Unanimous Juries and Other Complete Fictions

In which Donald Trump Learns the Law is a Human Institution...

Well folks, the jury is out in the first of Trump's myriad criminal trials. Twelve random New Yorkers, chosen by sortition, are about to make a historic decision. I expect that decision by Friday, likely sometime after lunch on Thursday or Friday, because we've entrusted this decision to twelve people who are smart enough to get a free lunch or two for their time.

I am a legal realist. Rather than focus overmuch on an idealized notion of what the law is expected to be, it's my belief that there's immense value in understanding the legal system as it actually is. The law is a human institution, interpreted and administered by humans. Before the verdict issues, and one side or another insists the whole process is rigged and the nation is doomed, I figured it was worth offering my opinion about why we do it this way.

Every Prosecution is Political

As I've watched the New York trial, what's most striking to me is how normal it is. I won't profess to be some old hand at the law, but I've sat through quite a few white collar trials, sometimes as one of the attorneys of record. The New York trial is historic indeed, but it has matched the cadence and flow of pretty much every white collar trial: the defense talked a big game about testifying but then caved at the last minute, spending the bulk of their time beating up on the prosecution’s star witness. The prosecution gave a bunch of long-winded press conferences at the outset then whined to the judge when the defendant tried to do the same thing. Entirely too much time was spent on the fine details of sex and legal advice...There were a bunch of courtroom sketches that made everyone look like distended imps. The prosecution's case took weeks. The defense's case took hours. All this is...pretty normal.

Figure 1: what is in all likelihood some humans

Really, there is nothing terribly historic about this prosecution, because it's my sincere belief that every prosecution is political. Prosecutors are, in the American system, political actors. They generally are directly elected or directly subordinate to someone who is. They get rewarded by the electorate if they charge and convict the right sort of crimes. They are fired or voted out if they suck at their jobs. It's a little hard to stomach the fact that Alvin Bragg or Fanni Willis are embodying the collective will of the people...but frankly it's a little hard to stomach the fact that Trump was as well. That's how democracy works: sometimes it's ugly, because people are ugly.

...because prosecutors are purely political actors, and because the system seems to be deliberately designed to insulate them from the consequences of their charging decisions, I don't actually find them very interesting to analyze legally: In the American system,  prosecution happens whenever a prosecutor thinks she can get away with it. A prosecutor will prosecute a crime if a jury will convict, a judge will sustain the conviction, and the voters will reward the effort.  

...that makes the jury far more interesting.

The Jury is Our Salvation...

Those familiar with my very short guide to criminal law are well aware that the jury is the most important part of the criminal justice system. Few cases go to trial, but in every case, every decision is made based on how the parties believe a hypothetical jury would react. A defendant will plead out if he believes a jury will convict him, a prosecutor will make a better offer if he doubts his ability to sell the case to the jury. In the United States every defendant, from an alleged murderer to a participant in an 12-man international money laundering scheme, to a small-time bike thief, has the right to throw their case to a group of people (usually but not always 12) who must unanimously agree that every element of the offense has been proved before a conviction issues.

It is *this* safeguard that saves us from every prosecution being *purely* political. If a charge really is a witch hunt, if there really is some innocent explanation, if this is all a huge mistake, presumably the defendant or her lawyers can talk one or two members of the jury into voting "not guilty." Conversely, if 12 (usually 12) random people from different walks of life can all agree defendant is a filthy criminal...well, in a democracy, that's probably the way it’s got to go. If you can't trust the absolute consensus of 12 random people (usually 12), who can you trust?

General Verdicts

One quirk of the American system is the general verdict. Under our system, juries don't have to give any accounting of WHY they decided a case the way they did. The jury (with a few exceptions) will make one legally-binding pronouncement in the course of its existence: "guilty" or "not guilty."

The jury has no obligation to explain which witnesses they found credible or incredible, or which evidence they considered or ignored: The jury is expected to watch the whole trial (however many week or months that may be). They are expected to listen attentively while the judge issues their instructions (however many hours that may be) and then render a verdict by simply all agreeing there is enough evidence to prove each element beyond a reasonable doubt,  or all agreeing there is not enough evidence. If they can't agree, there's a mistrial, and we do it all over again.

Why do it this way? It helps to understand (I think) that the law is not about maximizing ACTUAL fairness or accuracy, which of course we could never agree on. Instead, a verdict by a unanimous jury that applies its instructions precisely is a legal fiction, part of a system for creating decisions that APPEAR predictable, final, and fair. In such a system, it pays to have your ultimate decisionmaker speak as little as possible, so we don't spend years second-guessing and relitigating their decision. If the jury decides wrongly, we'll often never know why. They just issue a decision.

Unimpeachable Verdicts

An interesting meta-quirk here is that a jury's decision-making process in our system is very difficult to challenge, legally anyway. Under Federal Rule of Evidence 606(b), testimony regarding juror deliberations is generally inadmissible. A comparable rule exists in nearly every American jurisdiction. This means the legal system is completely insulated from evidence that a juror flatly disregarded the judge's instructions...or used spiritualist hunches rather than expert testimony to determine the verdict...even evidence jurors were "flying" on coke and booze through the trial and deliberations (no really, see Tanner v. United States).

From the perspective of the legal system, the jury is a black box: evidence and instructions go in, and a verdict comes out. Appeals can be founded on faulty instructions or erroneous admission of evidence, but not on what the jury does with either: What happens inside the black box is, from the perspective of an appeals court anyway, largely unknowable. There are a few very narrow exceptions, but generally speaking, you can't undo a conviction or obtain a new trial using evidence the jury was biased against you, scientifically illiterate, or blasted out of their collective minds on cocaine.  

The rationale probably is that if you could do that, everyone would do that, and every jury verdict would be endlessly scrutinized. The Tanner case, for example, didn’t concern a verdict where there was clear evidence that jurors were snorting rails of coke before trial began…just a case where one juror later claimed that happened long after the fact. In a world without Tanner, every verdict would be subject to the possibility of some revelation like this, even years later, by one juror who felt like messing with the system.

Pay No Attention to the Man Behind the Curtain

We know what goes on in the jury room, to some extent. In the Trump trial, the jury has already requested one instruction be read back to them, and to hear some testimony from an earlier part of the case. This strongly suggests at least some deliberation is going on, and that actual jurors in an important case are thinking carefully about their instruction and critical pieces of evidence. We know from mock trials that jurors often spend hours arguing over the meaning of works like reasonable or knowingly.

...unfortunately we also know from copious reporting that jurors can be pretty dumb. Jurors are glory hounds, cowards, and even occasionally, Trekkies. It's a wonder we trust them at all.

Unanimous Verdicts

And it gets worse. Jury instructions are COMPLICATED. The jury must unanimously agree that every element of an offense has been proven beyond a reasonable doubt. It's worth examining this requirement in detail as an example of how ambiguous and convoluted the whole process can be. (if you pay careful attention, you might find the solution to one of my harder legal hypos that stumped the AI a few years ago).

Let's start with a pretty simple example. A simplified version of Minnesota's third-degree burglary statute says "whoever enters a building without consent and steals" is guilty of third degree burglary. In a case in which Nicholas Cage is accused of stealing an original copy of the Minnesota Constitution from the Minnesota Historical Society, a jury would be confronted with three "elements", essentially questions they would have to answer:
1) did Nicholas Cage enter a building?  
2) did he do so without consent?
3) did he steal?

If the jurors can all agree these elements are proven, beyond a reasonable doubt, then Nicholas Cage may be duly convicted of third degree burglary.

Notice that they don't have to agree on much: six jurors might be pretty damn sure Nicholas Cage tunneled in through the basement of the museum. Six other jurors might instead be completely convinced he entered through a skylight. Five jurors might insist he stole a copy of the Minnesota constitution and a paperweight from the museum gift shop. Six jurors might have considerable doubt that he stole the paperweight, but be certain he stole a copy of the Minnesota constitution. Hapless juror number seven, the last remaining juror, might only be certain he took the paperweight. Is their verdict still unanimous? They all agree Nicholas Cage stole, but do not agree on WHAT he stole.

The general rule, operative in most jurisdictions, is that jurors don't need to agree on what MEANS defendant used to meet the elements of the the crime, but they must be unanimous that the elements were met at the same place and time. As one case artfully put it: the jurors are permitted to take alternative routes, so long as they all arrive at the same McDonalds...what the system strives to prevent is jurors arriving at different McDonalds.

...and in practice, this gets insane. Richardson v. United States concerned a case under 21 U. S. C. § 848, which punishes one who engages in a continuing criminal enterprise, defined (inter alia) as a “at least three federal narcotics offenses”. The government put on evidence that Richardson committed numerous drug crimes, far more than three, but the jury was specifically instructed that they need not agree on which three offenses Richardson committed…they simply had to agree Richardson committed three offenses. The Supreme Court held that was a reversable error, and granted Richardson a new trial.

…but in Minnesota we have a tragic case called Rucker. Rucker was accused of sexually assaulting multiple young girls over the course of several years, and charged under a statute that criminalizes the commission of "Multiple acts" of criminal sexual conduct (multiple, of course, meaning two or more). Multiple victims testified that Rucker abused them, multiple times each (more than 40 times in total). Rucker denied each and every incident...but the jury did not believe him. It's entirely possible that when the jury withdrew into their black box to deliberate, they did not necessarily agree on WHICH incidents of criminal sexual conduct Rucker committed...rather, they might have agreed that *at least two* had been committed. The Minnesota Court of Appeals found there was no unanimity issue here: “the prosecution here did not emphasize certain incidents, distinguish as to the proof of some incidents compared to others, or encourage the jury to find certain incidents were more likely to have occurred than other incidents, and appellant did not present separate defenses for each incident of alleged sexual abuse”. How can this be squared with the U.S. Supreme Court’s decision in Richardson? The answer is that these are two separate courts interpreting two separate statutes, which therefore have two separate unanimity requirements…but this gets us no closer to discerning a general rule: Does the right to a unanimous jury mean the jury should agree on every fact essential to a particular element of an offense?

If the answer is "yes" things can get a little pedantic. We can imagine a statute that criminalizes "using a firearm to carry out a robbery." Imagine a robber holds up a gas station where three clerks are present. One clerk reports the Defendant used a Ruger pistol. Another clerk reports that, no, Defendant used a Baretta. The third clerk reports that his friends are incorrect and instead Defendant used a Sig Sauer. Does the jury need to agree on which particular kind of firearm defendant used to carry out the robbery? Or do they merely need to agree that defendant used a firearm of any kind?

nfd, a friend from the Astral Codex Ten Discord, Proposed this alternative sketch of how all three witnesses could be correct. I felt compelled to include it in this post.

For those who insist on specific unanimity, we can get even more pedantic. Imagine the same scenario, but now he first clerk reports that defendant was armed with a nickel-plated revolver, the second clerk reports that defendant was armed with a silver-plated revolver, and the third clerk reports that defendant was armed with an old-fashioned brass revolver. Does the jury need to agree on which revolver?

nfd again proposed an alternative that I felt compelled to include

For those who insist on more general unanimity, things can get truly ridiculous. Imagine the statute punishes "using a deadly weapon to carry out a robbery", now there are six clerks, three report that defendant used a knife in the robbery and three others report defendant used a gun. We can easily imagine a scenario where six jurors believe defendant was armed with a knife, and six believe defendant was armed with a gun. Are these jurors unanimous in their belief that defendant used "a deadly weapon" when he committed the offense?

you knew he was gonna do it, folks…
These are not abstract questions, which is why I'm justified in taking this rambling road. Jurors in Trump's case must find, as one element of the offense, that Trump committed each of his 30+ acts of document falsification to cover up some other crime. That is an essential element of each offense that makes it felonious under New York law. New York claims the crime Trump covered up was a violation of Section 17-152, which itself requires "unlawful means." New York points to three possible "unlawful means" that Trump used to commit this crime (which he covered up using other crimes, at issue in this case):
1) Violation the Federal Election Campaign Act,
2) Lying on his tax returns,
3) Covering up other document falsification.

Do the jurors need to agree on which unlawful means Trump employed? Not according to Judge Merchan. Expect this to be a hot issue on appeal for Trump, if he is in fact convicted.

It's an interesting one, but I'm not exactly sanguine on its ultimate success: Rucker's jury didn't even need to agree on which acts of criminal sexual conduct he committed... just as long as they all agreed he committed more than one with the victims at issue. The use of “MEANS” in section 17-152 strongly suggests to me we are dealing with “alternative means”…but the fact pattern looks similar to Richardson, so you never know…

Why Are We Even Doing This?

Can we really trust these jurors to apply the instructions exactly, when even one instruction requires ten paragraphs of explanation and three awkward diagrams? The truth is that the system probably doesn't care whether the jury actually obeys its instructions: all that matters is that the instructions are legally correct and the evidence is properly supplied. After that, it's up to the jury.

It's actually quite easy to pick apart the jury system. The reason we keep it around isn't because it has some remarkable track record for accuracy. Rather, we resort to juries because every alternative is strictly worse:

We could have a judge decide which facts are proven. Then we'd be reasonably sure the decisionmaker applying the facts to the law knew the law correctly...but judges are (with all due respect) a little weird: they tend to be upper class, highly educated, highly conscientious, highly motivated individuals. Their standards for what constitutes reasonable care or recklessness are probably pretty far out of whack with the general population. More importantly: judges are already agents of our political system. Trump, for instance, would hardly be in a better position if he were being scrutinized by a New York judge, rather than a New York jury.

We could have an agency do it. Some kind of government truth commission or factfinding department. We could staff it with scientists and statisticians, whole bodies of white collar professionals...but our track record with agencies isn’t great. There's no reason to believe the government truth commission would be any more effective than the FDA or the ATF, and an agency would arguably be even more subject to capture by powerful interest groups than a judge would be.

We could perhaps have an AI do it. Of course, someone trustworthy would have to properly instruct the AI as to the facts elements of the offense, and we would have to speculate how the AI made its decisions in particular cases. Now we’re back to the same problem we have with juries, but the black box is worse: the AI’s decisions would be cloaked beneath layers of inscrutable mathematics. If we went this way, we would be handing our collective fates to an alien being that has no need to wait until after lunch to render a verdict. I'm not sure anyone actually wants that, and I'm quite sure anyone who disagreed with its decision-making would assume it was badly aligned.

Ultimately, someone has to decide this stuff. As long as law remains a human system, we are going to reach a point, in every dispute, where we toss the problem to a human decisionmaker to sort it out. The consensus opinion of 12 random yahoos in New York, chosen by sortition, seems as reliable as anything. 
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