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What Books about Juries Reveal about Social Science and Law

Published online by Cambridge University Press:  27 December 2018

Marianne Constable
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Type
Review Section Symposium
Information
Law & Social Inquiry , Volume 16 , Issue 2 , Spring 1991 , pp. 353 - 372
Copyright
Copyright © American Bar Foundation, 1991 

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References

1 Judge Henry J. Friendly, as quoted in Kalven & Zeisel, 1971 rev. ed., 1976 printing, back cover.Google Scholar

2 The physical separation of the text of The Civil Juror (containing sections on method, subjects, questionnaires, data analysis, conclusions, appendices of survey questions, tables of analysis, and more) from that of The Jury in America also appears to be an effort to support this attempt.Google Scholar

3 See, e.g., Simon at 41, 123, 146; Kassin & Wrightsman, ch. 2 & 61–62, 108; Guinther at 64, 105; Hans & Vidmar at 129 (“the jury has not been shown, as a general matter, to be incompetent”); Hastie et al. at 230 (“Because jury performance of the factfinding task is so remarkably competent, few innovations are needed to improve performances”).Google Scholar

4 See, e.g., Max Weber, 1 Economy and Society, ed. Guenther Roth & Claus Wittich, 217–26 (Berkeley: University of California Press, 1978) (on legal authority). See also Max Weber, “Politics as a Vocation,” in H. H. Gerth & C. Wright Mills, From Max Weber: Essays in Sociology 79 (New York: Oxford University Press, 1946).Google Scholar

5 See H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), esp chs. 5 & 6.Google Scholar

6 Kalven and Zeisel themselves acknowledge some of the difficulties with their approach (chs. 3, 4, 38). Other writers have echoed them; see, e.g., Guinther at xvii-xxi.Google Scholar

7 See also Hans & Vidmar, ch. 10, “The War with the Law.”Google Scholar

8 Even far more sophisticated histories, such as that of Thomas Green, Verdict According to Conscience: Perspectives on the English Criminal Trial, 1200–1800 (Chicago: University of Chicago Press, 1985), in asking how it is that juries are allowed to nullify law, confirms that “law” is what the officials say it is. My point, again, is not that such accounts are incorrect but that in the construction of their questions, they make particular assumptions which, correct or incorrect, are worthy of thought.Google Scholar

9 See also Stanley Diamond, “The Rule of Law Versus the Order of Custom,” in Robert P. Wolff, ed., The Rule of Law 115–41 (New York: Simon & Schuster, 1971), for an argument that is, in some respects, similar to mine.Google Scholar

10 E. Allan Lind &. Tom R. Tyler, The Social Psychology of Procedural Justice 91–92 (New York: Plenum Press, 1988).CrossRefGoogle Scholar

11 See Friedrich Nietzsche, The Will to Power, ed. Walter Kaufmann (New York: Vintage Books, 1967), sec. 80, “Toward a Critique of the Big Words,” at 50.Google Scholar

12 Simon attributes this view to attorneys (at 41).Google Scholar

13 See Hans & Vidmar (at 92): “The particulars of the case will determine whether social science methods can be effective.” Kassin &. Wrightsman (at 62) claim that the questionable step in the argument that personality determines verdict is that personality determines attitude (not that attitude determines verdict). They suggest that with greater knowledge of “specific predispositions,” to some extent verdicts are predictable from general attitudes, although a verdict actually depends on the idiosyncrasies of a particular case (at 35–36).Google Scholar

14 Hastie et al, e.g., continue the passage cited in my preceding paragraph: At a minimum, each jury's evaluations of witness credibility, reasonable inferences from the testimony, and reconstruction and interpretations of the judge's summary of the law must be considered in order thoroughly to assess verdict correctness. For example, in the stimulus case, if a jury decided that all testimony from defense witnesses was false, a verdict of first degree murder could be acceptable. Yet, such an interpretation of the evidence would be very unconventional. For the most part, the exceptional, non-second-degree murder verdicts were associated with jurors' errors of comprehension and memory for testimony or the judge's instructions. (At 62)Google Scholar

15 The resemblance of this ideal to the conditions under which John Rawls's “people in the original position” (POP) come up with principles of “justice as fairness” bears further examination. (One might also mention in this context Habermas's “ideal speech forum.”) Rawls's approach has been criticized for assuming and/or arguing that principles of justice will result form the sort of agreement that risk-averse people ignorant of their own qualities and society would formulate; his approach is said to be formalistic in that it denies POP's knowledge of, and hence what makes them, who they are, which in turn is what gives meaning to discussions of justice. Although Kassin and Wrightsman avoid such a charge at one level, claiming that the jury is not a blank slate and that jurors' biases are to be overcome, excluded, or balanced out by others' biases, their understanding of what it is to be who one is (at 27–28) also appears somewhat empty of moral content.Google Scholar

16 For proposals to replace “common sense” with “social science, see, e.g., John Monahan 6k Walker, Laurens, “Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law,” U. Pa. L. Rev. 134 477 (1986); Walker, Laurens & Monahan, John, “Social Frameworks: A New Use of Social Science in Law,” Va. L. Rev. 73 559 (1987).Google Scholar

17 Donald Black, Sociological Justice (New York: Oxford University Press, 1989) (“Black, Sociological justice”).Google Scholar

18 Id. at 69–71. Black himself is cagey as to whether he “favors” such reform. As an advocate of “pure science” he affirms the distinction between science and policy, appealing to “evolution” and “nature” as the direction in which to go. His reduction of ought (law and justice) to is (evolution and nature), in the name of a distinction between ought (value) and is (fact), is part of the story of Western metaphysics. See Friedrich Nietzsche's “History of an Error,” in Twilight of the Idols 40–41 (London: Penguin Books, 1968). See also my “Sociological Justice and Jurisprudential Nihilism,” 11 Oxford Journal of Legal Studies 114 (1991).Google Scholar

19 Black, Sociological Justice 103.Google Scholar

20 See, e.g., Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979); Batson v. Kentucky, 106 S.Ct. 1712 (1986); and numerous law review articles on “the cross-section requirement” and “cross-sectionalism” in jury selection law.Google Scholar

21 In their second chapter, Kalven and Zeisel describe “the extent of the jury trial in the United States.” They move, in breathtaking fashion, in and out of a language of choice and decision, on the one hand, and of motivation, control, and determination, on the other. They first present the three factors “that determine the universe of jury trials”: law (“the availability of jury trial as a matter of right”) and two choices left open to the defendant (the decision to plead guilty and the choice between judge and jury trial) (at 14). As the chapter continues, it becomes apparent that the defendant's choices are themselves determined (at 19) and motivated (at 26), “affected by the odds” (at 20), and by other factors including advice of counsel (at 30). By the end of the chapter, “the selection of jury cases” is presented as “the result of an interplay of custom, economics, strategy, and game theory played by the defendant and the prosecutor” (at 30). This interplay is “in part informed by expectations of what the jury will do,” so that ultimately “the jury is not controlling merely the immediate case before it, but the host of cases not before it… to be disposed of by the pre-trial process” (at 31–32). Kalven and Zeisel recognize that the process does not stop here; to the extent that their study clarifies why and when judges and juries disagree, “it may through a feed-back process, modify the bar's expectations as to judge-jury disagreement and thus conceivably affect… the decisions on guilty pleas and jury waivers” (at 32 n.34).Google Scholar

22 For analysis of (mock) jurors' speech, see, e.g., Kassin & Wrightsman at 180–82; Hastie et al at 151–62. For an analysis that looks at how things are said, rather than what is said, see William O'Barr, Linguistic Evidence: Language, Power and Strategy in the Courtroom (New York: Academic Press, 1982).Google Scholar

23 See Williams v. Florida, 399 U.S. 78 (1970); Ballew v. Georgia, 435 U.S. 223 (1977); and masses of law review articles on the Court's use of social science research in these cases on jury size.Google Scholar

24 See Foucault, Michel, “Governmentality,” Ideology & Consciousness. 6 5 (1979).Google Scholar