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?

I recall reading, long ago, an already-old sci-fi short story about a trial. The opposing counsels prepared a series of precedents and submitted them to a computer. The computer weighed the relative legal merits of each and threw out arguments from one side or the other, until one bedrock precedent stood, determining the outcome of the trial. Wish I could remember the name of the story or the author.

In the DVD model, a talented director could do wonders for whichever side hired her. It would put jury selection consultancy out of business, and do wonders for down-and-out film school grads.

The computer story is revealing, but it also runs together several different functions of trials. One is reaching correct results; another is explication of them; a third is modifying and extending the law to all of its interstitial gaps. I wonder whether the computer jurist would be acceptable to society if it didn’t point to the precedent it was relying on, but merely emitted a verdict as to which side won. And given that so many cases aren’t rigorously, logically determined by precedent, the explanation is essential much of the time.

In general, this is a decent idea.

But….

(1) It removes the ability of jurors to ask for clarification if a witness’s voice (or the recording of it) isn’t crystal clear. More importantly to me — as much of my “jury trial” experience involves courts martial and military administrative hearings — it removes the possibility for the jurors to themselves ask questions. I know that a lot of lawyers think that’s a bad idea; I don’t, because it enables the jury to reach a greater comfort zone of truth. (Too many lawyers, particularly in criminal proceedings, forget that the object of contested trial in particular is to reach truth, and only secondarily to “win”.)

(2) It’s going to be hellaciously complicated to adapt this to the hearing or visually impaired (who have the right to sit on a jury, too).

(3) Worst of all, it’s going to encourage more second-guessing of the evidence in appeals. That DVD is going to become the principal component of the record on appeal… and appellate judges are going to find it hard to resist the opportunity to sit as jurors, because they’ll have in front of them exactly what the jurors saw. Thus, appeals of jury verdicts will edge ever closer to the model for appeals of summary judgment motions, no matter how high-minded the rhetoric that will come from the courts of appeals. This will be a particular problem when a verdict appears to rest upon credibility of witnesses.

One result would be any legal team that could afford it would include a staff of cinematography consultants, makeup people, other experts in how to make sure video looks as favorable as possible to you.

Now certainly sufficiently capable legal teams already include quite a bit of resources targetted at looking good in court.

Would it make even worse to have it on video?

You’d have to try to let the adversarial sides have as LITTLE influence on the cinematography and editing as possible.

But now we’ve got motions about how the lighting was unfairly unfavorable to one client, or favorable to another. Or how the guy behind the camera is obviously biased in the way he frames the shots.

@ C.E. Petit: I agree with you on the appellate problems, but how would it be more difficult to adapt for visually/aurally-impaired than the regular court system? I’ve never been in court, but it seems to me that both systems (live jury trial and DVD trial) produce sound that a visually-impaired person can hear, and nothing such a person was unable to see in the DVD would be any more visible in a live courtroom. Likewise, it seems to me that an aurally-impaired person would need either to lip read or have a signer in court, and it would be no more difficult to have a signer on the DVD. Perhaps an advantage might be that close captioning would be possible?