Seeing and hearing the witnesses doesn’t make the jury more reliable


If we had a nickel for every appellate decision affirming a dodgy verdict with the excuse that “we decline to substitute our judgment for that of the jury which saw and heard the witnesses,” we’d have – well, a lot of nickels.

For some reason, it’s only criminal trial juries who are infallible lie detectors. We’ve never heard the Appellate Division express the slightest skepticism about jury verdicts in slip-and-fall, or fell-off-the-scaffolding, or only-got-a-two-million-dollar-divorce-settlement cases. We’ve even heard them utter the unthinkable phrase “irrational juries” about verdicts in civil cases. Criminal trial juries, in contrast, are not only rational, they’re clairvoyant.

If somebody wants to lie, they’re not going to go all shifty and stammering – they’re going to look you straight in the eye and firmly assert whatever they want you to believe. A cop is trained to exude an “air of candor.” So is a witness who’s been coached for hours in the DA’s office. Neither a judge nor a jury has any way of knowing from their “demeanor” whether they’re telling the truth.

The underlying fallacy is that judges and juries can unproblematically apply their “life experiences” to a criminal trial. But a trial isn’t life. In real life, you rarely base important decisions on nothing but the word of a total stranger. You might be able to detect suspicious demeanor if you know their usual demeanor, for example if they’re your partner or your 3-year old child. But of course neither your partner nor your child is cloaked in the presumption of innocence. On the contrary.

Criminal trials are based on the superstitious belief that we can read the minds of strangers, accurately fill in the gaps in the evidence and set aside our unconscious biases. And if you really want to get depressed about it, we recommend “The Limited Diagnosticity of Criminal Trials” by Dan Simon. (“Limited diagnosticity” is academic patois for “doesn’t work.”)

The article, citing a wealth of experimental research, shows that, from investigation to testimony to verdict, the trial process is based on assumptions about how the human mind works that are “frozen at the pre-experimental state of knowledge” (read: “backward and hidebound”). One of the most interesting findings for appellate squawkers is that seeing the witness’s demeanor is actually misleading and if anything, leads to a less accurate credibility determination than reading a transcript. Put that in your brief and smoke it!

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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1 Response to Seeing and hearing the witnesses doesn’t make the jury more reliable

  1. Henry Luepke says:

    The same is true in civil trials. In civil rights discrimination casa, The court instructs the jurors to find for the plaintiff if they “believe” the defendant, in engaging in whatever conduct the plaintiff is complaining about, “intended” to discriminate on the basis of whatever protected class the plaintiff can squeeze herself into. The defendant denies any such intent. Who knows? Why did the Defendant do what he did? Modern psychology and psychiatry- and ancient philosophy – all tell us that not even the defendant can explain the reasons and motives that lurk within the dark depths of his unconscious. His conduct is as readily explained by his birth order as it is by his biases.

    Yet, we allow juries to render potentially catastrophic verdicts based upon what defendant was “really” thinking. The law demands that 12 citizens off the street sit for a week or more as mind readers, to read the mind of some stranger to whom they’ve never said one word. Our appellate courts don’t dare touch the sacred word of these 12 savants. Our appellate courts are lazy. And stupid.


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