A Radical Patterico Proposal: Doing Away With the Rules of Evidence (Or, Proof that Patterico Really Does Trust Juries)
There are some folks who think that I argue against jury nullification because I don’t trust jurors. Or because I have some vested interest in maintaining the system exactly as it exists.
Heh. They have no idea.
Maybe those folks will change their tune when they hear one of my pet ideas: doing away with the rules of evidence.
I say: let each side present anything they want. If it’s irrelevant, the jury will be insulted and punish the side presenting the irrelevant evidence. If it’s hearsay, or lacking in proof, the jury will discount it accordingly.
Under my proposal, in the Ed Rosenthal case, the jury would have been entitled to know that the defendant was growing marijuana plants for patients for medical purposes. Sure, it’s technically irrelevant to the charge, but hiding it from the jurors means that, once the trial is over, the jurors will feel like they’ve been lied to. That means they will be suspicious of the system in the future. And that hurts valid prosecutions.
We’d tell juries what the potential penalty is, how it compares with other cases, and how it’s decided. If a defendant were facing a draconian sentence if convicted for a minor offense, the jury will hear that. They’ll hear about it eventually. Tell them the truth beforehand so they don’t feel afterwards like they’ve been lied to.
But guess what? It cuts both ways — which is why defense attorneys would fight my proposal tooth and nail.
For example, the jury would get to hear about the defendant’s rap sheet, regardless of whether the defendant testified. Currently, that is considered prejudicial. Under my proposal, it’s always relevant. A defendant’s criminal history is always relevant to prosecutors — why not to jurors as well?
So if a defendant committed, say, first-degree murder with a gun in 1972, armed robbery in 1985, and has been to prison six times since for a collection of felonies, maybe the jury will understand why the law provides for (and the prosecution is seeking) a draconian sentence for a charge like possession of a gun by a felon.
Defendants also will not be able to pretend they might be facing draconian sentences when they’re really not. For example, defendants sometimes face only drug programs if convicted, but hope that jurors will suspect, quite incorrectly, that the defendant is facing a 25-to-life sentence. This strategy sometimes works. Because lawyers can’t discuss penalty or punishment, and jurors can’t consider it, jurors often conclude that a slam-dunk possession case is going to trial only because it’s a third-strike case. Defense attorneys love that, especially when the maximum punishment after trial is a drug program.
This sort of flim-flam operation would end under my proposal.
I’d retain the rule that juries are not to consider penalty or punishment in their deliberations. But since they sometimes do anyway, let’s at least give them evidence that will put their mind at ease.
If the defendant is a gang member, this would no longer be hidden from jurors. Currently, as a general rule, jurors do not learn about the defendant’s gang membership (unless there is a specific allegation that the crime was committed for the benefit of a criminal street gang — a technical allegation that cannot always be charged).
Under my proposal, jurors could learn that the defendant was on parole at the time of the crime — something that is typically hidden from them now.
Currently, jurors are almost never allowed to read police reports from the current case — and certainly not from other cases. Under my proposal, if the jurors want to read the police report — great! Here it is! Read it to your heart’s content. Once you do — and you look at a few police reports from other cases — you’ll see there’s nothing unusual or suspicious about this case.
That would help prosecutions.
Evidence seized in violation of the Fourth Amendment would be admissible. This would sharply reduce the possibility that police officers might testify falsely regarding probable cause. Similarly, all of the defendant’s statements would be admissible, regardless of compliance with Miranda. (I still think we would have to have a rule that involuntary confessions are inadmissible. But even without that rule, if the defendant can show a judge his confession was beaten out of him, he can probably show that to a jury as well, and the jury would rightly hold that against the police. Further, I would encourage the continued use of Miranda warnings with a rebuttable presumption that confessions are voluntary if Miranda warnings are given.)
The list goes on and on.
We’d have to change quite a few constitutional provisions and Supreme Court decisions to implement this fully. But the jury would no longer be kept in the dark about anything.
I think that’s how it should be.
And I think we’d get a lot more convictions if that’s how it truly was.
Frankly, in a huge majority of the criminal trials I’ve done, and that any criminal practitioner does, there are things hidden from the jury. In almost all such cases, the evidence is hidden from the jury’s view in order to protect the defendant. Yet when the jury thinks something is being hidden from them, they often blame the prosecution.
For example, cops see a bunch of guys standing on a street corner. They know they’ve arrested three gang members with guns on that block in the last month, and they recognize our defendant as a gang member. They figure he might have a concealed weapon, so they approach him to talk to him. (They’re allowed to do that, as long as they don’t issue orders to him.) They ask him if he’s on probation or parole, and he says he’s on parole for a previous conviction of being a felon in possession of a firearm. Because he’s on parole, the police can search him, so they do –and guess what? He has a concealed weapon. It turns out to be a match to a murder weapon used by other members of the same gang in a gang shooting.
Under current rules, you probably won’t hear about the recent gun arrests on the same block. You might never hear the defendant was in a gang. You probably won’t hear about the gun’s connection to another gang crime. You might never hear that the defendant was on parole. You certainly will never hear he is on parole for another gun case. So you’ll hear that police went to speak to him — and you’ll wonder why. Many jurors will conclude that the police approached the defendant because he’s black — therefore the cops must be racists.
This conclusion is harder to reach when you know all the facts. This is why prosecutors would love to be able to tell you about all the facts — so you don’t come to the wrong conclusion. But the system doesn’t trust jurors to properly use information such as the defendant’s gang status, or the fact that he was on parole. The system assumes jurors will convict automatically, as soon as they learn that the defendant is a gang member on parole. I don’t think that’s true. For example, when Michael Jackson’s past alleged molestations were ruled admissible, many said he was sunk, while I said that jurors would make up their minds based on the facts of the current case. I think jurors can take information like that for what it’s worth. But I do think it helps the prosecution when the jury gets to hear the whole picture.
Plus, it’s the truth. And it allows witnesses to tell “the truth, the whole truth, and nothing but the truth.” In the previous example, I wouldn’t have to instruct an officer, based upon a court ruling, as follows: OK, officer, you can say you approached the defendant, but don’t mention anything about his gang membership, or the other gun arrests you made, or about him being on parole. Officers follow these instructions, but I think such rulings from the court increase some officers’ contempt for the system, since they believe the jury isn’t getting to hear all the facts. And they’re right.
Again, jurors often suspect when something is being hidden from them. They just don’t know what it is. Let’s tell them everything, so that they don’t make incorrect assumptions.
I think doing away with the rules of evidence would result in better informed juries, less police perjury — and many, many more criminal convictions.
Any defense attorneys or prosecutors care to weigh in and agree or disagree?
P.S. If there are any defense attorneys or judges I work with who are reading this: don’t panic. I have my view about what the law ought to be, but I also recognize it for what it is — and I play by the rules. I might wish the rules to be different, but until they are, I’ll go with what we’ve got.
P.P.S. The most logical objection to this is that the lawyers could waste days with completely irrelevant evidence, like reading from the phone book.
One possible solution: give jurors the power to decide what they want to hear. Prosecutor says: my next witness is the victim of the crime. Do you want to hear from him? They can vote yes or no by a majority show of hands. Defense attorney says: I would like to read from the phone book for four days. Do you want to hear that? Again, jurors can vote yes or no by a show of hands. My guess: they’d vote to hear from the crime victim. They’d vote against the phone book, or the sixth cumulative witness.