David R. Henderson  

A Father's Day Tribute

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This tribute is to one of the two people without whom I wouldn't be a father: my daughter. (The other, of course, is my wife.)

A little over a year ago, on Mother's Day, my wife and I drove to San Francisco to have lunch with my daughter. She had just finished being on a jury for a one or two-week-long (I've forgotten which) trial. That was her first time.

I was impressed about everything she told us: how she didn't lie to get out of the jury, how she paid close attention to what was going on, and how, as instructed, she didn't talk about the case to friends or us during the trial. But two other things most impress me.

One was her keen powers of observation about an economic issue. This is what made me think that she would have been a natural in economics. She pointed out that when the jury pool was reduced from over 100 to 24, the person with the least amount of formal education was someone with an associate's degree. Everyone else had at least a bachelor's degree and many had graduate degrees, either Masters' or professional degrees. "What's that telling you?" she asked me, grinning as we were debriefing her. "That they were highly formally educated," I answered. "No," she said, "that's true, but it's telling you how expensive housing is in San Francisco. The high price of housing is pricing out people who are less formally educated, and we are the ones left." (Or words to that effect.)

The other thing that impressed me was the question she had the judge ask the defendant. He was a race-car driver clocked at 73 mph on a 35 mph road through Golden Gate Park. The police chased him and the big issue was whether, as they said, he tried to get away or, as he said, his car malfunctioned. There was pretty good evidence that it was the former, but Karen, my daughter, kept an open mind. The jury was allowed to write out questions and hold them up so the bailiff could pick them up and take them to the judge. The judge would then decide whether the questions were legitimate. All of Karen's questions passed muster. Here was the killer question, which came after it was revealed that the driver's friend had picked his car up the next day from the lot where it has been impounded:

Didn't you fear that the car might still malfunction and that, therefore, your friend might be in danger?

The defendant's answer: No.

That, plus the other evidence, cinched it for Karen to vote Guilty.

There's one other thing that impressed me about Karen and the other 11 jurors. Their straw vote at the outset showed unanimity but they spent a whole day making sure. One of their biggest concerns was this: Given that the guy was a race-car driver and there were no drugs or alcohol involved, was he really that much of a danger? I asked her if it would have helped her and some of the other jurors if they had been able to know the penalty the judge was likely to give. She said yes. But she followed the rules and didn't independently research the penalty.

By the way, the simple fact that she was on the jury is a great counterexample to a claim that co-blogger Bryan Caplan made in an otherwise excellent interview. At the 1:45 point of this interview, in making the case for private arbitration, a case that I entirely agree with, Bryan dumps on the jury system by saying that the 12 jurors are "too dumb to get out of jury duty." As my daughter's experience shows, there are some people who are probably smart enough to get out of jury duty but don't.


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CATEGORIES: Law and Economics




COMMENTS (20 to date)
Jon Murphy writes:

God forbid I wind up on the wrong side of the law, I hope your daughter is on my jury.

Paulo writes:

Good to hear but there is still something off when a race car driver wants to take it to the city streets but not pay the penalty when caught - so 12 people are forced to give up one or two weeks of their time and smarts to catch him out in his lame excuse.

From an economics point of view, there must be a more efficient way to call foul no?

David R. Henderson writes:

@Jon Murphy,
:-)

MikeP writes:

"...it's telling you how expensive housing is in San Francisco. The high price of housing is pricing out people who are less formally educated, and we are the ones left."

It could also be telling you that those with lesser educations were hardshipped out of the jury duty requirement -- which of course is also evidence of the high cost of living in San Francisco.

David R. Henderson writes:

@MikeP,
It could also be telling you that those with lesser educations were hardshipped out of the jury duty requirement -- which of course is also evidence of the high cost of living in San Francisco.
True, it could. Next time I talk to her, I’ll ask her if she recalls anything about the other 80 or so potential jurors in the original pool. My guess is that she didn’t get to find that out.

Mark Bahner writes:
True, it could. Next time I talk to her, I’ll ask her if she recalls anything about the other 80 or so potential jurors in the original pool. My guess is that she didn’t get to find that out.

The last time I was a juror (probably 10+ years ago) the way I recall it, there weren't many jurors allowed out on hardship grounds.

The case I finally sat for was a medical malpractice case. Interestingly, one of the jurors had a son who was clearly a victim of medical malpractice. I was very surprised that the defendant's (doctor's) lawyer didn't use a challenge to eliminate her. She ended up being the only juror to vote for the plaintiff.

P.S. I'm tremendously offended by the "too dumb to get out of jury duty" claim. I could have probably have gotten out by lying. But prospective jurors take an oath to answer truthfully. Also, I took as a personal moral obligation, since my situation is such that a couple days out off the office doesn't hurt me or my large employer.

Jacob Egner writes:

David Henderson:

>I asked her if it would have helped her and some of the other jurors if they had been able to know the penalty the judge was likely to give. She said yes. But she followed the rules and didn't independently research the penalty.

Do you think she should have tried to figure out the probable punishments? For instance, if the punishment were likely to be 60 years in prison, I would be very hesitant to vote guilty.

David R. Henderson writes:

@Paulo,
From an economics point of view, there must be a more efficient way to call foul no?
Yes. That’s why you might want to watch the Caplan video I linked to. It’s excellent.
@Mark Bahner,
I'm tremendously offended by the "too dumb to get out of jury duty" claim.
I reacted similarly, partly because of my daughter’s and, earlier, my wife’s experience, and partly because of the experience of others I’ve talked to.
Also, I took as a personal moral obligation, since my situation is such that a couple days out off the office doesn't hurt me or my large employer.
My daughter saw it as an obligation also, something I don’t agree with, but enjoyed hearing her say it.
@Jacob Egner,
Do you think she should have tried to figure out the probable punishments?
IIRC, this issue got tossed around during the jury’s whole-day deliberation. They worried about that. I don’t know how she would have figured it out.
For instance, if the punishment were likely to be 60 years in prison, I would be very hesitant to vote guilty.
Ditto me and, I’m guessing, my daughter and most of the other jurors.

Phil writes:

Knowing the penalty should have no bearing on the verdict. The jury's role is limited to being the "finder of facts." The facts do not vary based on the consequence of those facts.

Paulo writes:

@David

Yes, the Caplan video may have an excellent point with the privatization of courts. A private system would be unlikely to absorb the cost of the 12-24 person-weeks that your daughter's case took - so would definitely introduce loser-pays or other incentive not to bring weak cases.

David R. Henderson writes:

@Phil,
Knowing the penalty should have no bearing on the verdict. The jury's role is limited to being the "finder of facts." The facts do not vary based on the consequence of those facts.
Ok, so let me pose the following hypothetical. You are on a jury. You and the other jurors are all convinced that the defendant is guilty. He was caught smoking dope. You find out that the penalty for this offense is capital punishment. So you would vote Guilty?

MikeP writes:

The jury's role is limited to being the "finder of facts." The facts do not vary based on the consequence of those facts.

And that is why I would have to lie to get onto a jury in California.

Phil writes:

@ David,

Your hypothetical changes the purpose of the jury from being finder of fact to being dispensers of justice. That is not their role in the process and precisely why the judge tells the jury not to consider the punishment.

But since knowing the punishment is likely to sway a vote, a prudent defendant should consider waiving the right to a jury and have the judge be the finder of fact -- the judge already knows what the punishment will be.

MikeP writes:

A prudent defendant should consider being tried in Oregon, Maryland, Indiana, or Georgia since those states recognize in their constitutions the explicit right of jury to determine the law as well as the facts.

Not that judges in those states don't nevertheless try to hide this right from them...

David R. Henderson writes:

@Phil,
Your hypothetical changes the purpose of the jury from being finder of fact to being dispensers of justice.
No, it doesn’t. My hypothetical doesn’t do that at all. Indeed, I posed the hypothetical to you so that you would answer it. You didn’t directly.
That is not their role in the process and precisely why the judge tells the jury not to consider the punishment.
On the other hand, maybe you did answer it. If that is not their role in the process, then it seems that your answer is Yes, you would vote the dope user Guilty.

Phil writes:

@ David,

What you posed is an unrealistic hypothetical given the structure of our criminal justice system.

Playing along, if I did know the penalty was death, I would not be on the jury because I would have made my biases against the death penalty clear during voir dire. Especially if - in your hypothetical - death was the prescribed penalty for such a trivial offense.

If coerced into being on the jury with the knowledge of the penalty, and if my duty was merely fact-finding, I would choose to preserve the life of the defendant over doing my duty, presuming the penalty I am exposed to for violating my duties was something less than my own death in this abominable justice system you concocted.

Phil writes:

@ David,

And with respect to whether your hypothetical changes the function of the jury, I think you are wrong. You turned the question from: "did the person commit the charged offense?" to "is the subject offense something for which one should pay a particular price?"

Those are quite different questions with serious moral implications. One is an objective question of fact, the other is far more subjective. As designed, our criminal justice system puts only the first question in the hands of a jury, but the second is a question for the legislature and judiciary. Whether that allocation of decision rights is correct is an altogether different matter.

MikeP writes:

What you posed is an unrealistic hypothetical given the structure of our criminal justice system.

Unrealistic?

This is the same criminal justice system that prosecuted violations of the Fugitive Slave Act, asking juries to convict people solely for helping slaves escape bondage. Thankfully some -- we can only hope most -- of those juries refused to follow the law or the judge's instructions with regard to the law and did not convict the defendants even when the facts of the case were clear.

Indeed, the very history of the US criminal justice system carries the seeds of state recognition of the freedoms of religion and of the press in cases where juries refused to convict in clear contradiction of the court's instructions and the facts.

A crime is created by state legislators, investigated by state police, prosecuted by a state prosecutor, and judged by a state judge. In the entire process of convicting someone, only the juror does not explicitly represent the state and its interests.

That is a feature, not a bug. Effectively deputizing the jury to do exactly what the judge asks it to ruins that feature and is completely contradictory to the entire notion of a jury and its roots in common law.

David R. Henderson writes:

@Phil,
If coerced into being on the jury with the knowledge of the penalty, and if my duty was merely fact-finding, I would choose to preserve the life of the defendant over doing my duty, presuming the penalty I am exposed to for violating my duties was something less than my own death in this abominable justice system you concocted.
Thanks. We are on the same wave length here. By the way, voir dire would not have gotten rid of me because I’m mildly in favor of (or, at least, torn about) the death penalty.
So now let me post a different hypothetical. Now it’s another abominable, though less abominable, system than the previous one. The defendant was alleged to have smoked marijuana and everyone on the jury, looking at the facts, agrees that he did. There’s no death penalty. Instead, there’s a 10-year prison sentence without possibility of parole. You know that. Do you vote Guilty?

Mark Bahner writes:
Your hypothetical changes the purpose of the jury from being finder of fact to being dispensers of justice. That is not their role in the process and precisely why the judge tells the jury not to consider the punishment.

In the jury I was on--a medical malpractice case in NC--if we had found malpractice, we then would have been charged with recommending compensation.

We did not find malpractice, so the compensation issue did not arise. If the great Paul Newman movie, "The Verdict" is accurate, then for medical malpractice cases in Massachusetts, the jury also recommends compensation. (There's a great sequence at the end of the movie about that.)

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