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Study on Connecticut federal juries II

Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:

I appreciate your comments very much, and I hope you'll post my response on your own blog. Your first comment hits the nail on the head when you suggest that our paper is limited by the length of trials in the data set. Ultimately, we must deal with the data set we are dealt, and we are very upfront about this limitation in the paper. It is why we intend to do a far more expansive study, once funding and time come through. But I will say this:
(1) We have to start somewhere, right? This conventional wisdom has been around for at least three decades, and no one has bothered to even attempt to empirically test it. Further, as the conventional wisdom becomes more entrenched, it also becomes stronger. If you read the articles we cite in footnote four, you'll find that many of them don't distinguish among short and long trials, or complex and straightforward issues and evidence. Instead, they simply condemn the system and offer "scholarly" alternatives. We think that we've shown that if the system is infected, it is only some kinds of cases. Further, our findings are buttressed by the real world literature on the topic, which seems to have escaped the notice of the commentators. Finally, we do not argue that juries are adept at dealing with cases; we make no such normative judgments. The juries we have may be ill-equipped to deal with them, and it may be worth considering major changes. But not until we have the data to back it up, and that data that we have presented does not support the charge that educated members of society are excluded from juries.

(2) You point to the differences between state and federal selection methods. You may well be correct, again. But we aren't willing to assume that you are correct. Instead, we are going to study it. And if state juries underperform federal juries in this area, then shouldn't we simply advocate that states adopt the federal system, rather than argue for wholesale, untested, and radical reforms based on no data?

(3) On your blog, you argue that judges subtly favor one side or the other and get rid of educated jurors as they see fit. Our study would have picked this up; indeed, many of the cases in our study did plead out or settle before trial (but after jury selection), and we see no correlation between those that go all the way to trial and those that don't.

In short, yes, our study is limited. But since it is done blindly and systematically, don't you think it is less limited than your own anecdotal experiences; and don't you think it is less limited than the theory, conjecture, and assumptions that passed for evidence before? You case a critical eye towards our data and conclusions, as well you should, but I wonder whether you are quite so critical about the articles that contain NO data, but perhaps affirm your own assumptions? The proper response to our study, I think, is this: It is limited and it should be expanded and repeated. We agree.

Some responses:

  • I think we're generally on the same page. My criticism wasn't anything more than that the study was limited. I certainly don't deny that it's good to start somewhere. However, my experience, both first-hand and in the course of researching for Overlawyered, Point Of Law, and other writings, may be anecdotal, but it reflects real problems. My point is that what has been studied in this paper doesn't squarely address the criticisms of the system and that my friend Dan Markel has thus somewhat overstated the implications of the interesting results you've divined.
  • I would expect the "average" jury to be more educated than the population as a whole, since many excluded categories of jury service (felons, non-English speakers, and, in some jurisdictions, those not registered to vote) tend to be less educated.
  • But, in my view at least, the issue is not that of the "average" jury, but that of the outlier jury: it's the outliers and the variance that creates the incentive for lottery litigation; it's the outliers that create the most distortion in the economy as a whole. It does an auto manufacturer little good if ten average juries find in its favor if the eleventh jury then awards hundreds of millions of dollars on the same illegitimate theory of liability. Those who suggest that who's in the "average" jury or that the percentage of juries who find in favor of defendants is evidence of a lack of a problem miss the point. I don't accuse Mr. Levin of being in this category, since his paper acknowledges that there may be a problem with the "baseline notion that representative juries make good decisions."
  • For the same reason, I disagree that your study of a handful of federal judges trying short cases would have picked up evidence of the issue of jury shading by a small minority of elected (and a smaller minority of appointed) judges in longer trials. Too, if the study distinguished between excusals "for cause" and peremptory challenges, it isn't made clear; if the study reviewed excusals "for cause" across judges, it isn't made clear.
  • For what it's worth, on a separate issue, I think the paper oversimplifies the common understanding of who wants an educated jury in a criminal trial. If the defense strategy is an emphasis on civil liberties or an explanation of the legitimacy of complex financial transactions, it's going to be the defense that wants the educated jurors; if the defense strategy is one of police conspiracies or celebrity immunity, it's going to be the prosecution that wants the educated jurors. The OJ Simpson trial--with the triple whammy of celebrity, outlandish police conspiracy allegations, and a complex prosecution theory based on circumstantial and forensic evidence--is perhaps responsible for the popular misunderstanding that it's the defense that wants the uneducated juror. The Simpson jury--where jurors were instructed to avoid bookstores--ended up with two college graduates and nine high-school graduates (though not all college or high-school graduates are created equally, as Levin acknowledges), no one who regularly read a newspaper, and nine people who thought that Simpson was less likely to be a murderer because he was a professional athlete.

On a separate note, Dan Markel, with whom I have broken bread on two coasts, e-mails me to point out that I failed to welcome PrawfsBlawg to the 'sphere, which I do now--but where's the Point Of Law blogroll link?



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.