Out of court

Friday, July 27, 2012

Why Juries Are Better Than Judges

     One of the beauties of our system of justice is that all citizens are eligible to decide the cases.  Unlike the European or continental system, the Anglo-American system puts a cross section of people on a panel to reach verdicts on civil and criminal cases.  Deciding whom to believe is central to the jury's role.   This is what juries do best.  The 12 members of a jury use their collective wisdom and experience to decide who is telling the truth.

     I just had a serious felony trial where the state called the alleged victim and a presumbly independent witness to say that my client committed an assault.  On our side, my client and a fellow co-worker testified to a totally different and innocent version of events.  The prosecutors hammered on the "independence" of one of their witnesses and tried to show how 'biased' my co-worker witness was.  Nonetheless, the jury  acquitted my client in well under an hour.

     Why?  Obviously they did not believe the state's witnesses and instead believed our witnesses.  One clear reason is that the alleged victim's manner while testifying was strange.  He clearly spoke English, but instead used an interpreter (which the jury saw through and became suspicious of.)  He refused to ever admit a mistake even when I confronted him with inconsistencies.  He testified that he was in the middle of the street some15 feet away from the pedestrian crosswalk at the time of the assault.  His written statement to the police the night of the incident said he was "in the crosswalk."  When I asked him about that difference, he insisted there was no inconsistency--that he meant 'near' the crosswalk in his statement--so as to reconcile the inconsistency.  When asked about other inconsistencies he attempted to explain them all rather than admit error.  In closing I argued that a liar can never admit a mistake.

    In contrast, my witnesses did not use interpreters, even though their English was far from perfect.  In this way, the jury would understand and hear their actual words and get a better feeling for them as people.  They also had a nice, likable manner in contrast with the alleged victim and the other 'independent' witness.  When confronted by the prosecutor with some inconsistencies, my witnesses did not get defensive but either conceded error or explained in a way that made sense.  It was all about how they were perceived by the jury.  This intangible, call it likability, made all the difference.

     Judges, on the other hand, have difficulty with the intangibles.  They tend to be more intellectual and make decisions without really discussing it with anyone else.  So their thinking is not shaped by other viewpoints and for that reason, can be narrow minded.  For political and other reasons, they have a real problem in disbelieving police officers.  In contrast, jurors are much better at scrutinizing police credibility. 

     Recently, I raised a Fourth Amendment issue, attacking the stop and seizure of my client in a case.  This type of motion is only heard by a judge who decides both the law and the credibility of the witnesses.  The police witnessses were adept at either not recalling key events or of being so certain of their observations that they were superficially credible.  I say superficially because they convinced the judge they were truthful.  One police officer was over-the-top in his perfect recall of a split second event and was way too much of a know-it-all and see-it-all witness.  And yet, the judge bought his version of events.  Despite my best effort, the judge refused to make certain inferences which would have made their testimony less credible.  Instead the judge just assumed that what they said was true without critically analyzing their version.

     Obviously I lost that motion and maybe I'm bitter.  But I do believe a jury would have had a much harder time believing the police and probably would have been more open to my arguments than the judge was.  It's on appeal now to a panel of appeals judges but not to a jury.  I can only hope they act more like a jury.

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