ABlog

As I reflected on my jury duty, I noted the weird assumptions of the law. I had sneered at the ignorance of a prospective juror who declared stoutly during voir dire that he would want to know the backgrounds of accused and accusers, e.g. whether they’d been convicted of any crimes in the past. I live with a criminal appeals attorney. I knew that much this prospective juror would want to hear about couldn’t come into evidence. Now, however, I realized that I myself wanted to know the fuller story; I felt hobbled in my ability to make a judgment about the veracity of witnesses in what I would come to think of as a pure “point of view” case—a fiction writer’s dream, a juror’s nightmare.

1. Weird assumption number one: that anyone could evaluate the truth of sworn statements simply by observing the demeanor of the witnesses and hearing a few severely edited details of the events that led up to the alleged incident.

2. Weird assumption number two: that people who know nothing of the defendant, complaining witness, or anyone else involved in the events are the best (“impartial,” “objective”) deciders of the case. (When I made this observation to my attorney-partner, he pointed out that “a jury of one’s peers” was originally supposed to mean people who did have direct knowledge of the parties and events. A jury of one's village, not a jury of one's borough.)

3. Weird assumption number three: That The Law operates via the written word (so that the “transcript” eventually becomes the official and total truth of the case) but the jurors inhabit a specifically oral culture that makes them able to retain and weigh complicated testimony, and to comprehend and remember precise technical definitions of multiple crimes, without benefit of notes. (At one time several decades back, jurors in New York State courts were not permitted to take notes at all. Now this is allowed, but grudgingly. I distinguished myself as a complete eccentric by asking to exercise this option. I had to inquire several times about receiving a note pad, which was taken from me every time the jury left the courtroom until we began deliberations. Deliberating juries are, of course, at liberty to have testimony or the judge’s charge read back to them, but my experience persuades me it wouldn’t be all that easy to have this done as often as one might wish.)

I noticed that, in deliberations, my fellow jurors and I reasoned on the basis of our everyday experience, a procedure I found somehow moving, in addition to its being how we were instructed to proceed in arriving at a verdict. (I forget how this is phrased, exactly, in the judge's charge; I do remember we were enjoined to use "common sense.") (What, specifically, was moving? Partly the earnestness of the lot of us in trying to apply what we knew to wrestle with an intractable question about what might be termed the defendant’s and complaining witnesses ethical personalities as projected in their testimony. But also that The Law would attribute any value to our puny experience. The contradiction, of course, is enormous: we are supposed to use our common sense but only within the boundaries circumscribed by The Law, which contravenes common sense at many points; we are supposed to be impartial, but common sense is so very often anything but.)

I noticed that I enjoyed the pageantry of the courtroom. I enjoyed lining up like first graders on an outing, in the order of our numbers in the jury box. I enjoyed being Juror Number One. I enjoyed the ritual of the court officer knocking to signal that the jury was about to enter; later, I enjoyed hearing, “Court remain seated while the jurors are exiting the courtroom.” I enjoyed the drama of repetition at announcement of the verdict. I enjoyed being questioned, and delivering my responses, which I read off the sheet as though I might otherwise not have remembered: “Not guilty. Not guilty. Not guilty. Not guilty. Not guilty.” I enjoyed seeing the emotion on the face of the defendant, though I could barely look at him. I enjoyed my glimpse of the DA’s graphic dejection.

I noticed the profound incommensurability between The Law’s assumptions and procedures and the situation that was presented to us. I believe in the presumption of innocence. I believe that the burden of proof must rest with the prosecution. But…how often can the testimony of a vulnerable young person rise to meet that burden of proof? Given that physical and sexual abuse and other intimate crimes are by their very nature likely to take place in secret, out of sight of witnesses; given that the shame and stigma involved create pressure to leave out or change details; given that, on the other hand, the very welcome fact that The Law now takes abuse allegations seriously (sometimes) and thereby places potential power in the hands of anyone who, for whatever reason, might decide to bring false allegations of this nature (and the isolation of the one who claims to be the victim of such a crime is no longer so total as it once was, thereby lessening any old-fashioned confidence that a complainant would be most unlikely to make such allegations untruthfully)…given all this, how likely is it that The Law will work to refashion the balance of power in that terribly skewed space called the Patriarchal Family?

But here I noticed a fearful coincidence. The Law calls on me--calls on us all--to be impartial. But it was made by Men.