pre ad probl em . In some cases, i m port a n tevi den ce may not ex i s t ; t h ere may be for instance , no wi tnesses to the all egedc ri m e . Bu r gl a ry is a good ex a m p l e : prec i s ely for the re a s on there are no wi t-n e s s e s , bu r gl a rs prefer to do their work wh en nobody is at hom e . Wi tnesses orphysical evi den ce that do exist may go undiscovered , or occ a s i on a lly ru l ed in-ad m i s s i ble because the po l i ce cannot dem on s tra te a proper “chain of c u s tody.”

Wi tn e s s e s , the pri m a ry sources of evi den ce in most cases, i llu s tra te too theproblem of inaccurate information. People are imperfect in their capacities toperceive , rec a ll and rel a te what they have seen and heard . Iden ti fic a ti on of su s-pects is espec i a lly prone to error, p a rti c u l a rly cro s s - race iden ti f i c a ti on andmost of all, white-on-black cross-race identification. Sociological studies andcommon sense —the person “I could have sworn I recognized” in the super-m a rket—i n form us that fall i ble humans make mistakes wh en iden ti f ying per-sons they have seen, even if minutes earlier.

A jury is therefore also disabled by wrong information. Processing that in-formation to reach a verdict adds further difficulties, the topic of Chapter 6.Af ter all , ju rors are wi tnesses not to re a l - world events but to tri a l s . Du ring tri-als, sworn witnesses to real-world events testify about those events, but again

xx Editor’s Preface

these wi tn e s s e s’ reco ll ecti ons may be incom p l ete , i n acc u ra te and/or com pri s edof a patchwork of h a l f - truths and distorti on s—s om etimes well - reh e a rs ed lies,com bi n ed with poorly pre s en ted vers i ons of the trut h—or some com bi n a ti onthereof.

The ju ry must also analy ze the evi den ce to ch oose the most cred i ble ver-sion of the facts. In some trials, this process is easy, because there is only onecredible version—the prosecutor’s. The defendant, according to one correc-tional administrator, is “not just a loser, but a double loser who failed even atcrime,” who then confessed on videotape after waiving his Fifth Amendmentright against compulsory self-incrimination (in common parlance, the “rightto remain silen t” ) ; and who at trial repeats the same hopel e s s ly inculpatorys tory— a ri ght given him by the US Su preme Co u rt under the eu ph em i s ti c“right to self-representation.”

But in trials wh ere two (or more) interpret a ti ons are po s s i bl e , the ch oi ce ism ore diffic u l t , e s pec i a lly wh en on ly the of fen der and the vi ctim te s tify and theygive com peting acco u n t s . Th ey look and beh ave similarly, s peak the same di-a l ect , l ive in the same nei gh borh ood and atten ded the same sch oo l . If one ism ora lly bankru pt or fin a n c i a lly fit , prob a bly so is the other. Having revi ewedthe rel evant re s e a rch , one trial re s e a rch er rem a rked , “ Dec i s i ons abo ut wh et h era statem ent is the truth or a lie are made abo ut as well as if one were tossing acoi n .”

Ironically, not only do police officers regress in their ability to differentiatebet ween the truth and decepti on the lon ger they have been on the job and theh i gh er the rank they have earn ed , but simu l t a n eo u s ly grow more con fident intheir ability to make these judgments.

“ Fact s ,” said Ju d ge Jerome Fra n k , “a re guesses,” a truism unders cored by thesu ccess of l aw profe s s or Ba rry Sch eck’s (Ye s h iva Un ivers i ty, Ben jamin Ca rdozoS ch ool of L aw) In n o cen ce Proje ct, wh i ch has sec u red the release of dozens of i n-m a te s , s ome on de a t h’s door, because DNA evi den ce has shown “actual inno-cen ce” wh ere a ju ry—a ga i n , a hasti ly form ed and haph a z a rd su bc u l tu re—pre-vi o u s ly found guilt. For ye a rs I have lectu red my stu dents that the likel i h ood ofwron gful convi cti on grows more , not less prob a ble as crime severi ty incre a s e s .Ju ries are far more wi lling to send an obvi o u s ly guilty ga rden - va ri ety fel on backto the street than they are to acquit a mu l ti p l e - h om i c i de defendant tri ed on scantyevi den ce . Re a s on a ble do u bt is on som ething of a sliding scale, and in very seri-ous cases, it can become a pre su m pti on of guilt the defendant must overcom e .

The final step for the jury is to apply legal rules to the facts, rules that likejigsaw puzzles are frequently missing pieces. Again and most important, it isn ece s s a ry to determine wh et h er the defendant is guilty beyond a re a s on a bl edoubt, but as noted, its meaning is murky. The Supreme Court has approved

Editor’s Preface xxi

at least five classes of definitions, and has even ruled that no definition is re-quired.

As above, a decisionmaking task at this level of ambiguity is fertile groundfor the dep l oym ent of i rrel eva n t , but very mem ora ble “trivial parti c u l a rs .” Ju-ries not only have the power to acquit on the premise that the defendant re-s em bles the forewom a n’s gra n d s on , but som etimes do. “ In a tri a l - advoc ac ylecture,” one prosecutor reported, “we were warned never to ask jurors after atrial how they had re ach ed their verd i ct . Th eir answers would be too dis-turbingly unrelated to the facts.”

The advers a ry sys tem , d i s c u s s ed ac ross all ch a pters , i n flu en ces for good andb ad the pre su m a bly obj ective fact - finding functi on of the ju ry. The de s i re ofpro s ec utors and defense attorn eys to win cases gives them incen tive to smokeo ut rel evant inform a ti on , but on ly if prob a tive to their vi ew of the case. Fa i l-u re to hand over favora ble defense evi den ce is among the most com m ongrounds for disbarm ent of pro s ec utors . Moreover, the “clash bet ween com-peti tors” does nothing to redu ce the diffic u l ty inherent in re aching a correct ver-d i ct , e s pec i a lly if one or both sides are profe s s i on a lly incom petent or “u n der-ze a l o u s”—a m ong the most com m on grounds for disbarm ent of defen s el aw yers .

The de s i re to win can cause a pro s ec utor to ob f u s c a te inform a ti on orwron gf u lly ch a r ge (C h a pter 3) , and the defense can become lazy or overlycozy with the government’s prosecutors (Chapter 2). Even (or especially) inan “ideal” adversary system, both sides are fighting not for truth but to win.

Du ring ju ry sel ecti on (C h a pter 5) , l aw yers work hard to obtain ju rors wh oa re bi a s ed and parti a l , those who wi ll sep a ra tely or toget h er—perhaps thro u gha process of “coa l i ti on form a ti on”—su pport their side . The goal is to cre a te su p-port for the law yer, and most cert a i n ly not to en co u ra ge the ju ry to caref u lly ex-amine the em b a rra s s i n gly damning evi den ce she hopes they wi ll overl oo k .

The advers a ry sys tem also affects the te s ti m ony of wi tn e s s e s , who underAlan M. Ders h owi t z ’s (C h a pter 2) “ Rules of the Ju s ti ce Game” a re en co u r-a ged to lie. Trial ju d ges may con s i der per ju ry inevi t a bl e , an atti tu de som e-times carried with them if later chosen for a seat on a court of appeals.

The advers a ry sys tem is espec i a lly probl em a tic wh en one side has an ad-va n t a ge over the other in the abi l i ty to make its case ef fectively. This adva n t a gecan arise from differen ces in the qu a l i ty of the attorn eys , wh i ch implicates a“deep pocket” i s su e : the party with the most mon ey wi n s . Moreover, the cri m-inal defendant with access to hu ge sums of cash usu a lly does not need a tri a l .In the event he doe s , the frenzy that su rrounds his acquittal serves on ly to taintthe next round of ju rors . His case is used to misrepre s ent the majori ty of c a s e s ,s i n ce mu l ti p ly adva n t a ged criminals are a ra re com m od i ty and as su ch , d i s-

xxii Editor’s Preface

proporti on a tely repre s en ted ac ross the news and news - l i ke med i a . Far moreof ten , the defendant is beyond poor, and the re s o u rces of the state dw a rf h i s .

* * *

In prep a ring this boo k , an important con s i dera ti on was one to wh i ch I havereferred as the “deershining method of social research.” Most students and allprofessors of the social sciences are familiar with this technique. In broadestbrush it consists of the atheoretical manipulation of statistical “evidence.”

The sheer proliferation of academic journal ar ticles that purport to quan-titatively test hypotheses is one manifestation of it, but another and less ob-vious, but more insidious symptom entails “secondary data analysis.”

Here, one or more large datasets collected by someone other than a bookor arti cle aut h or, for some purpose other than that for wh i ch the aut h orwishes to use these data, a re loc a ted . O f ten the sample consists of a high lyatypical but convenient group: 18 to 22 year-old college students.

L i ke LEGO’ S , these nu m bers are plu gged into formulas that are ari t h m eti-c a lly derived in some unspec i fied way by som eone other than the aut h or, to rep-re s ent a theory of s ocial life devel oped by yet another pers on . The nu m bers areen tered into a stati s tical program using a pers onal com p uter and manipulated .

Under one variation of this method, the data are “mined,” that is, variouss t a ti s tical tests are perform ed with no particular theory first adva n ced . De-pending on what if a ny “s t a ti s ti c a lly sign i ficant rel a ti on s h i p s” a re fo u n d —t h eHoly Grail of quantitative manipulation—a “theory,” by definition after-the-fact, is postulated. This theory purports to explain the relationships betweenthe nu m bers , and is passed on to the re ader as though it su pports a soundpremise abo ut important re a l - world social ph en om en a — i n clu d i n g, in thelegal context, human life and its termination.

Being more assured about reported observations than his or her own, thisen ti re process insu res that the re s e a rch er need not ob s erve any ph en om en athat exist in the world. The results are often presented with charts and tables,sometimes figures and diagrams, that are accompanied by too little descrip-tion with which to determine how these charts and tables represent the the-ory, su pport or do not su pport it, and if and to what ex tent the ari t h m etic as-sumptions underlying the statistical formulae used have been violated.

The re ader must therefore accept on their face the “re s e a rch er ’s” con clu-s i ons bec a u s e—l i ke Ba m bi caught in the headl i ghts of a pickup tru ck —he orshe is helpless to disagree with this scien ti fic-sounding of fic i a l - l ooking mora s s .

The reader has been deershined.“I was bemused,” comments Gilbert Geis in the June 2002 The Criminolo -

gi s t, by a “ young job candidate who ra t h er pro u dly procl a i m ed that there were

Editor’s Preface xxiii

enough data sets lying about that he was certain that he could make a careero ut of s econ d a ry analyses of su ch materi a l . He may well be correct , but itseemed to me a dreary way to spend one’s lifespan.”

But as ren own ed soc i o l ogist Lloyd E. Ohlin has po l i tely ob s erved , t h o u gh t-ful ob s erva ti onal re s e a rch has “f a ll en on hard times in this com p uter era” ; t h i sbrand of s ch o l a rship is a sati s f actory placebo for univers i ty com m i t tees be-c a u s e , adds Ch a rles Syke s , it bl oats like ac ademic pabu lum the re sumes of u n i-versity professors and the shelves of the libraries where they work.

Because this kind of a n a lysis is incapable of s c ruti ny, it cannot be disproved ,or falsified. Since falsification of theory is the hallmark of legitimate science,preposterous suppositions about the way the social world operates may holdthe atten ti on of the sch o l a rly com mu n i ty for ye a rs or even dec ade s : o t h ers arepreclu ded from examining not just the input , but the thro u gh p ut (opera-ti on a l i z a ti on and met h odo l ogy) from wh i ch the outp ut (con j ectu re abo ut so-cial life) has been inferred.

The practice also helps to explain why social science is regarded by acade-micians and the public alike as “s of t” s c i en ce , i n c a p a ble of com peting wi t h“real” science— medicine, physics, zoology and the like.

Finally, it is for this reason why “statistics can be used to prove anything,”why “trees cause pollution,” “spanking causes crime,” and “lettuce causes can-cer,” but also why it does not find its way into the pages of this little book.

This book is or ga n i zed as fo ll ows . C h a pter 1 details the most frequ en tm et h od of c riminal case dispo s i ti on , the plea barga i n . C h a pter 2 d i s c u s s e sthe defense functi on , while the pro s ec utor ’s duties are the su bj ect of C h a p-ter 3. C h a pter 4 dem on s tra tes that gen era lly the vi cti m , not the po l i ce orco u rt s , is the “ga te keeper to the criminal ju s ti ce sys tem”—and som etimes areluctant one at that. Chapter 5 discusses jury selection, including the con-troversial practice of “scientific jury selection.” Chapter 6 explores delibera-tion, verdict, and the process and meaning of the two. The volume concludesen co u ra gi n gly, c a uti o u s ly re s pectful of the con text and cultu re of the ju ry tri a l .

Douglas D. Koski, JD, PhD Beijing, P. R. ChinaNew York, NY USA

2003 January

xxv

Acknowledgments

It is a special pleasu re to see this produ ct , i n form ed by so many te ach ersand mentors at the University of Wisconsin, the skilled collective pedagogy atWashington University School of Law, and later by the many trial judges whotaught me that which appears unimportant at trial usually is; and by the so-c i o l ogi s t s , m et h odo l ogists and re s e a rch ers at the Un ivers i ty of Mi s s o u ri andRutgers University Graduate Schools, come full circle. While I cannot blamet h em for errors or om i s s i on s , s pecial apprec i a ti on is ex ten ded to Profe s s ors E.E. LeMasters, Lloyd E. Ohlin, Frank W. Miller, Ronald L. Carlson, David M.Becker, Ronald M. Levin, A. Peter Mutharika, Stephen H. Legomsky, Jules B.Gerard and Edward J. Imwinkelried; Judges Milton Saitz, Robert Saitz, Ken-neth Romines, Arthur Litz, Steve Goldman, Kenneth Weinstock and WilliamCorri ga n ; and Profe s s ors Scott H. Decker, Ka t hy De Loren zo, All en E. Wa g-n er, Ca n d ace Mc Coy, G eor ge L. Kell i n g, Ma rcus Fel s on , Mercer Su ll iva n , G er-hard O. W. Mueller and Milton Heumann. Appreciation is extended to thoseju ry and other re s e a rch ers who re ad parts or all of the manu s c ri pt and of feredinvaluable comments, to include Nancy S. Marder, Lawrence S. Wrightsman,Ro s em a ry J. E ri ck s on , John Stu a rt Ba tch el der, L awren ce Ba u m , E l i z a beth F.Loftus, Rick Seltzer, Shari Seidman Diamond, Roslyn Myers, Finn Hornum,E ll en S. Pod gor, Lisa Sto l zen ber g, Fred Co h en , Craig Hem m en s , P h oebe C.Ellsworth, Michael J. Saks, Gary LaFree and Eugene Borgida. Finally the au-thor thanks, albeit posthumously, the Honorable Ronald C. Belt. It is to hiskind spirit that this book is meant to honor.