David R. Henderson  

Signaling and Jury Duty

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Inflating Away the Debt?... Inspiration from Ayn Rand...

A junior colleague of mine, Noah Myung, who holds a Ph.D. in economics from Cal Tech, told me the following hilarious story.

He was a math/econ major at UCLA and had just completed a course on game theory, taught by David Levine, in the winter of 2003. He got a notice requiring him to show up for jury duty. He showed up. The defendant in the criminal case was a man accusing of beating the c**p out of another guy. The defendant was present during voir dire. At some point in the questioning of Noah, the conversation went as follows:

Defendant's lawyer: If the defendant doesn't take the stand during the trial, would you hold that against him?
Noah: If he doesn't take the stand, it tells me something.
Defendant's lawyer: It shouldn't tell you anything.
Noah: But him not taking the stand signals me something.
Judge: You have to ignore the fact that he's not taking the stand. It doesn't signal anything.
Noah: But it does.

Then the judge and Noah go back and forth in this vein for a few rounds. Then:

Judge: If you're selected as a juror, can you ignore the fact that he's not taking the stand.
Noah: I could try, but subconsciously I know that he's not taking the stand. It tells me something. I can't suppress my subconscious thoughts.
Judge: Will you try your best not to be prejudiced.
Noah: I'll try my best, but I can't control my subconscious thought that he's not taking the stand.
Defendant's lawyer: You're excused.

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CATEGORIES: Economics of Crime



COMMENTS (14 to date)
Marcus writes:

Yea, it signals the prosecutor can probably run circles around him whether he's innocent or not.

Interestingly, when I was on jury duty I was asked by the prosecutor if knowing the defendent, who was accused of drinking and driving, refused to take a breathalizer if I thought that might mean he's guilty. She didn't use that exact wording of course, but that was the jist of what she asked.

I said no. She excused me.

przemek writes:

Imagine the very same conversation taking place between a teacher and his student's dad.

Douglass Holmes writes:

If an attourney choses not to place a defendant on the stand, that can mean many things. Among other things, it may mean that the defendant is easily confused by the arguments that the defense believes the prosecustion will make against the defendant on the stand. That is not the same thing as GUILTY.

przemek, your link is more problematic. If a student takes a precalculus course and passes it, shouldn't the student be ready for calculus? I recall that when my son went to high school, the teacher said that he had to get at least a C in Algebra in order to go on to Algebra 2. Doesn't that mean that a D is actually a failing grade? And if it is, then what is the difference between a D and an F? In my opinion, if a student passes a preliminary course, the student should be ready to take the next course. Otherwise, give the student an F.

TomB writes:

The problem is that if the Defendant takes the stand, it allows the prosecutor to bring up past crimes and some past bad acts. If the defendant says something like, "but if you asked someone, you would know that I am a very peaceful person." Well now the prosecutor can dig up people that say otherwise. By taking the stand, the defendant could allow the prosecutor to present info that is prejudicial. For example, if the D is a deadbeat dad, that doesn't mean he assault someone. But if the jury knows that the D is a deadbeat, they may be more likely to convict.

So not taking the stand may not be because the D is guilty, but because he does not want to allow prejudicial evidence into the record.

rmark writes:

I just wear a 'hang them all, let god sort them out' t shirt without the pseudo signalling argument.

dWj writes:

This is a single stage of a repeated game. I assume the large majority of defendants brought to court are guilty, but I want to make the prosecutor prove that, so they won't become more cavalier about bringing people they think are likely to be innocent to court. I'm less attached to self-incrimination rules, and I'm outright opposed to some admissibility rules, but I'm willing to free a guilty man if I think there's a long-term benefit to it. (I'm less eager to convict an innocent man for the same reasons, though. I haven't entirely worked out why.)

RL writes:

1. I don't know why David finds this anecdote "hilarious." It strikes me that his no doubt very intelligent colleague simply doesn't appreciate all the different signals not taking the stand might provide, not all of them signaling guilt.

2. As regards the calculus variant, I again miss the point. This might signal nothing more than a person who values learning over grades.

Ryan Vann writes:

Yeah, it signals that he is smart. No defendant should ever take the stand, if possible, and nobody should ever answer questions from the police. Even what seems like trivial matters could be incriminating, even if you didn't do anything.

David R. Henderson writes:

Guys,
I get the point. It can signal a lot of things, only one of which is that the guy's guilty.
Best,
David

Tom West writes:

Actually, I find this entire thread fascinating. The trouble is that the reality of testifying in one's own defense differs significantly from the intuitive reaction.

If i was similarly summoned, I'm not certain *what* I'd say. I mean yes, I understand there are solid legal reasons not to testify in one's own defense, but that's in direct contradiction with the social conditioning that indicates that anyone certain in their innocence will be willing to testify to that fact.

More importantly, I think the choice to exclude Noah was odd. The only thing that made Noah different from the other members of the jury pool is that he was self-aware enough to understand that he may well be influenced by this behavior.

*sigh* It's like so many things. The more I learn about law and justice, the less confident I am with the outcomes. Sometimes I think almost all of us need the illusion that while our corner of the world is completely screwed up and is massively inefficient, at least the rest of the world must work somewhat coherently.

RL writes:

The more interesting question would be what would have happened if Noah said something like "I am sufficiently well read in the details of actual police and prosecutorial conduct that I won't automatically assume they are telling the truth and not withholding exculpatory evidence." This is something easily said if one has spent more than 30 minutes perusing the work of Radley Balko, for example.

Noah's signaling concerns would be more reasonable if we lived in a polycentric legal regime such as described in Randy Barnett's The Structure of Liberty.

Jim Glass writes:

As a lawyer who's happened to just finish serving jury duty on a criminal case, I don't see anything humorous either.

As noted above, the reason why the defendant doesn't have to testify in a criminal case is that it can be extremely prejudicial against him.

Once he testifies his own character and honesty become an issue and the prosecutor can attack their credibility: "You never beat your former wife even once? ... you admit doing drugs in the past but expect us to believe you've stopped? ... you cheated on your taxes ... as a priest, you like little boys, right? ... so you are a liar, liar, liar..."

And that's for a defendant who is as pure and honest as an honest priest. If somebody actually has a criminal record, yowzzza.

It's the Constitution that gives the right against being called as a witness in one's own trial, remember -- and for a reason.

(What signal does an economist draw from the Founders' action there?)

In a trial, the evidence that goes to the jury is very limited, there are always reams of facts that are kept from the jury for various reasons, and from the jury's perspective there are big gaps of white space between one piece of evidence and the next.

But the jury's sworn duty is to reach a decision on the evidence before it -- and not on speculation, imagination, or "i'm so clever I know what the evidence we don't have really signals!"

So this prospective juror -- a PhD in economics! -- says he can't discipline himself to give a verdict based only on the evidence because he's so smart he knows how to read "signals" and just can't stop himself from doing so. How is he supposed to turn off his superior intelligence?

(Are economists equally quick to draw conclusions beyond the evidence and data in their own work?)

And this superior intelligence gets him excused from jury duty too, a bonus! It's only those dim folk who say they can stick to the evidence and be unbiased as per the rules who get stuck on a damn trial.

Ha, ha. Funny. If a bit full of ourselves.

Well, maybe someday he'll be before a criminal jury himself -- it happens -- his lawyer will warn him not to take the stand, but he'll insist on doing so lest the jury get the wrong signal from him. Then as the steel doors goes "clang" behind him he'll appreciate the humor in that situation too.

As a lawyer, I can read the "signals" in a courtroom probably better even than an economist could. But in deliberations I scrupulously avoid discussing them with the other jurors, and keep them out of my own mind except to the extent they are supported by evidence presented. (Economists lack such discipline, eh?)

I can get myself out of jury duty probably even more easily than an economist could too.

But to paraphrase Plato: when all the smart people game themselves out of jury duty so only dummies serve, and then a smart person finds himself facing a jury, who's going to be on the jury?

Kevin writes:

The funny thing is that the person who acknowledges his biases will probably do a better job deciding than someone who doesn't...

Michael writes:

>>In a trial, the evidence that goes to the jury is very limited, there are always reams of facts that are kept from the jury for various reasons

The witnesses are sworn to tell "The truth, the whole truth, and nothing but the truth"

But the judge chooses the jury and the set of facts that jury hears.

Why would any reasonable person make life and death decisions when they are set up to be manipulated?

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