Saturday, November 18, 2006

Jury duty and the presumption of innocence

I had the pleasure of serving on a jury a few weeks ago. As part of the jury selection process is something called voir dire where the lawyers try to suss out any points of view that the prospective juror might have that might make it hard for them to be fair.

In this particular trial, the defense's strategy more or less boiled down to trying to establish reasonable doubt (something they failed to do, as it happened) and thus the presumption of that the client is innocent played a large part in the defense's voir dire questioning.

To this end, at one point, the defense lawyer asked a prospective juror "is my client guilty?" The prospective juror gave the correct answer that no, because the case had not yet been proved (heck, it hadn't even begun). More specifically, the defendent is in fact innocent at this point because a guilty verdict has not yet been rendered, and he is not guilty prior to that point. This is, I suppose, what presumption of innocence is about.

But I would have answered this particular question differently. I would have said "most likely." I might have even added "I hope." Because while the defendent most certainly is entitled to the benefit of the doubt as to his guilt or innocence, the very fact that he sits in the defendent's chair is a result of some degree of vetting by the police and prosecutor and perhaps a grand jury as well. They believe they have a good case, or they wouldn't try the case.

In other words, a presumption of innocence very different from a likelihood of innocence, and the lawyer's question was ambiguous about which question (presumption or likelihood) he was asking about.

And it should be so. I'd certainly hope that a high percentage (80-90%?) of cases that make it to trial ultimately result in a guilty verdict. Much less than that and the prosecution is being indiscriminate about who it chooses to try, wasting a lot of time and money on anybody vaguely suspected of the crime. Much more than that and they're either not trying hard enough or the jury system itself isn't working. And ultimately the role of the jury can be viewed as keeping the prosecution honest (i.e., making sure they do the right thing and prove the cases) and making sure that none of the minority of cases where they put the wrong person on trial (or put them on trial for the wrong thing) gets through.

Does this view conflict with the objective role required of a juror? I don't think so, with one big condition: the fact that a defendent is very likely to be guilty must not be treated as a reason to think that the defendent is in fact guilty. Otherwise, you have circular logic creating a self-fulfilling prophecy whereby defendents are found guilty because they are likely to be guilty. It is for this reason that I believe jurors should ask themselves not only should they ask themselves if the case was proved, but also if this could possibly the exception case where the prosecution got it wrong.

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