Sunday, March 3, 2013

Judgment without "facts"

A jury was unable to reach a verdict at a recent high profile trial of the wife of a disgraced ex-politician who had been accused of the obstruction of justice. The jury came in for much ridicule for the questions they asked of the judge while deliberating. The lawyer for the prosecution,

 “questioned whether the case could continue. “I don’t ever recollect getting to this stage in any trial – even for more complicated trials than this – and after two days of retirement a list of questions of this very basic kind illustrating at least some jurors don’t appear to have grasped it,” he said.”

I myself do not share the view that these were all silly or irrelevant questions, although one was somewhat funny and got a funny answer in return:

[Jury]: Can you define what is reasonable doubt?
[Judge]: A reasonable doubt is a doubt which is reasonable. These are ordinary English words that the law doesn’t allow me to help you with beyond reasonable written directions.

But my main interest is the jurors’ question that captured the headline in at least one daily newspaper:

[Jury]: Can a juror come to a verdict based on a reason that was not presented in court and has no facts or evidence to support it either from the prosecution or the defence?
[Judge]: The answer to that question is firmly no. That is because it would be completely contrary to the directions I have given.

But in assessing a situation we often rely on evidence that is not “factual” in the literal sense but may be factual in that it speaks to our faculties of judgment. It is absurd to believe that we do not frequently come to doubt whether someone is telling the truth simply by studying their body language, or the hesitation in the voice or because when we gaze into the eyes, there was something that jarred with the ‘factual’ story being told.

I myself have been a juror on two occasions and can testify that these, though not facts presented in court and do not constitute evidence presented by the prosecution or the defence, nevertheless play an important role in reaching a decision. I believe that, in addition to the evidence presented in court, my co-jurors used the same or similar signals in reaching our common verdict.

I have also asked judges whether, when presiding over a case, they use visual cues which are not facts presented in court to reach a judgment as to whether the defendant is innocent or guilty. They have always answered that it plays an important role. Of course in most such cases, the judge can leave the final verdict to the jury but there have been cases where the judge has disagreed with the jury. Somerset Maugham even wrote a very interesting short story about the consequences of such a divergence of views when the judge in a case meets the (acquitted) accused years later at a dinner party (I read it years ago and cannot now recall its name).

The final verdict must depend significantly upon whether a witness or the accused is telling the truth or lying and, in judging that, many factors besides the evidence presented in court come into play – in the form of signals that the brain receives and interprets but which do not constitute part of the body of evidence presented in court.

My point is that the brain is very good at picking up signals that do not constitute ‘evidence’ in the legal sense but are nevertheless vital in reaching judgment.

Nor am I saying something new. Everyone knows that we make judgments based on objectively non-factual but subjectively critical evidence, nearly every day.

Hence, to ridicule the jurors’ question given above is silly. It is indeed as silly as the statement attributed to Picasso, which I alluded to in a previous post, that when we love a woman we don’t start by measuring her limbs.” The truth is of course otherwise; we actually start by making very detailed, often nearly instantaneous but perhaps partially unconscious, measurements of a great deal before we fall in love.


Anonymous said...

Isn't this discussion missing the point of whether these cues help reach a CORRECT verdict? Rather than any verdict at all?

S.Z. said...

You are right, up to a point. We do reach decisions based on signals - some of which we may not even be conscious of - and there is no way of knowing whether these decisions and judgments are correct. I pride myself on being correct from such signals most of the time, but I have also been very wrong on occasions. That said, one must also remember that the "objective evidence" admissible in courts can also lead to incorrect judgments and decisions, as the numerous cases that regularly come up for review, even years after sentence has been passed, testify