No person...shall be compelled in any criminal case to be a witness against himself
-- The United States Constitution, 5th amendment
This past winter, my wife was called for jury duty. She served in a trial of a civil case, and her conclusion is that "It makes you feel more patriotic. Look. You could be living in Iran."
In March, I was called and served on a one-week criminal trial. I came to the same conclusion, but, as usual, it takes me longer to express it.
The charges in the case were first-degree assault (assault with intent to cause severe injury or death) and second-degree felony murder (death as the result of a first-degree assault). They stemmed from an incident that took place after a high school football game, in which the victim was beaten and later died from his injuries.
Of course, I did not know this when I received my summons for jury duty. There were 286 jurors sitting in the jury lounge, and about 50 of us were called to this particular trial. Among these, I had a relatively low number, which meant that I was very likely to be selected.
The judge starts the jury selection process by asking very general questions to the entire group of potential jurors about issues that might cause a juror to be excused from the case, such as knowing one of the attorneys or having had an experience that might cause the juror to have difficulty rendering an impartial verdict. A lot of potential jurors go out of their way to answer "yes," hoping that they will be excused. However, you cannot simply declare yourself unfit for a jury. You have to make your case privately before the judge and the attorneys.
In fact, although a few potential jurors were excused, at this stage the judge tended to maintain the presumption that the juror is capable of being impartial. Meanwhile, the attorneys get a lot of information from jurors who try to get off the case. This may make the attorneys inclined to excuse a juror -- or it could actually cause the attorney to want to seat a particular juror. If an attorney spots, say, juror number 26 as someone he wants to see on the jury, he may excuse a lot of potential jurors with lower numbers just to arrange it so that 26 makes it to the panel.
When I was selected, I got the sense that the defense attorney was really happy. After the trial, she explained to the jurors that prosecutors basically try to choose conservatives and defense attorneys try to choose liberals. She said that one of the indicators that they use is occupation, and that an engineer is more likely to be a conservative and a teacher is more likely to be liberal. She says that defense attorneys tend to avoid lawyers on the jury, because a lawyer will tend to try to pick apart the defense (my guess is that this is because the defense is often emotional, while the prosecution is more factual, and lawyers are trained to be more factual).
I suppose that when I filled out a form months ago, I listed my occupation as teacher, because of my volunteer work at a local high . That would have led the defense attorney to hope that I would be a liberal. When I discussed the case afterward with my daughter, she came up with the theory that the defense attorney guessed that I was Jewish, and Jews tend to be liberal.
Another juror later told me that she tried to be excused because of her radical, left-wing past. Presumably, the defense attorney was happy with her, too. What the prosecutors were thinking can only be speculated about.
Another jury member was a teacher from a parochial school. She turned out to be no friend of the defense.
The defense attorney admitted that jury selection is no science, but have lawyers heard of Google? If the defense attorney had Googled me during jury selection, then she would not have mistaken me for a Jewish liberal with a Moses Complex.
Jurors Choose Roles
Why does jury selection matter so much? Now that it is all over, I realize that it is because the courtroom is a drama, and many jurors make their decisions by choosing roles. Some jurors identify with prosecutors and take on a prosecutor role. Other jurors identify with defense attorneys and take on that role. In many criminal cases, it is difficult for jurors to identify with either the defendant or the victim. That was true in this case, in which the assailants and the victim were portrayed as violent street kids, who might have stepped out of the pages of Random Family.
Once a juror has decided what part he or she wants to play in the drama of the courtroom, the law and the evidence in the case become mere props. Unless the prosecution draws nearly all of the jurors into identifying with the prosecutorial role, the prosecution's arguments will prove futile, whatever their merits.
I suppose that conservatives are more likely to assume a prosecutorial role because, as George Lakoff pointed out, conservatism tends to be correlated with "strict-father" morality, while liberalism tends to be correlated with "nurturant-parent" morality. Strict-father morality emphasizes punishment to keep the child from stepping out of bounds, while a nurturant parent tries to focus on, well, nurturance, in order to encourage the child to achieve material and moral competence.
In this trial, the defendant was not the chief assailant in the assault. The main assailant, a friend of the defendant, apparently had a history of animosity with the victim, and they confronted each other in the street the night of the murder. In the context of the confrontation, the main assailant, an 18-year old, asked the defendant, a 17-year-old high school junior, for a small bat which he knew that the defendant usually carried. The defendant gave the bat to his friend. Moments later, the main assailant used that bat to strike his opponent in the head. The defendant, the main assailant, and others then kicked the motionless, prostrate victim, who was taken to the hospital and later died of the injuries caused by the bat.
The incident was broken up by a young woman who courageously got out of her car and yelled that she was going to call the police. Although the group ran, the woman and other witnesses were able to describe the main assailant, who was soon apprehended. Both the woman and her boyfriend, who was driving another car (the incident occurred between their two cars) were able to verify the identity of the suspect once he was apprehended. However, the prosecution made no claim that either witness could identify our defendant.
The prosecution seemed to spend an inordinate amount of time establishing the guilt of the main assailant, rather than providing information pertinent to the defendant's role. Afterward, the prosecutors told us that their only motive for taking this approach was to make us start from a baseline level of certainty about the main assailant's guilt. However, during the trial, a lot of the jurors wondered what the prosecutors were up to, and we brought up some of our hypotheses during deliberation (we called this our "break for gossip"). For example, I thought that prosecutors might have been creating an opportunity to put on the stand the two police officers who apprehended the murderer, because those officers were a black man and a white woman. My thinking was that this would be an attempt to get the jury to be more sympathetic to the prosecution, by giving jurors someone to identify with on the prosecution side. Putting the two witnesses on the stand -- the brave young woman and her boyfriend -- might have served the same purpose.
Another juror thought that perhaps we were participating in a sort of mock trial, in that the prosecutors were practicing making their case against the murderer. Regardless of their intentions, for most of the trial, nothing was presented that incriminated the actual defendant in the case.
There were no witnesses who were both willing and able to incriminate the defendant. However, we were told that when questioned by a detective in the community investigating the case, the defendant gave information that led to further questioning. This interview, which was taped, was not played to the jury or submitted as evidence.
Several days later, the defendant was taken into custody and brought to an interview room. There, he was formally arrested, charged, and given his Miranda warnings by that same detective. The defendant did not ask for an attorney or decline to testify. The detective interviewed the defendant, and under questioning the defendant admitted that during the confrontation his friend had said "Gimme the bat! Gimme the bat!" and the defendant complied. The defendant also admitted to kicking the victim once when he was on the ground.
The interview, including the reading of the Miranda rights, was recorded on video and entered into evidence in the case. It was shown to us in the courtroom, and made available to be viewed again during deliberations.
Based on this confession, the prosecution charged the defendant with aiding and abetting the assault (hence the first-degree assault charge), and therefore with second-degree felony murder. They also charged him with something called "depraved heart murder," which was a separate theory under which we could have convicted him of murder.
The defense attorney made no opening argument. Often she appeared to be hesitant and uncertain. She called one police officer by the wrong name, then caught herself. She would start to ask a question, and then brush her hand over her eyes and say "strike that" and ask something else. More than once, the phrase "Columbo act" popped into my head.
She called no witnesses, causing the trial to reach an abrupt halt in the middle of the third day. Her closing argument consisted mostly of telling us repeatedly that the defendant was a "mere boy." Although she suggested that the defendant was willing to say whatever the detective wanted because he felt intimidated, she did not insist that the confession was inadmissible. On the contrary, she urged us to watch the video again in the jury room and to pay attention to the teenage mannerisms and deference to authority of this "mere boy."
After 2-1/2 days of hearing evidence, we were given the case to deliberate. Assessing the situation at half-time (the trial was held during March Madness), one might have said that the prosecution's case consisted solely of the defendant's self-incrimination, and the defense case was feeble.
Our Secret Deliberations
Jurors enjoy strong protection from having to reveal what goes on during deliberation. Afterward, we can say as much as we want or as little as we want. I am going to reveal a great deal about our deliberations and about my own feelings, while trying to protect the identity of other jurors. I have not consulted with any other jurors in writing this article -- in fact I do not remember any of their last names, and I did not obtain any of their email addresses or phone numbers. I get the impression that they are willing to talk about the case, based on the fact that when the trial ended -- late on a Friday afternoon -- all of us remained and had free-flowing conversations first with the defense attorney and then with the prosecuting attorneys. My descriptions of other jurors' points of view should be taken solely as my speculations and perceptions, not as a definitive record or a verifiably accurate description of the views of anyone other than myself.
Once inside the jury room, one juror, although he was not a clergyman of any kind, asked our indulgence in joining him in a moment of silence. The Man of Faith, as I think of him, then composed a short prayer that was not exclusive to any religion.
Although I thought that I had understood the judge's instructions as he was reading them, he offered to provide us with a written copy, and when we were given one copy there was sentiment that all of us should obtain copies, so that was done. We began our deliberations by going over the instructions, but any hopes that they would provide definitive guidance were unfounded.
Part of the problem was the way that the instructions were formatted. The instruction about the charges used phrases such as "the defendant caused the death," but the defendant was not the one who hit the victim with the bat. Instead, the defendant was accused of "aiding and abetting," so that you had to say that what he did "aided and abetted" the causing of death. The instruction for interpreting "aiding and abetting" was on a separate page, which forced you to go back and forth between the pages, mentally cutting and pasting, in order to parse the instructions.
One juror, whom I think of as the Very Troubled Juror, kept coming back to the task of trying to combine "aiding and abetting" with the charges. We had to listen to her read out loud the separate pages and her synthetic combination of the pages. It was irritating by the third time, and over the course of three days she must have done it a dozen times. But to be honest, almost every time she did it, my perspective changed somewhat because of a nuance that I had missed before.
Another frustration with the instructions was that they were subject to differences of interpretation. For example, there was an instruction that the state had to prove beyond a reasonable doubt that the defendant's confession was voluntary. The instructions defined voluntary as not coerced, not threatened, and not induced. By that definition, I viewed the confession as voluntary.
However, the instructions then enumerated a list of considerations that the jury may take into account in determining whether or not a confession is voluntary. The seventh item in the list was the defendant's age, education, cognitive level, state of mind, and so on. To some of us, that made the issue of "voluntary" problematic. But how, if at all, could those considerations change one's view? Are you supposed to go "by the book," or should you use other considerations and "gut feel?"
The user-unfriendly nature of the instructions made our deliberations more protracted and difficult than they would have been otherwise. It added to the strain of what was already a stressful situation. I could not help wondering why the instructions were written this way, and by the end of our deliberations I had three hypotheses, or possible explanations.
1. The judge does not understand the needs of jurors, and he does not know how to write clear, user-friendly instructions.
2. The judge wants us to deliberate for days and have difficulty reaching a verdict. He was secretly cackling to himself sadistically as he wrote the instructions ("Bet they go back and forth at least three hours on that one. Oh, ho -- this one should really tie them in knots.")
3. The instructions are subject to input and negotiations from the attorneys in the case. This would cause the instructions to wind up looking like a committee document. Memoranda produced by committees are characteristically ambiguous, and ideas that are supposed to be logically connected can become physically separated in a collective editorial process.
I would have guessed that (3) was the most likely answer. However, my understanding now is that the judge does not really make up the instructions, for the most part. Instead, he usually chooses, from a set of pre-printed handouts, those instructions that he believes apply to the case. One can imagine a very thick binder that has on its pages every instruction that a judge might conceivably give in any possible case. Based on the charges and the way that the attorneys presented the case, the judge pulls out the relevant instructions. An attorney might argue about the inclusion of a particular instruction, and in rare cases may ask for particular wording. But what feels to a juror like a badly-designed or committee document is in fact like the proverbial Chinese menu. The judge places the order, and the jury receives the dishes, but it was not necessarily designed to be a coherent meal.
In my view, the instructions, particularly the ones to which the Very Troubled Juror kept returning, were almost impossible to sort out. I could imagine a lot of jurors simply giving up on interpreting the law and instead making a judgment based entirely on "gut feel." That is, rather than making a logical determination, a juror might say, "I feel like it was murder" or "I feel like it wasn't murder." In our case, I think we tried very hard to understand and follow the law. But we also honored our gut feelings, and I believe that it was right to do so.
The Parent Reflex
After we had done as much as we thought was productive to understand the instructions, we turned to the only meaningful evidence in the case, which was the video of the confession. I have a strong distrust of full-motion video with sound. Video is an excellent propaganda tool, because video engages your emotions at the expense of your cognitive function. It is very difficult to view any video with detachment.
At a cognitive level, the video of the detective and the defendant showed an incriminating confession, obtained by the book, without threats, intimidation, or promises. At an emotional level, it showed a teenage boy, in an awful mess, with no adult there to help him. He was polite, and almost endearing. The majority of jurors had children, and the main effect of the video was to trigger our Parent Reflex. In our particular courtroom drama, the role that many of us chose was that of the defendant's Surrogate Parents.
Incredible as it may seem, some teenagers are sweet and affectionate even with their parents. One of my fellow jurors had such a son. Not surprisingly, her Parent Reflex was extreme. Imagine being fortunate enough to have that type of son and then watching a video of another teenager, who theoretically could be your son, in a horrible mess, sitting with a detective, without you there to protect him. He needs you more than ever, and you are not there!
This juror, who I might call the Surrogate Mother, did not literally justify her views this way. She did not say, "I felt like I was the mother and I was not there." But she took on that role. She became desperate and frantic in her attempts to excuse and protect the defendant, offering implausible rationales for not regarding the bat as a weapon. Concerning the interview, the Surrogate Mother insisted that "I really think a parent should have been there! The detective should not have been allowed to question the defendant without a parent present! That was not fair." And that was one of her more rational arguments.
Another juror, who I might call the Surrogate Uncle, said, "He said it was self-defense, and if we're going to believe the rest of the video, then we have to believe that, too." In fact, the defendant never used the words "self-defense." At one point, he started to spin a story that blamed the victim for starting the confrontation from his car by reaching into the glove compartment to perhaps pull out a weapon. However, the defendant quickly and sheepishly abandoned this half-hearted attempt to construct an excuse.
The Surrogate Uncle said, "The video is not valid. Self-incrimination is against the law." That is an exaggeration. It is true that self-incrimination that is coerced, forced, or induced is a violation of the fifth amendment. However, there is no law against self-incrimination, as long as it is voluntary.
The Surrogate Uncle also had an explanation for the defendant's kicking of the motionless victim. "It was a war zone. Things like that happen in the heat of battle."
Because the Parent Reflex proved to be the deciding factor in this case, one would have to conclude that the defense was more effective than the prosecution. The prosecutors made no attempt to anticipate or to ward off the Parent Reflex, even though you would think that it would come up fairly often in serious cases where a juvenile is being tried as an adult. As far as the defense is concerned, I overheard some of the Surrogate Parents muttering that "The state didn't even get him a good lawyer." Thus, unintentionally or otherwise -- and my money is on "otherwise" -- the awkward-seeming conduct of the defense served to reinforce the Parent Reflex.
Did I mention that I, too, am a parent? I began to fantasize about what it would be like if the defendant could be sentenced to serve a short term and then given probation, the terms of which would move him to a different city and not allow him to have any contact with the older boys who were leading him down a violent path.
I am a nurturant parent, but part of my libertarian philosophy is that politics and parenting are separate functions and should not be confused. So this case tore me apart. My head was conservative, leading toward conviction. My heart was nurturant-parent, leading me toward acquittal. But I was not the only one having heart-vs.-head issues.
Denying the Undeniable
The state could have chosen not to charge the defendant with murder. My guess is that they were thinking that by including the murder charge they would make it easier for the jury to "compromise" on a guilty verdict for assault. However, this created an extreme form of cognitive dissonance for those jurors inclined to make such a compromise but who wanted to view themselves as logical.
As you would expect, there were many details of the fight that in retrospect were unclear or disputed. Did the victim start out in a car, and did he appear to reach in his glove compartment for a weapon, or was that all a made-up story? In reality, did the entire confrontation take place on foot? Did the defendant give the assailant the bat right before he swung it, or did he give the assailant the bat a few moments earlier, in which case the assailant must have stuck the bat in the back of his pants for those few moments? Did the defendant kick the victim only once, or multiple times? Did the defendant's kicks cause any serious injury?
Only one fact was undeniable. The victim was dead.
The Strict Fathers (i.e., those inclined to vote for conviction) felt that the defendant was guilty of first-degree assault but not of second-degree murder. No one bought the "depraved heart" murder charge, because the very name suggested that murder was in the defendant's heart.
One problem with finding the defendant guilty of assault but not murder stemmed from the definition. The second-degree felony murder charge requires exactly two determinations. First, a determination that the defendant is guilty of first-degree assault. Second, a determination that the victim died as a result of the assault. Once you find the defendant guilty of first-degree assault, in this case it follows as night follows day that you have to find him guilty of second-degree murder.
Ultimately, five jurors voted "guilty" on first-degree assault but "not guilty" on second-degree felony murder. In effect, although they never would put it in such terms, those five voted that the victim did not die.
Only one juror voted to convict on both counts, and she was crying as she did so. Although it was breaking her heart, she could not bear to deviate from the clear logic of the law. She refused to deny the undeniable.
I was basically torn between two positions. One was for acquittal on all counts. The other was for conviction on first-degree assault only. I was acutely aware that the second position entailed denying the undeniable, but I was prepared to live with it.
Although it was fairly clear where we stood, we did not formally state our positions until the morning of the third day. Unlike the previous day, we went around the room in turn. What follows is a coherent version of my speech (what I meant to say, as opposed to how I actually said it. Not that my points failed to get through).
First, I am proud to be serving with you on this jury. Everyone is putting their head and their heart into the process.
(I said this in all sincerity. All of the jurors, including the Surrogate Mother and the Surrogate Uncle, were very intelligent, thoughtful individuals. We did not all come to the same conclusions, but each of us arrived at a conclusion that was reasonable and well-justified.)
As I see it, there are four doubts that people have. Was it self-defense? Was he responsible? At 17, is he too young to be tried as an adult? Was his confession voluntary? Everyone who is unwilling to vote to convict has one of these doubts, or a combination of doubts. I don't think there are any other doubts.
I'm going to "out" myself. I am a conservative, but the kind of conservative that is called libertarian. Here is how I look at all these doubts.
I don't buy the self-defense doubt. I hold him to the standard of a normal, law-abiding citizen. He knew that there were school administrators around, and there were police just around the corner directing traffic. If a normal, law-abiding citizen thinks that someone is pulling a weapon out of a glove compartment, the normal law-abiding citizen runs toward the police and yells, "Help! Police!" The normal, law-abiding citizen does not say, "I'll give my friend a bat, so that we can defend ourselves against a gun or whatever the other guy has."
Next, we have the issue of responsibility. We don't know when he gave his friend the bat, but we know that it was at some point during the confrontation, and we know that he knew that his friend and the victim had a history of fighting. We know that he was young and a follower, and he was going to do whatever his friend told him to do. So when his friend said, "Gimme the bat," he was going to follow no matter what.
But we have to hold him to the standard of a normal, law-abiding citizen. A normal, law-abiding citizen, if he saw a friend confronted by someone with a history of animosity, would say, "Hey, man, settle down." You certainly would not give your friend a weapon.
And the bat was definitely a weapon. Yes, it's legal to carry a bat. But in some jurisdictions it's legal to carry a gun. But even if it's legal, when you carry a weapon you have a grave responsibility. You have to make sure that it is not used incorrectly. A normal, law-abiding citizen who for some reason chose to carry a bat would be expected to handle it responsibly. That means keeping it away from someone who is involved in a confrontation and is angry.
Does it sound ridiculous for me to hold him to the standard of a normal, law-abiding citizen? Why? Do we say that "they" cannot be expected to do that? Who is "they"? All black people? I know plenty of black people who are normal, law-abiding citizens. Poor, black people? My daughter has an African-American friend whose family was evicted from their apartment for not paying rent. That girl would never hand anyone a bat in a fight. I have to hold him to the standard of a normal, law-abiding citizen. I would hold a normal, law-abiding citizen responsible, and by that standard, he is responsible beyond all reasonable doubt.
I'll skip over the age issue. The only doubt that sticks me is the doubt over whether the confession was voluntary. I said I'm a libertarian. That means that I worry about the awesome power of the state. I want to limit that power. I worry about the awesome and terrifying power of the state when it is used to [I had a temptation, which I tried to resist, to insert a long litany here. As I recall, I limited myself to one example, but I do not remember which one. Collect taxes? Operate schools? Regulate Wal-Mart?]...and I worry about the awesome and terrifying power of the state when it puts an experienced detective in a room with someone who committed a heinous crime. And he did commit a heinous crime. But he is 17, not well educated, not very bright, and he came into the room thinking that he had been arrested as some sort of technicality to enable him to act as a witness.
We all know that if there had been an attorney there to advise him, he would have remained silent, and we would not be here. Do we give the benefit of the doubt to the awesome power of the state, or do we say that his fifth-amendment rights were not protected? The fifth amendment says something about no man may be compelled to testify against himself. That's where the Miranda rules come from -- they are one way to protect someone from being forced by the awesome power of the state to testify against himself. But you can't just say, "We did Miranda, that satisfied the fifth amendment." The instructions say that the state must prove beyond all reasonable doubt that his confession was voluntary. I have much more than a reasonable doubt that the awesome power of the state went too far in obtaining this confession. So I will vote to acquit on all charges.
I should point out that each juror made an impassioned statement, and many were far more eloquent than mine as I actually gave it (here, I have edited out the stammering, half-finished sentences, and other real-world flaws). At least nine people gave their speeches in a tone that indicated, "It would be a waste of energy to try to get me to change my mind." It was about 11:30 AM on Friday. We had been deliberating since Wednesday afternoon, with time off to go home, sleep (or not), and mull things through. In our minds, we were ready for one final round of "closing arguments," and then to vote. We got halfway through our last round of statements when an early lunch call forced us to break.
I should also point out that, whatever the power of my rhetoric, I had considerable qualms that I might be playing the role of Surrogate Supreme Court Justice. Is it my job as a juror to take a by-the-book Miranda rights reading and say that it is insufficient? Or should I just accept the fact that if the defendant's testimony was considered admissible, then his rights must have been protected? I kept poring over the judge's instruction, wondering whether I was taking too much Constitutional law into my own hands as a mere juror.
Given these qualms, I can envision a scenario in which I would have voted to convict. The scenario could have arisen as follows: Most of the jurors said that they would have been willing to vote "guilty" of second-degree assault, which could have been based on the defendant's confession of kicking the victim, but did not require drawing conclusions about what the defendant was thinking when he handed the main assailant the bat. Had this been a charge, and had it come to a vote, then I think I would have voted "no" once, in order to register my fifth-amendment issues. However, if I could not have persuaded anyone else, I would not have chosen to be a "lone holdout." It's everybody's Constitution, not just mine, and if I have a more aggressively libertarian interpretation of it, I can only take it so far. (My judgment that my fellow jurors were reasonable plays a role here. If I had decided that they were a bunch of clods with no understanding of the Bill of Rights, I would have been willing to hold out in this hypothetical scenario.)
Agreeing to Disagree
Sometimes, serving on a jury is a bonding experience. Under great stress, holding the fate of another citizen in their hands, the jurors become closer and behave as a unit. You would think that this would lead juries to gravitate toward one side or the other, and perhaps that is often the case. In our case, it produced a strong respect for differing opinions. The bonding showed up in our willingness to honor and respect the viewpoints of those who were headed toward taking a position that differed from our own.
After lunch we took the vote. All 12 voted not guilty for "depraved heart" murder. Six voted guilty of first-degree assault, with one of those also voting for guilty of second-degree felony murder (this is where she broke down crying). Six voted "not guilty" on all counts, in most instances based on a combination of the "four doubts." I stuck to my one doubt.
At this point, because only one or two jurors gave any indication of having a less-than-firm position, our foreperson sent a message to the judge saying, "we are not unanimous and both sides are firm." We expected the judge might try to ask us to deliberate further, but instead he said that, given how long we had deliberated, he respected our judgment.
With a hung jury, the case has to be re-tried. The judge set a new trial date, for August. This means that unless a plea agreement is reached, the defendant will remain in jail, since he was unable to post bond. All of the jurors believe that the defendant "did wrong" and deserves punishment, so few would question his being held. An additional consideration is that he may be at more risk if he is out on the street than if he is in jail -- one might speculate that there are friends of the victim who have a history of violence and a score to settle. However, the fact is that he is being deprived of his liberty without having been proven guilty of a crime, and conceivably he will never be proven guilty of a crime.
After de-compressing from the trial, my "Surrogate Supreme Court Justice" position on the fifth-amendment issues has become even firmer. I would like to see the Bill of Rights interpreted using first principles.
The folk beliefs about the fifth amendment are that accused criminals have "Miranda rights." We know from movies and television that "you-have-a-right-to-remain-silent-you-have-a-right-to-a-lawyer-and-anything-you-say-may-be-used-against-you-in-court."
Since the Miranda decision, the debate has been over whether the Miranda requirements are appropriate (the liberal point of view) or too restrictive on police (the conservative point of view). Based on my experience in this case, I would take the position that the Miranda requirements are not restrictive enough. We should do even more to protect the rights of the accused.
Going back to first principles, the Constitution says that no one should be compelled to be a witness against himself. To me, that means that there is nothing to stop you from making a confession and being the only witness in a case against yourself. However, that has to be a clear and conscious choice. If you choose to make a statement without an attorney present, then to me that seems exactly like choosing to represent yourself in court rather than use an attorney. That, too, should be a conscious choice.
I would say that the state's burden of proof should go beyond having to show that the defendant was read his Miranda rights and that he signed a statement to that effect. Based on my experience in this trial, with respect to confessions I would like to see jury instructions that include something like this:
For the defendant's statement to be considered voluntary, you must be satisfied that
1. The defendant clearly and completely understood the charges. The defendant does not need to understand why the state is making its accusations or the possible consequences of conviction, but the defendant does need to grasp the nature of the crimes that are given in the accusation.
2. The defendant made an intentional decision to speak in his own defense without the aid of an attorney.
In the case on which I was a juror, the defendant arrived at the interview with the detective thinking that he was a witness and that his arrest was a mere technicality. After the charges were listed, he leaned back in shock and asked, "How?," indicating genuine disbelief. In my view, it took a while for the reality to sink in. It was only much later in the interview, after he had signed the Miranda statement and revealed incriminating information, that he appeared to focus on how serious the charges were and how much trouble he was in.
Given the way that the interview unfolded, I do not believe that the defendant had the experience or presence of mind to realize that he needed an attorney present. I think that the detective should have said something that would have caused the defendant to consider the issue more carefully. Perhaps something like, "One thing for you to consider is whether you will want to represent yourself or whether you want to have a lawyer to advise you and to argue your case. If you do not have the money to pay for a lawyer, the state will supply you with a lawyer. Do you want a lawyer, or would you prefer to act as your own lawyer?"
In February on TCSdaily, Alex Knapp argued for professional jurors. He wrote,
"If you were on trial for murder -- or subject to a lawsuit that could deprive you of your freedom or of all your assets -- would you really want your fate to be decided by 12 people literally picked at random from off the street?
"...A jury that is trained in properly evaluating evidence is more likely to arrive at an accurate conclusion with respect to the trial's outcome. Additionally, professional jurors would be more familiar with the trial setting, and would accordingly be less likely to be confused or intimidated by the proceedings."
I agree with my wife, not with Mr. Knapp.
First, his proposal assumes that the law itself is clear and correct, and that what I have been calling "gut feel" only introduces noise into the system. But sometimes, as Dickens' Mr. Bumble put it, "The law is an ass." In our case, a professional jury, taking a logical, by-the-book interpretation of the law, probably would have convicted the defendant of murder. Not one of the twelve of us believed in our heart that this was the correct decision.
Of course, if the prosecutors knew that they were going to have a professional jury, they might have exercised discretion and mercy and elected not to charge the defendant with murder. But increasing the predictability of juries and instead relying on prosecutorial discretion hardly seems like an improvement.
Second, switching to professional juries would undermine our democracy, because it would exclude ordinary citizens from having the power that we had for our one-week trial. For one week, we could exercise the awesome power of the state. We had the power to convict or acquit, to act as Surrogate Supreme Court Justices interpreting the fifth amendment, or even to deny the undeniable. We are safer when such power is dispersed among amateurs than when it is concentrated in a group of professionals.
Serving on a jury keeps ordinary citizens in touch with the awesome power of the state. We see how that power is used, and such visibility serves as a powerful check against abuse of power. In fact, thinking about this issue has me reconsidering my views on the all-volunteer army. War, too, is one of the most serious manifestations of the awesome power of the state. A professional army is a more effective army, just as a professional jury might be a more effective jury. However, there may be something to be said for keeping ordinary citizens aware first-hand of how the awesome power of the state is wielded in time of war.
On the second day of the trial, before we were called in to the courtroom in the morning, I was talking with the Former Radical Leftist, and she said that she wished that we had a Canadian-style healthcare system. I bit my tongue, not wishing to appear disagreeable.
On the fourth day of the trial, as the jurors were firming their views, the Former Radical Leftist began ranting about the conduct of the prosecution (her view of the case ultimately was the closest to mine of all of the jurors). She blamed her inability to find the defendant guilty on the failures of the prosecution to make its case. "The state should have [done X], the state should have [done Y], etc."
Each time she said the phrase "the state," she spat out the words as if they were a profanity. Again I held my tongue, but it occurred to me that this could have been a "teachable moment" to point out that this would be the same state that would be running a Canadian-style healthcare system. In the end, I never said that, but I gently mentioned at lunch the next day that I disagreed with her views on health care policy, and that I have written a book on the subject. She asked questions and raised issues, and she said that she would look out for the book. If and when she does, I wonder if her experience on the jury will affect the way that she views the option of state-run health insurance.
Finally, if nothing else, serving on a jury brings important experiences to the jurors. Even though it can be argued that the Parent Reflex impaired our judgment, you still have to marvel at a system that takes twelve educated, mostly-affluent, mostly-white citizens, and for a few days turns at least some of us into the Surrogate Parents of one poor, badly-educated, African-American teenager. We agonized over what was right for him, prayed for guidance about him, lost sleep over him, and cried over him.
Does he have any sense of what we gave up of ourselves during his trial? My instinct says that he cannot possibly understand and appreciate the full meaning of our jury deliberations. Just as my instinct says that he could not possibly have understood and appreciated his rights under the Constitution during the detective's rote recitation of the Miranda warning.
(Note: A few weeks after this trial, Quatrelle Adedeji, the main assailant, was found guilty On April 7, 2006 of first-degree assault and second-degree murder.)
Arnold Kling is an adjunct scholar with the Cato Institute and the author of Crisis of Abundance, a book on health care policy, published by Cato.