So the jury saw and heard the witnesses – big deal.

Reprinted by permission of the Acme School of Law & Refrigerator Repair Law Review.

By Bambi Bramble, Professor of Critical Spot Welding and Ice Cube Tray Litigation.


Seeing [is] believing.  - P.T. Barnum

For their helpful comments, I would like to thank my research assistants, my colleagues at the Acme School of Law & Refrigerator Repair, my mother and father, my aunts and uncles, my building super and my 3 cats.  Dean Glitch’s snide comments were no help at all.

In this Article, I critically examine the 3.6 million appellate decisions that affirm convictions by saying, “We decline to disturb the credibility determination of the jury who saw and heard the witnesses.” For example,  a defendant is convicted of robbing a woman at gunpoint in a church. The woman’s story to the police was that he pushed her during an argument in a bowling alley.  She described him as six feet tall and a Swedish-speaking blond. The defendant is 5 feet tall and Chinese. On appeal, the defendant argues that the evidence didn’t support his conviction. The appellate court says, “We decline to disturb the credibility determination of the jury who saw and heard the witnesses.”

I propose to show that the assumption that juries can tell whether a total stranger is telling the truth is a cognitive distortion peculiar to appellate courts.

In the semiotics of cinematic representation, a lie is signaled by having the character hesitate, stammer and put on a shifty expression. In the semiotics of actual lying, the subject assumes a candid demeanor, looks you straight in the eye and forthrightly delivers some stunning whopper. Just like Dean Glitch at faculty meetings.

I will argue that this privileging of “seeing and hearing” is of contested legitimacy.  Millions of people saw and heard Hitler and believed everything he said.  Should we defer to their credibility determinations? Not that I’m comparing Dean Glitch to Hitler, of course.

In Part I, I trace the origin and history of courts’ purported deference to jury credibility determinations. I say “purported” because, when it comes to important matters like money settlements, courts have no hesitation about setting aside jury verdicts. See Behemoth Leviathan RR Co. vs. The Widow Jukes (1920). It’s only in criminal matters that the jury’s sense impressions become sacrosanct.

In Part II, I examine the heuristics of seeing and hearing, drawing heavily on the discourses of Foucault. That’s Darlene Foucault who empties the wastebaskets at night and tells me what goes on in Dean Glitch’s office.

In Part III, I sketch out a blueprint for reform which, as is customary in law review articles, concludes that the solution is to give judges more power. Which is what you have to say if you want tenure and your Dean is angling for a federal judgeship.

Part I. The phrase “We decline to disturb the credibility determinations of the jury who saw and heard the witnesses” first appears in an inscription on a ceremonial helmet in the burial mound of Sutton Hoo from 6th Century England.  Scholars have disputed the translation, however, arguing that it is actually, “the jury who saw and ate the witnesses.”

Deference to jury credibility determinations (when they convict, of course) became irrelevant during the Middle Ages, since these were made by throwing the accused into a lake.  A proceeding strikingly similar to how the Dean conducts faculty evaluations.

The concept resurfaces in Peabody’s Case (1679), when Justice Shallow commented, “Forsooth, we disturbeth not the faithful witnesse of the jury that didst perceive with its own eyes and hear with its own ears the defendant’s villainy, all being his cousins and inhabitants of the same village and well acquainted with the treacherous Peabody and his infamous deeds.”

Justice Holmes’s dissent in United States v. 99 Bottles of Beer on the Wall suggested a more subversive view of jury perception when he infamously commented, “Twelve imbeciles in a jury box is enough.”

Part II.  The doctrine of jury second-sight is conceptually distinct from that of judicial omniscience, which is self-explanatory.  After an eye-glazing Westlaw search (conducted by my research assistant who shortly afterwards dropped out of school to work in a parking garage), I could find not one single case explaining why a jury’s seeing and hearing the witnesses makes it an unreviewable judge of credibility.  Credo quia absurdum.

Part III. Scholars have noted the cognitive dissonance between the appellate courts’ automatic deference to jury credibility determinations and the same courts’ designated role as “the thirteenth juror.” Judges always instruct juries when they deliberate that no one should yield a conscientiously held belief just to get it over with and go home.  Yet, this appears to be the practice of Juror Thirteen.

In conclusion, appellate courts should protect the accused from irrational jury verdicts, just as they protect big corporations from irrational settlements. We support Dean Glitch’s  nomination to the federal bench and suggest the Western District of Outer Mongolia.

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
This entry was posted in Criminal Defense Appeals, Criminal law, Law & Parody. Bookmark the permalink.

6 Responses to So the jury saw and heard the witnesses – big deal.

  1. shg says:

    While devilishly humourous as always, do I detect a special element of well-deserved bitterness in this post?

  2. Danny Burn Out says:

    I love squawk! Long live the western district of Outer Mongolia!

  3. Right On says:

    Cool! Should we also let appellate courts vacate acquittals that are manifestly against the weight of the evidence?

  4. Got something against the western district of Outer Mongolia?

  5. Pingback: Anybody Want To Strike? | Lawyers on Strike

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