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The Case for Reasoned Criminal Trial Verdicts

Published online by Cambridge University Press:  20 July 2015

Richard L. Lippke
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Extract

Discussion in the paper focuses on instituting a requirement that juries in criminal cases make public the reasons for their verdicts. The nature of such a requirement is elaborated, as is the way in which defects in the reasons provided might serve as a basis for appealing convictions. Various arguments for adopting such a requirement are considered, as are objections to doing so. In support of the requirement, I contend that it would enable defendants in criminal cases to ensure that their procedural rights have been respected. Such a requirement can also be construed as a condition of the legitimacy of exercises of political power and as an implication of the right of each person to be treated with equal concern and respect. The main objections to such a requirement concern its possible interference with jury independence and the complications and inefficiencies appeals of reasoned verdicts would produce.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 22 , Issue 2 , July 2009 , pp. 313 - 330
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2009 

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References

1. There will also be cases in which juries reach inconsistent verdicts, either with regard to logically linked charges against a single defendant, or with regard to similar charges against multiple defendants all of whom seem equally implicated by the evidence. Inconsistent verdicts may leave no one happy but like verdicts in most criminal cases, are neither explained nor defended by juries.

2. See Ferguson, Pamela R., “The Criminal Jury in England and Scotland: The Confidentiality Principle and the Investigation of Impropriety” (2006) 10 Int’l J. Evidence & Proof 180 CrossRefGoogle Scholar; Goldstein, Abraham S., “Jury Secrecy and the Media: The Problem of Postverdict Interviews” (1993) U. Ill. L. Rev. 295 Google Scholar; Jonakait, Randolph N., The American Jury System (New Haven, CN: Yale University Press, 2003) at 273-74Google Scholar.

3. See Alschuler, Albert W., “The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts” (1989) 56 U. Chicago L. Rev. 153 at 218-29CrossRefGoogle Scholar, and Cammack, Mark, “The Jurisprudence of Jury Trials: The No Impeachment Rule and the Conditions for Legitimate Legal Decisionmaking” (1993) 64 U. Colo. L. Rev. 57.Google Scholar

4. See Muller, Eric L., “The Hobgoblin of Little Minds? Our Foolish Law of Inconsistent Verdicts” (1998) 111 Harv. L. Rev. 771.CrossRefGoogle Scholar

5. For skeptical discussion of both double jeopardy and the prohibition on prosecutorial appeals of acquittals, see Laudan, Larry, Truth, Error, and Criminal Law: An Essay in Legal Epistemology (Cambridge: Cambridge University Press, 2006) at 194–206 CrossRefGoogle Scholar. A limited modification of double jeopardy doctrine is proposed by Curtis, Justin W., “The Meaning of Life (or Limb): An Originalist Proposal for Double Jeopardy Reform” (2007) 41 U. Rich. L. Rev. 991.Google Scholar

6. There is now considerable empirical evidence about how juries reach their decisions, some of it suggesting that jurors are unwilling to adhere to the law or judge’s instructions when the outcome conflicts with their sense of what is fair or appropriate in a given case. See Devine, Dennis J., Clayton, Laura D., Dunford, Benjamin B., Seying, Rasmy & Pryce, Jennifer, “Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups” (2001) 7 Psychology, Public Policy, and Law 622.CrossRefGoogle Scholar

7. Chapman v. California, 386 U.S. 18 (1967). See also Jonakait, supra note 2 at 266.

8. Whether juries should be regarded as privileged for having heard the state’s evidence first hand is a matter of some controversy. See Oldfather, Chad M., “Appellate Courts, Historical Facts, and the Civil-Criminal Distinction” (2004) 57 Vanderbilt L. Rev. 437.Google Scholar

9. The Netherlands is one country where verdicts are explained, though the Dutch system is not one that uses citizen jurors; instead it relies on panels of professional judges to hear criminal cases. See Pizzi, William T., Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It (New York: New York University Press, 1999) at 94–97.Google Scholar

10. I draw here on Larry Laudan’s account of the presumption of innocence, supra note 5 at 89-98.

11. Of course, the criminal law of any given society may not in its entirety respect or appropriately secure the moral rights of individuals. However, I assume here that any recognizable version of the criminal law prohibits the most egregious sorts of wrongs against persons.

12. Alternatively, individuals can waive the right to trial and plead guilty, though whether a guilty plea should altogether eliminate the need for a trial is more controversial. In France and Germany, for instance, guilty pleas do not always preclude trials, though such pleas do tend to make trials more cursory. See Ma, Yue, “Prosecutorial Discretion and Plea Bargaining in the United States, France, Germany, and Italy: A Comparative Perspective” (2002) 12 Int’l Crim. Justice Rev. 22.CrossRefGoogle Scholar

13. European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6.

14. There has been a debate about whether the European Convention on Human Rights might at some point be interpreted by the European Court of Human Rights to require reasoned verdicts. See Auld, R., Review of the Criminal Courts of England and Wales (London: HMSO, 2001) at 168-72Google Scholar and Spencer, J.R., “The European Convention and the Rules of Criminal Procedure and Evidence in England” in Beatson, J., Hare, C.F.I. & Chance, C., The Human Rights Act and the Criminal Justice and Regulatory Process (Oxford: Hart, 1999) 57 at 60Google Scholar.

15. Consider in this context Alschuler’s argument that in the United States, at least, the courts will insist that resources be expended to ensure proper courtroom procedures but not to ensure that juries reach appropriate outcomes. See Alschuler, supra note 3 at 226.

16. See, for instance, Christiano, Thomas, The Rule of the Many: Fundamental Issues in Democratic Theory (Boulder, CO: Westview Press, 1996) esp. at 105–30.Google Scholar

17. The notion that trials are a “calling to account” of those charged with crimes is developed by Duff, Antony, Farmer, Lindsay, Marshall, Sandra & Tadros, Victor in The Trial on Trial, Volume 3: Towards a Normative Theory of the Criminal Trial (Oxford: Hart, 2007)Google Scholar. The authors suggest at one point (page 219) that a requirement of reasoned verdicts seems entailed by their account of the trial.

18. Famously articulated and defended by Dworkin, Ronald, initially in Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977) at 180.Google Scholar

19. As Dworkin, recognizes, for instance, in “What is Equality? Part 3: The Place of Liberty” (1987) 73 Iowa L. Rev. 1 at 7-8.Google Scholar

20. Remarkably, a majority of the members of the Supreme Court of the United States was not sufficiently scandalized by juror drunkenness or drug use of the sort alleged in Tanner v. United States, 483 U.S. 107 (1987).CrossRefGoogle Scholar

21. The possibility that a judge’s summing up of the law and evidence might serve as a surrogate for a reasoned jury verdict is discussed by Auld supra note 14 at 169.

22. See Alschuler, Albert W., “Implementing the Criminal Defendant’s Right to Trial: Alternatives to the Plea Bargaining System” (1983) 50 U. Chicago L. Rev. 931 at 997-99CrossRefGoogle Scholar.

23. This objection was suggested to me by Marcia Baron in conversation.

24. See United States v. Spock, 16 F.2d 165 (1st Cir. 1969)Google Scholar. For a limited defense of special verdicts, see Nepveu, Kate H., “Beyond ‘Guilty’ or ‘Not Guilty’: Giving Special Verdicts in Criminal Jury Trials” (2003) 21 Yale L. & Pol’y Rev. 263.Google Scholar

25. This rationale for not allowing juror testimony to impeach verdicts was first articulated by the U. S. Supreme Court in McDonald v. Pless, 238 U.S. 264 (1915) at 267-68Google Scholar, and has been reiterated by the Court on many subsequent occasions, notably in Tanner v. United States, supra note 20. See also Cammack, “The Jurisprudence of Jury Trials,” supra note 3 at 65-67.

26. Cf. Alschuler, “The Supreme Court and the Jury,” supra note 3 at 227.

27. Again, see McDonald v. Pless, supra note 25 at 267-68.

28. See Alschuler, Albert W. & Deiss, Andrew G., “A Brief History of the Criminal Jury in the United States” (1994) 61 U. Chicago L. Rev. 867 at 871-75CrossRefGoogle Scholar, and Jonakait, supra note 2 at 245-48.

29. For discussion of jury nullification, see Auld supra note 14 at 173-76; Matravers, Matt, “More than Just Illogical: Truth and Jury Nullification” in Duff, A., Farmer, L., Marshall, S. & Tadros, V., The Trial on Trial Volume 1: Truth and Due Process (Oxford: Hart, 2004) 71 Google Scholar; Brooks, Thom, “A Defense of Jury Nullification” (2004) 10 Res Publica 401 CrossRefGoogle Scholar; and Muller, “The Hobgoblin of Little Minds?”, supra note 4 esp. at 794-801.

30. Again, see Laudan, supra note 5 at 194-206.

31. Auld hints at this in his Review of the Criminal Courts of England and Wales, supra note 14 at 169.

32. However, there is considerable debate about how we are to understand “same crime” in double jeopardy law. See, for instance, Thomas, George C. III, “A Blameworthy Act Approach to the Double Jeopardy Same Offense Problem” (1995) 83 Cal. L. Rev. 1027.CrossRefGoogle Scholar

33. It is worth noting that there have been revisions in double jeopardy provisions in some countries that permit prosecutors to retry individuals, in a limited class of cases, for the same crime if “new and compelling” evidence is found that implicates them. See, for instance, “Double Jeopardy Law Ushered Out” online: http://news.bbc.co.uk/1/hi/uk/4406129.stm.

34. That the standard of review in United States’ courts is prosecution-friendly is widely accepted. See, among others, Alschuler, supra note 3 at 213-17; Findley, Keith A. & Scott, Michael S., “The Multiple Dimensions of Tunnel Vision in Criminal Cases” (2006) 2006 Wis. L. Rev. 291 at 348-54Google Scholar; and Jonakait, supra note 2 at 265-73.

35. Again, Alschuler’s contention that we lavish resources on trials while stinting on post-convictions remedies is relevant here. See “The Supreme Court and the Jury,” supra note 3 at 226.

36. See United States v. Powell, 469 US 57 (1984) at 65Google Scholar.

37. But see Muller, who argues that the equity argument is suspect, in part, because the state can, in fact, cite acquittals in urging the courts to assign longer sentences to those convicted of other crimes in multiple-count cases, in “The Hobgoblin of Little Minds?”, supra note 4 at 810-12.

38. Blackstone, William, Commentaries on the Laws of England (originally 1765 and 1769) (Boston, MA: Beacon Press, 1962) at 420.Google Scholar

39. See Jonakait, supra note 2 at 274, who suggests that a “sausage-making value” seems to be at work in the courts’ protection of jury confidentiality.