Cross-posted from PrawfsBlawg
I’m not a fan of the jury system for any reason other than as a check on government power. Even leaving aside the jury’s fact-finding competence, it has a baleful influence on trial structure. Jury trial is concentrated trial: all the lawyers, witnesses, and evidence converge on the courtroom for a one-shot high-stakes live battle. Once the trial starts, there’s no going back to the reasoned deliberation of motion practice. Judges have to make evidentiary rulings on the fly; lawyers work themselves to exhaustion; jurors put the rest of their lives on hold indefinitely. And the pretrial stage swells to ridiculous proportions (especially discovery), because neither side wants to be caught unprepared for an unpleasant surprise at trial. Jury trial is an adversarial system in which the adversaries both operate under severe handicaps that make it hard for them to present their best arguments.
I asked my inner stoner about the role of the jury. He hates jury duty: he says trials are boring and it’s hard to bring weed into the courthouse. I told him that jury duty isn’t going away, not until we rewrite Article III and the Fifth, Sixth, and Seventh Amendments and their state equivalents. So he said, If we can’t get rid of the jury, can we get rid of the trial? I asked him to explain, and he said he likes watching movies, so put the evidence on a DVD and play that for the jury.
Under the trial-by-DVD system, pretrial motion practice wouldn’t just be directed at winnowing down the issues for a trial. It would actually produce the precise set of evidence to be submitted to the jury. All of the evidentiary rulings—every objection as to form and request to strike—would already have been aired and resolved. Then, and only then, would a jury be sworn in. A courtroom deputy would sit with the jury while they watched the DVDs, the judge would give them their instructions, and they’d deliberate as usual. The trial itself would be far more efficient without the sidebars and other frou-frou. Perhaps surprisingly, so would the pretrial. Instead of having to prepare for anything the other side could possibly throw at them, the lawyers would only need to respond to those things the other side actually did throw at them.
And that’s just the beginning. Stop thinking of the trial as theater; start thinking of it as a movie. The judge and parties would be able to edit the DVD tightly. If the plaintiff’s lawyer realized that a cross-examination hadn’t gone anywhere useful, she could just excise it from the testimony she offered. The parties could draw far more freely on documents, depositions, expert reports, demonstrative exhibits, and other sources of evidence to make their cases clearly, rather than needing to filter everything through someone in the witness box droning on endlessly. And the judge could easily issue appropriate rulings as the parties assembled their evidence, granting partial or total directed verdicts that narrowed or eliminated the need for a trial entirely. Think of it as picking up the logistical benefits of inquisitorial trial within a system that remains broadly adversarial.
Some states have experimented with the use of pre-recorded testimony. But, to my knowledge, none have ever used the opportunity of pre-recording to rethink from the start what a “trial” and a “pretrial” actually are. Given that our system treats them jurors as children who are to be seen and not heard, it’s not clear what real value there is in having them in the same room as the witnesses at the same time. If we’re committed to keeping the jury, why not use their time effectively?
Crazy, or so crazy it might just work?