Judgment Calls

If you need further proof that a human being is a close cousin to a chimpanzee, you need look no farther than the design of the American justice system.

Debra Nelson, the judge in the George Zimmerman murder case, has disallowed testimony from audio experts about whether that’s Zimmerman or the deceased Trayvon Martin who can be heard screaming on the 911 tape. That matters, because much of what’s in dispute here is the question of who attacked whom.

One prosecution expert was prepared to testify that the screams are Martin’s, and another that they are at least not Zimmerman’s. Defense experts were prepared to dispute those claims. They made their arguments in front of the judge for several days, whereupon she ruled that the jury won’t be allowed to hear any of it.

The judge’s concern was that there is no good evidence that the experts’ techniques are reliable. That might be true. But who should be making that call — the judge or the jury?

There is, I think, an excellent case to be made that juries are, by and large, incompetent (or at least less competent than judges) to determine what constitutes a plausible argument by an audio expert. But if you buy that argument, I think you’ll be pretty much forced to conclude that the jury is also incompetent to reach a verdict. If that’s your view, we shouldn’t have juries in the first place.

There is also, I think, an excellent case to be made that juries are sufficiently competent that we should trust their judgments, especially when the alternative is to trust judges who are potentially corrupt, incompetent, or lazy. If that’s your view, we should trust the jury with any evidence the attorneys want to show them.

But I think it would be very hard to argue that the same jury is both incompetent to judge testimony about screams on a 911 tape and competent to judge testimony about dozens of other relevant bits of evidence where there’s sure to be dispute about the veracity and competence of the witnesses.

You might — just possibly — be able to make a case that there’s something special about audio analysis (and, presumably, a few other subjects) that makes juries uniquely incompetent — and/or makes judges uniquely competent — to pass judgment on these issues. But in my experience, most people are either generally good at assessing evidence and drawing conclusions or generally bad at it. The people who I’d trust to assess the testimony of an audio expert are pretty much the same people I’d trust to assess pretty much any other kind of testimony (unless, of course, they themselves are audio experts, which I presume in this case is true of neither the jury or the judge).

You might want to argue that the judge is simply saving everyone a little time (news stories suggest that this ruling might cut as much as a week off the trial) by disallowing testimony that the jurors are pretty sure to reject in any case. But the solution to that is not for the judge to usurp the judgment of the jury; it’s to charge the attorneys for their use of court time. Let them present whatever evidence they think is sufficiently convincing that it’s worth their while to pay the jury to hear it.

I understand the good arguments for and against having a jury system, but where is the good argument that says we should trust juries with life-and-death decisions while not allowing them even to hear about collateral matters that the prosecution or defense considers relevant? Anyone?

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69 Responses to “Judgment Calls”


  1. 1 1 Bob Murphy

    Steve,

    I’m not disagreeing with anything you’ve written here, but I wonder: Do you object to a judge giving any kind of guidance to a jury at all? E.g. suppose the judge says, “OK, you’ve heard all the evidence and now you need to go discuss the case and try to come up with a verdict. Remember, the law says the defendant is guilty if such-and-such conditions hold. So you need to determine whether you think those conditions hold.”

    Do you have a problem with the above? If not, do you see why it opens up a can of worms where it’s hard to draw the line?

  2. 2 2 Robert Easton

    Bob,

    I think it’s easy to draw a line between those. In one the judge is just providing extra information. In the other they are denying it to the jury. Steve also says “unless, of course, they themselves are audio experts, which I presume in this case is true of neither the jury or the judge)”. What the judge is an expert on is law. Perhaps on legal issues, rather than kinds of evidence they are not expert on, it would make sense for the judge to decide what evidence the jury are allowed to consider

    Even without that, your example is quite different.

  3. 3 3 RichardR

    “where is the good argument that says we should trust juries with life-and-death decisions while not allowing them even to hear about collateral matters that the prosecution or defense considers relevant? Anyone?”
    “Solution is to charge the attorneys for their use of court time.”

    It’s pretty obvious what’s wrong with. A Billionaire could pay for 50 years’ court time to present loads of collateral matters and would have died a natural death before being found guilty or not guilty!

    I prefer a system whereby judges can allow / disallow certain evidence.

  4. 4 4 Tim

    Judges make decisions about what evidence is admissible all the time – these are questions of law. The jury is supposed to decide questions of fact.

    The decision yesterday was not that “no experts can testify,” it was that, legally, “those two guys are not experts.”

  5. 5 5 Steve Landsburg

    Bob Murphy: I do see where it’s hard to draw the line, but as in many circumstances where lines are hard to draw, I think it’s still easy to say that many things are clearly on one of side of it.

  6. 6 6 wobbly

    The expert didn’t have enough audio data, so he looped it. The judge ruled this inadmissible. Another expert commented:

    “I use a four-digit PIN for my ATM card. So, I’m going to give you four digits of my PIN, and it may go out on the internet right now, it might go out to everybody, I’m going to give you four digits from my PIN. The first digit is 1, the first digit is 1, the first digit is 1, and the first digit is 1. Does that give you enough information to use my ATM card?”

    It was entertaining at the least. There’s plenty of coverage at Legal Insurrection: http://legalinsurrection.com/2013/06/zimmerman-trial-frye-hearing-continues-with-prof-james-l-wayman/

  7. 7 7 Ken B

    The judge’s role is to see the rules of evidence are followed. For “expert” testimony there are standards because of the imprimatur of expertise. The test is usually called Frye. This testimony clearly fails Frye.

  8. 8 8 Steve Landsburg

    wobbly: And why couldn’t a jury have understood that analogy?

  9. 9 9 Roger

    It sounds as if you are against the whole concept of the admissibility of evidence. If so, then you are against how our legal system has operated for centuries. What is your proposal? Trials spending time on every irrelevant nonsense that either side wishes to bring up?

  10. 10 10 andy weintraub

    As an expert witness in trials involving personal injury or wrongful death, I have to testify regarding the lost compensation of the victims. Generally, I find the judges’ and attorneys’ ability to understand my testimony inferior to that of the jury, as measured by the body language of the jury members (I taught economics for thirty years and I just knew when my students were “getting it”.) while I am testifying and, also, by their verdicts.

  11. 11 11 Alan Gunn

    So should a judge allow “expert” testimony by psychics, palm readers, or astrologers? The “experts” who claimed to be able to identify the voices on the tapes in this case were no different from these people. One of the few improvements our legal system (at least in the Federal courts) has seen in the past few decades is the increased willingness of judges to keep out “expert testimony” by people who are not in fact experts. Doing this isn’t usurping the function of the jury: with an exception for findings of “not guilty” in criminal cases, juries aren’t allowed to reach decisions that (in the judges’ view) reasonable people could not reach. Just as nobody is entitled to a verdict on the theory that someone case a spell on him, no one can be convicted on the basis of testimony by people who are charlatans.

  12. 12 12 Peter Tennenbaum

    Precious few people–in my opinion–are in a position to assess the technical competency of an audio analysis/analyst.

    Errett Bishop’s youngest son, in a “To Whom It May Concern:” letter of recommendation for me, wrote that I was a “pioneer researcher in experimental acoustics.” Every few years I ask for a letter from someone who knows my recent work (as I have no official stamps–only jokes about official stamps). I do, however state exactly one proviso: “If you exaggerate in the slightest, then the letter is absolutely worthless to me.” This does not mean that I must agree with the content, only that it is honest and not over-stated according to the conscience of the writer (a conscience is assumed).

    That said, I believe his claim can be substantiated by documentation that would NOT be subject to disagreement by experts or even any Ph.D in math or physics that knows Fourier’s Theorem and some very minor details about digital sampling processing techniques; indeed, I claim–and would bet $1,000–that Prof. Landsburg, if interested, would be able to ascertain whether Bishop’s claim has absolute merit, but only if Prof. Landsburg were willing to devote an uninterrupted hour or two reading two short papers of mine and then listening to my description of an experiment that took me 5 years to set up yet only lasted 1/200th of a second (each “TRIAL” of the experiment took approx. 1/200th– always less than 1/99th of a second–NOT the analysis of generated data).

    I would trust an “average” judge (IQ over 100–whatever THAT means) over an “average” jury (average IQ = ? — unknown to me, but surely an interesting question, assuming that the number has meaning)… I would trust an average non-corrupt judge (if extent) FAR more than ANY average jury to make an assessment UNLESS a member of the jury was a competent audio expert AND someone with the social and technical skills needed to explain key issues with crystal clarity to those who have little technical training but are not (yet!) brain damaged (in the conventional sense).

    Here I assume that every member of the jury has either memorized (or can understand) the standard addition and multiplication tables. Here the tables need not exceed 10+10=20 and 10*10=100 (in the standard archimedean system of arithmetic) and each person must understand the main idea that BOTH the symbols and their relative positions/placement provides the main idea’s conceptual essence — and that carrying over is understood, without ANY confusion).

    Of course no such jury “probably” exists but I would bet $10 that the average judge could repeat most of the key words (e.g., one, two, three… add, multiply, equals…).

  13. 13 13 wobbly

    Steve, I doubt I could give a useful opinion on how the law should run, which is why I kept my comment informational. But since you’re asking for an opinion, I’ll try.

    If prosecution and defense could bring in whatever they felt like and have the jury figure out what was admissible then by the end of the trial you’d have a jury well on its way to passing the evidence portion of their law degree.

    Then you might find endless evidence and experts being brought in as a form of weak advertising to the jury. Could it work for individual cases? Sure, but I’d guess it would be inefficient overall.

  14. 14 14 Roger

    Arguments about the competence of judges versus juries miss the point. Neither the judge nor the jury is allowed to consider this sort of unpublished pseudo-scientific theorizing under Florida law.

  15. 15 15 Tristan

    Roger, the issue at hand is who gets to determine what is pseudo-scientific and what isn’t. There’s no strictly mechanical way to determine this– it’s a judgement call. Landsburg’s point is that the judgement call should be made by the juries, since after all we trust their judgement in other, similar questions.

  16. 16 16 Steve Landsburg

    Alan Gunn:

    So should a judge allow “expert” testimony by psychics, palm readers, or astrologers?

    Why not? Are you worried that juries would give credence to this stuff? If so, why are we allowing them to decide on matters of life and death?

  17. 17 17 Steve Landsburg

    wobbly:

    If prosecution and defense could bring in whatever they felt like and have the jury figure out what was admissible then by the end of the trial you’d have a jury well on its way to passing the evidence portion of their law degree.

    Not if you priced things right.

  18. 18 18 Roger

    Tristan, it is not a judgment call about the validity of the testimony. The issue is whether the technique is generally accepted as reliable in the relevant scientific community.

    Steve, the reason for not allowing astrologers is that they are not relevant. We allow juries to decide life and death for several reasons, including a desire for citizen participation in important decisions.

    If you want to complain about what is being kept out of the trial, consider (1) Martin’s rap sheet; (2) Martin’s autopsy toxicology report; (3) Martin’s text messages about guns and violence; (4) Zimmerman’s previous 911 calls; (5) the black crime rate; (6) the lies told by MSNBC to get the public inflamed about this case; (7) the political pressure brought on the Florida AG to prosecute; (8) the phony accusation used to revoke Zimmerman’s bail and to charge his wife; (9) the continuing threats against Zimmerman; (10) the Martin family plans for a civil suit; (11) the possibility of a federal civil rights charge if the jury acquits; (12) the possibility of Rodney King riots; etc.

  19. 19 19 Alan Gunn

    @ 16. We have to allow juries to decide some questions, because the constitution says so. It may or may not be a good idea; if you dislike it you could start a movement for a constitutional amendment. But we also have a system in which judges decide what kinds of evidence the jury should be allowed to hear. The theory, for what it’s worth, is that jurors are as good as judges at deciding which witnesses are lying, but they are not fit to decide scientific matters on their own. Expert testimony is different from lay testimony because experts are allowed to give their opinions on disputed matters, ordinary witnesses can’t give opinions on anything.

    I prefer a system in which evidence that’s obviously garbage isn’t allowed in. We can’t do away with juries, but we can at least try to limit the harm they can do. Since abolishing juries is not, as a practical matter, on the table, our choices are juries that can hear only evidence that judges consider relevant, competent, and material (to use the jargon) and one in which juries could hear all kinds of garbage. Do you really think the second system would be better? That a jury should be allowed to base a decision on the opinion of, say, Robert Kennedy, Jr., about a matter on which all reputable scientists go the other way?

    Before the federal courts started looking closely at the kinds of expert evidence that should be allowed in, useful medicines were taken off the market because juries bought testimony that was nonsense. Things are somewhat better today. I don’t regret that change. I doubt that you really do either.

  20. 20 20 Roger

    @19, the judge cannot decide scientific matters. She only ruled on whether the testimony would be relevant, and would rely on generally accepted methods, such as those described in textbooks and peer-reviewed journals.

  21. 21 21 Mike H

    …that the experts’ techniques are reliable. That might be true. But who should be making that call — the judge or the jury?

    Another expert?

  22. 22 22 Neil

    So should a judge allow “expert” testimony by psychics, palm readers, or astrologers?

    Why not? Are you worried that juries would give credence to this stuff?

    Yes.

    If so, why are we allowing them to decide on matters of life and death?

    Because the Constitution says we have to.

  23. 23 23 Gordon Landwirth

    I concur with Neil Re: #22. I think we should also consider a scenario in which some new evidentiary “science” has emerged, yet may be as quite untested, and there may not have been enough familiarity and experience with it even for experts to testify to its unreliability on either a theoretical or empirical basis. Yet a proponent and practitioner of such a science/quasi-science/pseudoscience may be able to make an extremely persuasive presentation to laypeople constituting a jury. I think it is the proper role of a judge to rule on whether such testimony/evidence is admissible. It’s possible that its probative value is too dubious or unestablished relative to its prejudicial effect.

  24. 24 24 Harold

    #10 -are you sure you are not confusing “understanding” with “agreeing with me”?

    The judge is in a position to make that call, but the jury is not. That is because the judge can rule on whether the information is likely do disproportionally affect others, which can be done dispassionately. The jury would be effectively being asked whether the information would disproportionally affect themselves, which we are unable to do even in theory. We cannot see our own cognitive errors, or we would not make them in the first place.

    Juries are an imperfect way to establish guilt or innocence. We know for a fact that people are influenced by irrelevent information, and subject to myriad cognitive errors that make a rational descision impossible. All we can do is to try to get the best we can.

    Since we know from empirical data that people are pursuaded by incorrect, irrelevant and erroneous information, the best we can do is to try to ensure they don’t get to hear it. It seems sensible to allow experts (the judges) to rule on what should and should not be allowed. Expert opinion should only be allowed if it is backed up by evidence. Otherwise we can almost guarantee that it will have a disproportionate effect.

  25. 25 25 Ken B

    I think 13, 14, and 20 (toggether with 7 of course!) answer the question.

    There is a clear distinction between judging credentials and whether something is real science and what the results of that science mean for a particular case. It’s probably even a good thing probabively, two different standards of review. So it’s not, as Steve suggests, foolish to have different arbiters. Especially when we want some sort of consistency in what is admissable. If it were a free for all Steve or some othe econ prof would blog about the crazy inconsistency of what passes for science.

    Plus of course the judge is really applying a LEGAL standard and case law. That’s what judges should do.

  26. 26 26 James Kahn

    There are two distortions that make the “just charge them for it” argument problematic. First, we’ve got the prosecution using taxpayer dollars. So how do we know they will spend the money wisely? Second, we frequently have defendants with taxpayer-provided attorneys. So it’s not generally easy to get the players to internalize the costs.

  27. 27 27 Ken B

    A hypothetical for Steve. A key element of a case depends upon a proper understanding of what Godel’s Theorem implies about the metaphysics of the real numbers. I want to call Silas Barta as an expert witness …

    :)

    Sorry couldn’t resist.

    But my point is substantial. Juries are not where we sort out competing scientific theories. It’s hard enough in the real world with lots of time and resources.

  28. 28 28 Ken B

    Jury trials really should not be cliff hangers with a lot of uncertainty.
    Ideally they should be pretty clear once the evidence is presented.
    The jury should decide *on the basis of the evidence they saw* that the answer is obvious.

    That restriction to “the evidence they saw” is crucial though.
    Trials are not some divinely ordained truth seeking mechanism.
    They are a check on government power.
    The law, in the form of the judge, precedent, and appeals, enforces rules about what
    evidence the prosecution (and defence) can use.
    This is how rights are enforced.
    It requires logically that there be someone other than the jury who decides what the jury hears.

    I’d bet these “experts” would be allowed in a civil trial where the issues differ.

  29. 29 29 James Kahn

    And to anticipate a response to my 25, yes, we don’t know the judge will be responsible with taxpayer dollars either (qui custodiet ipsos custodes and all that), but presumably the judge has less of a stake in the outcome, and his or her job is arguably to make the process efficient, as well as to conform with the law, as others have pointed out.

  30. 30 30 Steve Landsburg

    James Kahn (#25 and #28): You worry about the prosecutor and the taxpayer-funded defense attorney having all the wrong incentives. But the judge’s incentives are equally questionable. By creating complicated rules about admissibility of evidence, which only judges can understand, they create work for judges. In the case at hand, the judge spent the better part of a week hearing arguments on the admissibility of audio evidence. That creates a lot of demand for judges. (It’s true, of course, that most of the benefits go to judges other than the judge in this case, but still, I bet that judges have ways of rewarding each other for this kind of thing.)

    It does no good, I think, to say that the judge’s job is to keep the process efficient, when judges benefit from making the process inefficient, at least in ways that increase the demand for judges.

  31. 31 31 Harold

    #24 “Plus of course the judge is really applying a LEGAL standard and case law. That’s what judges should do.” I don’t think anyone has suggested that the judge should not act as they did under current law, but whether the current legal standard is the right one.

    I think the example given here of “expert” testimony where the body of evidence is insufficiant to have confidence in the results is on the “wrong” side of the line to make Steve’s point. I think it turns out that there are good and valid reasons to exclude this type of evidence because the soundness of the evidence is in doubt.

    There are other types that are not allowed, where the facts are not in doubt, previous convictions for example.

    SL says “I think you’ll be pretty much forced to conclude that the jury is also incompetent to reach a verdict”. I do believe that juries are pretty incompetent. A panel of trained jurors would probably get a better result. But it is much harder for corruption to creep in with juries that sit for only a short period. To avoid corruption, we put up with juries. To give the juries the best chance, we limit what they can hear to limit the ill-effects of prejudice, ignorance and bias.

  32. 32 32 Ken B

    SL: “It does no good, I think, to say that the judge’s job is to keep the process efficient, when judges benefit from making the process inefficient, at least in ways that increase the demand for judges.”

    I agree with this, and I’d go farther. The legal system in toto has a perverse incentive to complicate and obfuscate the process. Eugene Volokh over at volokh.com has had a few interesting posts on this exact issue in the past couple of years, including reports on studies (which I cannot evaluate) showing judges with a clear bias for making rulings which complicate things further.
    (Insert Jarndyce v Jarndyce allusion here.)

  33. 33 33 Neil

    We do not have juries because we believe in the competence or wisdom of the twelve people empaneled. We have a right to jury trials as a check on state power. That is why the right is enshrined in the Constitution with precedents going back to Magna Carta. So the competence of juries, or lack thereof, is not relevant.

  34. 34 34 Harold

    SL: “It does no good, I think, to say that the judge’s job is to keep the process efficient”

    Does anyone say that is the judge’s job? I agree that the whole field of the law is rife with perverse incentives to keep it as complicated as possible. The bill for legal services is multiplying. I think I read it on this blog somewhere – perhaps even from Ken B, but there was a raeasonable explanation of why contracts are so convoluted. It is because only unclear and difficult to understand contracts need to go before a judge to get a ruling. It is only contracts that have been ruled on that other lawyers are confident to use as models. Thus propagates the worst examples as standard.

    The role of the judge is surely not to keep it efficient, but to keep it corrrect. I suppose the legislators have the job of keeping it efficient.

  35. 35 35 Ken B

    SL smuggles in a false premise here: “why are we allowing [juries] to decide on matters of life and death?”

    The false premise is that we let just juries “decide”. We only let juries make *part* of the decision. We let the judge, jury, and appellate courts all “decide”.

  36. 36 36 Jimbino

    Years of performing magic and hypnotism and of doing door-to-door sales have left me with no confidence in the good sense of 12 otherwise decent folks who are doomed to fall for tricks and illusions hook, line and sinker. It’s not that they are folks too dumb to get out of jury duty; they are folks who have not learned to distrust or at least doubt what first appears to be clear evidence.

    Add to that the fact that most anyone knowledgeable of the law or the science involved is discouraged, if not excluded, from jury duty.

  37. 37 37 Jens Fiederer

    Only peripherally relevant, but some linguists agree with the judge:

    http://languagelog.ldc.upenn.edu/nll/?p=4886&utm_source=feedly

    As the whole admissibility issue goes, the jury is supposed to focus on the actual case, not decide on the effectiveness of astrology and such. A recognized “authority” has a huge advantage in credibility with juries, and thus being able to decide who is an authority and who isn’t is really something that can be decided on based on best evidence for ALL cases, rather than having to be separately decided in each and every case. I don’t know if you are familiar with the Stephen Haynes story in Mississippi (medical examiner who helped secure hundreds of convictions with his “expert” testimony that turned out to be not so expert), but it is a good thing that his testimony is no longer requested in any case.

    The advantage of the judge spending a week on the question is that now that judge (and probably many of his colleagues) can spend LESS time on the next case where audiotapes are being evaluated. Again, I consider this a good thing, sort of like “psychic” testimony is not even seriously considered…rather than both sides bringing in dozens of competing psychics that the jury can then decide to disbelieve.

    The point here is FOCUS.

  38. 38 38 Alan Wexelblat

    Other commenters have hit on most of the points I’ve made so I’ll keep it brief: Judges are there to enforce the rules of the game and when the rules are unclear to make decisions about those rules. The players are supposed to know and follow the rules but may not and have more incentive not to. Thus the role of the judge is as necessary (and often controversial) as the role of an umpire in baseball. I see nothing particularly novel in this, as your earlier commenters explained.

    I should also note that one of the reasons for this is that judges, unlike juries, are responsible for uniform application of the rules (law) and are subject to review (appeal) also unlike juries. If it’s still unclear to you at this point why a jury isn’t allowed to decide if something is within or out of the rules I’m not sure what more I can add.

  39. 39 39 miko

    Possible explanation….
    We think Juries are (probably) incompetent, we think Judges the same of judges (maybe less incompetent, more corrupt).
    Then spreading the decisions to be made between Judge and Jury gets us sort of a minimizing the likelihood of two bads.

  40. 40 40 Neil

    It is not just about jury competence. It is also the fact that jury decisions are decisions by committee, and committees can be notoriously inefficient, sometimes perverse, decision-making bodies even when composed of competent individuals.

  41. 41 41 nobody.really

    1. Free speech vs. rules of evidence: Landsburg observes the tension between free speech and the rules of evidence at trial.

    As a general proposition, US law bars government from prohibiting someone speaking to another person. When that person’s remarks cause error or harm, the principle remedy is MORE speech. Yet when we go to trial — the domain most closely suffused with the law – we abandon the view that the remedy to bad speech is more speech, and replace it with the view that the remedy to bad speech is injunction on pain of mistrial, court costs, and contempt.

    Why the disparity?

    Perhaps this disparity reflects an acknowledgement that more speech is an inadequate remedy for bad speech, but the cost of enjoining bad speech outweighs the benefits. In short, perhaps our exalted Principle of Free Speech is really just a second-best solution, a practical make-do response.

    Alternatively, this disparity may reflect a desire for efficiency – that is, more speech may well remedy bad speech EVENTUALLY, but we don’t want to keep the jury empaneled and sequestered long enough for the harm of the bad speech to dissipate. So, as a substitute, judges are empowered to restrict the stuff that can be presented to a jury.

  42. 42 42 nobody.really

    2. Judicial bias for complexity: The suggestion that judges have a strong interest in prolonging judicial proceeding seems implausible to me. I’m not aware of any judges that have compensation that varies in proportion to the length or complexity of a trail. And every judge of my acquaintance has PENTY of work to do; they really don’t need to rig systems to get more. This is especially true on the federal side, where partisan gridlock has the effect of leaving many courtrooms vacant – and shifting the workload to the other judges. In the height of the crack epidemic, a federal district court could spend its entire day simply hearing people plead guilty to drug convictions. (Pleading guilty is a lengthy process.)

    Back in Dickens’s day, courts could be officious; people who failed to observe legal niceties might see their cases thrown out with prejudice. Since then, legal reforms have tried to simplify litigation, making judges more forgiving in the types of filings they would accept. But as the caseload grows relative to the number of judges available, judges have become stricter as a means of controlling their workload.

    Perhaps someone could study the percentage of pro se prisoner filings accepted by federal courts. Prisoners, with nothing to do all day but visit the Constitutionally-required law library, crank out petitions by the thousands. Judges are supposed to evaluate these petitions leniently, given that they are prepared by people without the benefit of counsel. But how leniently? That’s unclear – and this provides a perfect vehicle for judges to influence the size of their own workloads. In practice, judges look for perfunctory excuses to dismiss these thousands of filings; what practical alternatives do the judges have? But I wouldn’t be surprised to learn that the percentage of filings rejected increased in proportion of the rest of the court’s workload. (But is might be a very small change – increasing the rejection rate from 99.5% to 99.7% or something.)

  43. 43 43 nobody.really

    3. Claims of superior status/expertise: Landsburg occasionally complains that Krugman wrongfully exploits his status as a Nobel Prize-winning economist to promote ideas unrelated to his status. Thus I’m somewhat surprised to read Landsburg’s objection to a judge refusing to let someone claim an expertise that the judge deems unjustified. (To be fair, the judge is exercising censorship. I don’t recall Landburg, even at his most vexed, advocating that we censor Krugman.)

    The heart of the judge’s ruling pertains to claims of status: Are the prosecution’s witnesses entitled to present themselves as experts on voice recognition, having some capacity or insight or perspective that exceeds the jurors’? The judge reviewed their claims of expertise and concluded that these claims didn’t hold up; the proffered investigative techniques were not reproducible or whatever. I don’t understand the judge to prohibit the prosecution from asking the jurors to listen to the tape and draw their own conclusions; the judge merely forbids the prosecutors from presenting people who claim that they have some superior capacity for drawing these conclusions that the jurors do.

  44. 44 44 Ken B

    re 41 “Why the disparity?”

    Because the issue is admissibility of evidence.

    Imagine a warrentless search of your car.

    “Officer, did you find drugs in nobody.really’s car?”
    “Yessirree boy, bags and bags. Major dealer amounts! Right next to the kiddie porn!”

    You think this exchange will restore your 4th amendment rights:
    “You get a search warrant first?”
    “No, he just felt creepy to me.”

  45. 45 45 nobody.really

    re 41 “Why the disparity [between treatment of speech in general, and speech in court]?”

    Because the issue is admissibility of evidence.

    Imagine a warrentless search of your car.

    “Officer, did you find drugs in nobody.really’s car?”
    “Yessirree boy, bags and bags. Major dealer amounts! Right next to the kiddie porn!”

    You think this exchange will restore your 4th amendment rights:
    “You get a search warrant first?”
    “No, he just felt creepy to me.”

    The 4th Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” And, to be sure, the exclusionary rule helps enforce that policy.

    Similarly, we could apply the exclusionary rule more generally and say that when a private citizen breaks into my car, discovers the bags of drugs I keep next to my kiddie porn, and reports this fact to the newpapers, I should be able to enjoin the papers from publishing his account.

    Yet we don’t. We let the newspapers publish, and I’m left to pursue whatever remedies I can find to restore my reputation.

    Outside the courtroom, free speech trumps privacy. Inside the courtroom, privacy (and other policies) trump free speech. The disparity abides.

  46. 46 46 iceman

    I can buy the defenses of (properly guided / ‘focused’) juries that have been offered here, but can anyone explain / defend the selection process? Seems we might be able to worry a little less about qualifying ‘expert’ testimony if we didn’t first seem to ensure that jurors are as devoid as possible of anything resembling relevant expertise.

  47. 47 47 nobody.really

    [C]an anyone explain / defend the selection process? Seems we might be able to worry a little less about qualifying ‘expert’ testimony if we didn’t first seem to ensure that jurors are as devoid as possible of anything resembling relevant expertise.

    Remember jury selection during the OJ Simpson trial? Given all the publicity, finding people with the requisite level of ignorance was challenging:

    >Knock, knock.
    >Who’s there?
    >O.J.
    >O.J. who?
    >Ok, we can put you on the jury….

  48. 48 48 James Kahn

    34 “The role of the judge is surely not to keep it efficient, but to keep it correct.”

    People here are taking a needlessly literal interpretation of “efficient.” Correctness in the sense of adherence to the law and rules of evidence is integral to what I meant by efficiency. Those rules have evolved over the years at least in part to embody efficiency in the sense of relevance, probative value, etc. It includes the idea that the lawyers cannot add noise and expense to the process by introducing all sorts of irrelevant and possibly misleading information.

    30: As I said in 29, of course there is no guarantee judges will be “efficient.” But the fact that the lawyers on at least one if not both sides of criminal cases are playing with other peoples’ money is sufficient to disprove the “Just charge them the right price” proposition. It’s a “second best” world of misaligned incentives where we try to have judges who will produce a better (not ideal) outcome.

  49. 49 49 Ken B

    @45
    First you asked why the disparity. Now you demand proof there is none. Court rooms are about evidence, hence the different rules. Nothing prevents you from speaking away from the jury.

  50. 50 50 Roger

    @47: The Zimmerman trial opened today with the defense telling that knock-knock joke. No one laughed. The jurors might have been insulted, as most of them said during voir dire that they about Zimmerman and the case.

  51. 51 51 Ed Kless

    A little late to the party here and perhaps a bit off topic, but I have always felt we should reverse the roles of judge and jury. In other words, the judge should determine guilt or innocence and the jury should decide the sentence.

  52. 52 52 Ken B

    @47
    You raise an interesting point. The OJ jury was not actually selected for ignorance, but for pliability. OJ had the best –by which I mean most capable and amoral — jury consultant money could buy, with research into each potential juror at hand for his lawyers.
    I would think F Lee Bailey’s performance in that proceeding a good example of why we might want to restrict what the jury hears!

  53. 53 53 Ken B

    @16
    No limit? You seem to be arguing that.
    Warren Buffett, on trial for murder, submits a witness list 15,000 names long, all of whom will testify, for an hour to explain their methods, why their divinations exonerate him.

  54. 54 54 Ken B

    @43 n.r
    Exactly. The judge is deciding if the guy’s testimony counts as EVIDENCE or just some semi random opinion. The opinion can be put to the jury, just not under the rubric of expertise.

  55. 55 55 Harold

    #41: “that is, more speech may well remedy bad speech EVENTUALLY, but we don’t want to keep the jury empaneled and sequestered long enough for the harm of the bad speech to dissipate.”

    I think this nails it. Not so much dissipate as be corrected by education. We do not want to send jury members on statistics courses, forensic science courses, psychology courses etc. to get them to the point where they can reach reasonable conclusions about the evidence. The penalty we pay is that evidence that has some value is excluded.

  56. 56 56 nobody.really

    that is, more speech may well remedy bad speech EVENTUALLY, but we don’t want to keep the jury empaneled and sequestered long enough for the harm of the bad speech to dissipate.

    I think this nails it. Not so much dissipate as be corrected by education. We do not want to send jury members on statistics courses, forensic science courses, psychology courses etc. to get them to the point where they can reach reasonable conclusions about the evidence. The penalty we pay is that evidence that has some value is excluded.

    Moreover (returning to my thesis), this control of speech in court reflects an acknowledgement that free speech advocates are loathe to make outside the courtroom: the remedy to bad speech is not merely more speech, but rather specific kinds of speech — statistics courses, forensic science courses, psychology courses, etc. – targeted to people who are prone to act on the basis of the bad speech. In short, there often is NO practical remedy to bad speech.

    In this sense, the principle of free speech is not something to celebrate; at best, it’s an acknowledgement that we generally lack a mechanism for controlling speech that is less harmful to society than the speech itself. But this is NOT the same as concluding that bad speech is harmless. While sitting in a Birmingham jail, Dr. King remarked on how free speech (among other practices) generated externalities, and he would see —

    ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; … when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”….

    Society benefits from free speech. But freedom isn’t free; people do pay a price for it, and it is far from clear that the price an individual bears is proportionate to the benefit the individual receives.

  57. 57 57 iceman

    51 – I seem to recall TAE mentioning that if victims had punishment rights sentencing might be too lenient (unless the rights were saleable); could this apply to juries too? To forgive is divine, unless it increases the crime rate.

    53 – Of course at some point the prosection can I think simply stipulate that lots of witnesses will say similarly glowing things and the jury gets the point

  58. 58 58 Ken B

    @57:
    Nope, no go. That would again imply the judge has power to preclude witnesses on some basis, rather than let the jury decide. Buffett would never agree that a mere stipulation is enough. (my point is that the witnesses are a delaying tactic extending the trial without end.)

  59. 59 59 iceman

    But that’s how it worked in “A Few Good Men”!

  60. 60 60 Harold

    #58. It seems to work that way in Italy – especially for Silvio Berlusconi.

  61. 61 61 iceman

    Seems to me at issue in 53 is not necessarily free speech but repetitive speech (at public expense). A judicial ‘basis’ could be that no egregious harm is done in informing a jury that 14,999 other people are prepared to offer a similar divinely-inspired opinion that Buffet is in fact an oracle. One could argue more harm is done by exasperating a jury to the point that they are eager to come to almost any agreement to end the proceedings.

  62. 62 62 Ken B

    @61
    There you go again, arguing the merits! All I am doing is pointing out that no-one really believes the jury should hear everything. So an appeal to the principle “just let the jury decide for itself” full stop is a bad argument. Steve (and you) already are admitting there are times when the judege should decide what the juries hears. Now we can get back to discussing nuts and bolts.

    Let me put my finger on Steve’s fundamental error. He thinks jury trials are supposed to be truth detection machines. They are not. They are evidence weighing machines. These are very different things. The issues at stake are not just what is true, but also what is proven, and how was it proven.

  63. 63 63 iceman

    62 – I was mainly trying to say I didn’t find 53 to be entirely on point because one can draw a reasonable distinction between restricting a jury from hearing certain things or different things vs. hearing the same thing over and over (which is of no consequence to their ability to “decide”). A minor point perhaps. I agree with you that our system is designed (rightly for reasons mentioned below) to make parties actually prove their case (with a somewhat greater onus on the prosecution).

    56 – Another interesting take on an important issue, but to me outside the courtroom the self-imposed restraint that embodies a healthy respect for free speech is truly something to celebrate (and rarely achieved historically). As others have said, inside the courtroom the problem is we’re on the public dime (free speech doesn’t mean the govt must provide you a microphone) and under time constraints due to full dockets (so yes the imprimatur of “expertise” take on additional weight).

    The inherent problem with your construction is that it requires / assumes an objective arbiter of “good” vs. “bad” speech, ideas etc. (a real-life oracle?). I think of this as “the fallacy of omniscience”, and a strong argument for local determinism on as many issues as possible (e.g. federal education standards). In the real world, respecting free speech and letting people (*trusting* them to?) sort out the arguments truly is, I believe, not just the best we can practically do but a noble ideal. And it *only* has meaning to the extent it’s applied to things with which we disagree. Obviously, *acting* in ways that harm people unjustly is an entirely different matter. But best to always imagine the power to censor in the hands of someone from whom you’d recoil.

  64. 64 64 International Lawyer

    The point is to save time.

    To make a decision on reliability and relevance, somebody has to hear sufficient evidence to make an informed decision. If the judge does that in a preliminary hearing, the only time wasted is the judge.

    If the jury has to decide that, you waste the judge’s time, 6 or 12 or (with alternates) 14 jurors’ time, the lawyers’ time, the bailiff’s time, the reporters’ time ….

    A party can still try to convince the jury that the expert’s opinion is bunk.

    It generally saves the judge’s time, too. If expert opinion is relevant to this case, it has probably been relevant to some earlier case. And the precedent of the earlier case saves everybody’s time.

  65. 65 65 nobody.really

    [O]utside the courtroom the self-imposed restraint that embodies a healthy respect for free speech is truly something to celebrate (and rarely achieved historically). As others have said, inside the courtroom the problem is we’re on the public dime (free speech doesn’t mean the govt must provide you a microphone) and under time constraints due to full dockets….

    To rephrase, society has limited resources to dedicate to correcting bad speech inside the courtroom, so we deal with the problem through censorship.

    But this rather begs the question: outside the courtroom, does society magically acquire unlimited resources to deal with bad speech? A moment’s reflection should persuade you that no one has unlimited resources. Conceptually, the problem of bad speech is the same, whether inside or outside the courthouse doors. We choose to treat the problem inside the courthouse doors differently because we feel responsible for harm that arises under government policy. But precisely the same harms happen all the time outside the ambit of government policy. The harms may be similar; the principle difference arises not from the degree of harm, but from the degree of responsibility we feel for avoiding the harm.

    The inherent problem with your construction is that it requires / assumes an objective arbiter of “good” vs. “bad” speech, ideas etc. (a real-life oracle?). I think of this as “the fallacy of omniscience”….

    Then you have misunderstood. Feel free to apply any standard of “bad speech” you like; the problem remains.

    The only way to avoid the conclusion that speech imposes externalities is to adopt the view that speech is harmless. And some people will tell me, “Stick and stones may break my bones, but names will never harm me.” These people are ignorant not only of MLK’s words, but of a lot of research on stress. I find the Dialogue with a Street Fighter more compelling:

    It hurts me when somebody puts me down . I can’t take that. If somebody hits me, I hurt. But the pain goes away after awhile. What doesn’t go away is when somebody puts me down, makes me feel like a damn fool. That never goes away. I can’t remember who hurt me last with their fists. But I got a whole list of people that I won’t forget.

    Obviously, *acting* in ways that harm people unjustly is an entirely different matter.

    Obvious – to whom?

    I suspect for the great majority of people, the most traumatic events of their lives have been as a result of speech. My wife is an extraordinarily productive and functional person, yet she lives in a perpetual state of stress due to even the smallest slights from her mother. I am not aware that her mother ever raised a hand against her; that’s not the point. My wife would be better off if her mother would shut up and simply steal our car or break my wife’s leg. Society sells insurance to cover at least part of these harms.

    Or my kid bitches at me. I’ll spend the next hours stewing about this injustice, the damned kid’s ingratitude and lack of respect, my failure as a parent, yadda yadda. Those are hours I’ll never get back. I’d have been much better off if my kid had simply tripped me; sure, I’d experience greater physical trauma — but much less cortisol.

    Perhaps you’re circumstances have been different. Perhaps you’re greatest traumas have come from physical abuse as a child, or a car crash, or an IUD. I don’t mean to minimize these harms. But I do mean to suggest that society generally acknoweldges these harms, at least to the point of providing the possiblity of remedy.

    In contrast, bad speech generally imposes harms for which our society provides no prospect of recompense whatesoever.

  66. 66 66 nobody.really

    Uh, let’s try that again:

    Perhaps your circumstances have been different. Perhaps you’re greatest traumas have come from physical abuse as a child, or a car crash, or an IED — that is, and improvised explosive device.

    Ok, perhaps you’ve also suffered as a result of an ineffective IUD, but that wasn’t really the idea I was going for.

  67. 67 67 iceman

    I never could find a good fit with IUDs, but the chafing was not overly traumatic.

    “Feel free to apply any standard of “bad speech” you like”

    But that’s the thing I guess I can’t understand…of course speech can be harmful, but we will apply different standards resulting in examples that do not agree and even directly conflict regarding “harm” – so what do we *do* with that? Who decides the “bad”? Your ideal remedy is not just impractical, it’s illusory. There’s a reason the founders did not recognize a right to not have to hear things you might find offensive (other than targeted injury from libel or slander) on a par with other liberty rights (that are impaired as a result of *actions*, like taking my property or my life). Importantly the speech issue was not viewed as subject to majoritarian solution either.

    Inside the courtroom, I agree with #64 the issues are more relevancy and source reliability rather than ‘quality’ or ‘correctness’ of speech, and in that context we have attempted to develop objective standards for which a judge can serve as arbiter. Consider the frequent use of dueling experts – assuming both cannot be right, one must be guilty of “bad” speech per your view? But even there we let the jury listen to both and decide.

  68. 68 68 nobody.really

    I never could find a good fit with IUDs, but the chafing was not overly traumatic.

    No matter how bad the fit with IUDs, don’t substitute IEDs. Trust me on this.

    Your ideal remedy is not just impractical, it’s illusory.

    Ah – here we agree. My ideal remedy is illusory indeed; I don’t see that I proposed one.

    I’ve hypothesized remedies – pre-publication injunctions for speech that arose from an illegal privacy violation, for example – simply to show how our treatment of speech in court (and by public agents) differs from our speech outside of court (and by private agents), even when the content of the speech is the same. But I didn’t mean to imply that pre-publication injunctions were generally a good idea.

    Rather, I’ve merely been arguing that free speech imposes expensive, and generally uncompensated, externalities — a fact we acknowledge when we regulate speech in the courtroom. My criticisms of free speech are akin to Churchill’s criticism of democracy: the worst system imaginable – except for all the others.

    So I embrace free speech, but I don’t fetishize it. The policy warrants constant, critical reappraisal. It’s our makeshift solution; the best system we’ve got for now, and for the foreseeable future — but not necessarily forever. And even if it is — even if mankind never devises a better social system than our current free speech norms — that’s no excuse for ignoring free speech’s harms.

    War imposes externalities too, yet I’m not a pacifist. But even as I acknowledge the need for war, I do so with trepidation and regret. I think this view is fairly widely held during times of relative calm — along with the collateral view that hawks who blithely spout bellicose talk while ignoring war’s “collateral damage” aren’t patriots; they’re assholes.

    Fewer people hold this view with respect to free speech and free speech absolutists. I think it’s a view worth considering.

    Finally – Who cares? What does it matter that I wring my hands over the externalities my choices generate while I continue to support those choices? Don’t know – but yes, I think it matters. As Judge Learned Hand observed,

    [Liberty] is the product not of institutions, but of a temper, of an attitude towards life; of that mood that looks before and after and pines for what it is not. It is idle to look to laws or courts, or principalities, or powers to secure it. You may write into your constitutions not ten, but fifty, amendments, and it shall not help a farthing, for casuistry [rationalizations] will undermine it as casuistry should, if it have no stay but law. It is secure only in that … sense of fair play, of give and take, and the uncertainty of human hypothesis, of how changeable and passing are our surest convictions, which has so hard a chance to survive in any times — perhaps especially in our own.

    (You didn’t think I’d complete this response without a quote, did you?)

  69. 69 69 iceman

    n.r. – I think under “bad speech” you’ve blurred *inaccurate* (in court) with *offensive*, so I don’t even see the double standard you do — in fact the latter can have important evidentiary value in court. As I recall the OJ team was more than happy to let the jury hear a full airing of Mark Furman’s bigoted statements.

    So while the broader point about the costs of offensive speech may be a bit off-topic, to me terms like “second best” and “makeshift” imply that one seeks (at least pines for?) a higher *attainable* ideal. I respond 1) there *cannot* be an objective universal standard of what is harmful (remember the Farnsworth McCrankypantses are people too), so I find this unlike say dreaming of a world without war; and
    2) a full and free exchange of ideas – among consenting adults – *is* the highest ideal we could seek. So I guess I don’t waste much time wringing my hands about the alleged costs of things cannot be improved upon (some just call such things “life”). Better to just embrace it!
    (If that sounds glib, I note you are also morphing this with verbal abuse of children which to me is categorically different, while in your example of a son’s language to you, I would suggest it’s not the words per se that are hurtful (they’re not “ideas”) but what they represent about the stage you’re at in the relationship, and if you could ban the language they’d find other (likely more destructive) ways to communicate those feelings.)

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