an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Malcolm Gladwell gave a great talk at a fundraiser for All Our Kin.
One of the ideas from his wonderful book, Blink, is that less information can lead to better decisionmaking.
This make sense in a variety of settings -- anonymous contributions which screen the contributor's identity can improve politicians' (including judges') decisionmaking.
anonymous auditions can improve philharmonic decisions.
But Gladwell also has an interesting application to juries -- maybe we should also put a screen between the defendant and the jury. There is no reason in the world that the jurors need to see a non-testifying defendant.
But we take this idea a step further. There is an interesting triangle in the court room made of of the defendant, the jury and the witness. Gladwell is clearly right that there is no reason why jury should see defendant. Even if jurors were trained to assess lying, the defendant has a constitutional right to remain silent and not to testify. But the defendant may have a right to see the jury. This suggests a one way mirror on this side of the triangle.
On the defendant-witness side of the triangle, I think we should have a clear unscreened line of sight. The defendant has a right to confront the witnesses – which is a right to see and be seen (harder to lie about defendant when witness has to look in eye).
As to witness-jury side of triangle, I think we should have a one way mirror that lets jury see witness, but no reason why witness needs to see jury. (witnesses aren’t supposed to play to the jury).
It would be interesting to try to convince a judge to experiment with this in a real trial in the appropriate case where real prejudice might be at stake to experiment with this idea. We might want to at least give the defendant the option to put up a one way screen (but there might be instances of intimidation where the prosecution could reasonable demand it as well. Posted
by Ian Ayres [link]
The triangle should be enlarged to include the prosecution and defense counsel. Consider the Michael Jackson trial. Let all hang out. In the blinks of the jurors' eyes, what do they see, what impresses them? Perhaps it is not the evidence but just being there, soaking in the scene. But does this result in justice?
"There is no reason in the world that the jurors need to see a non-testifying defendant."
So why have they for centuries?
Generally, there is a right for the public at large to view a trial. It seems strange that the jury would be exempt from seeing the defendant.
Also, a defendant blocked from view is suspicious. The jury wants to see who they are trying. This surely is a major reason why centuries of practice saw "some" reason for the jury seeing the defendant.
Finally, I'm not clear if more lawyers are crying for this right. If they did, I'd think would not make a big push for the defendant to be there. Does the defendant really help them much as they examine and cross?
Interesting post. Your focus on anonymity is important, but I think we could go further by taking a broader view of the word "information" in the sentence "less information can lead to better decisionmaking."
We get less information not only when we restrict our perceptions (such as by blocking the jury's view of the defendant), but more generally whenever we gain no additional insight or learn anything new from some perception.
For instance, if all defendants have to wear the same exact outfit and that is explained to the jury, then the outfit worn by a defendant will carry no information - and thus presumably should have the benefits to decisionmaking that Gladwell discusses.
One of the most commonly sited defenses of the on ban hearsay is that the jury can rely on demeanor evidence to helpfully evaluate whether or not a witness is 1) lying or 2) sincerely testifying, but incompetent. This is the point of Laurence Tribe 's triangle diagram of what constitutes hearsay.
However, several studies have questioned the value of demeanor evidence. One set of these studies suggests that people are better at detecting whether a witness is lying when they read a transcript of cross-examination, than when they witness it in person. Another set of studies suggest that demeanor evidence of no value when the witness is sincerely testifying but mistakenly as to their testimony.
While it might be the case that “Gladwell is clearly right that there is no reason why jury should see defendant,” but it might also be the case there is no reason the jury should see the witnesses.
[See Olin Guy Willborn, 76 Cornell Law Review 1075, for a basic overview of the literature. The studies Willborn sites are old, but not necessarily outdated. Additionally more recent studies have been conducted on the same subject, correcting for some of the flaws in the earlier studies and reaching the same conclusion. I don’t have a citation at the tip of my fingers, but I’m sure they could be easily found on lexis or westlaw.]