Behavioral Law: The Failure of Crowds (Part 1)

Trying to convince ordinary people that the U.S. criminal justice system is fundamentally flawed is no easy task. For one thing, the media and our entertainment culture convince us that the system is fair and that only guilty (or morally bankrupt) people get caught up in it.

One of the reasons that ‘police procedural’ shows on television are so captivating is that there is an edgy hero-vs.-villain theme interwoven within the plot of every episode. That is to say, the tenacious detectives and prosecutor are the good guys and the people they arrest and bring to trial are the bad guys (as are the attorneys who defend them). There is also the dangerous message that these defense attorneys exploit laws that are designed to protect individual freedoms only from malicious government actors who act in bad faith. And that same message seems to imply that when government lawyers bend or outright violate these legal safeguards meant to protect the rights of the defendant, their actions are completely justified because we all know that the guilty defendant is just trying to use those legal shenanigans to beat the system. As viewers of shows such as Law and Order, we get the impression that our legal system is stacked against the honest, prosecutors and that these players always act in good faith, preferring the unadulterated truth to an easy conviction.

But aside from popular culture, most Americans have the belief that there are simply too many checks and safeguards that prevent truly innocent people from getting into trouble. And chief among these safeguards is the all-important jury trial. Many people have a lot of trouble with the notion that 12 unbiased individuals could all somehow be wrong about a defendant’s guilt, especially given the high burden of proof that the government supposedly has to meet in order to convict. So it would seem that the jury trial system is specifically designed to keep innocent people out of prison.

This editorial series will argue the exact opposite point of view; the jury trial, instead of being the biggest hurdle to a wrongful conviction is the chief cause of it.

In doing so, Justice IQ will attempt to overturn decades of the conventional wisdom surrounding the vaunted constitutional right to a trial in which one is judged by a jury of his peers. The assertion that the jury trial paradigm is inherently compromised is an extremely uncomfortable notion. After all, the jury trial is supposed to epitomize the values of impartiality and equality in the context of the justice system, and a healthy properly functioning criminal justice system is the cornerstone of every democracy.

As it stands, the conventional wisdom is that the jury trial represents a breakthrough in political science. It was the key social technology conceived of by the enlightened men who created this Republic. In short, the jury trial is the pride and joy of American jurisprudence and vital to our way of life as a free society.

But there is a dark side to the jury trial — one that is rarely seen in TV shows or discussed in law school textbooks. And exploring this side will be the motivation for the next few articles in this series. By the end of it we hope that readers will be more knowledgeable about the dynamics of crowds, juror psychology, and how juries fail in practice, as well as what can be done to prevent systematic failure. Justice IQ will also propose a radically new conception of the jury trial that could potentially be adopted without threat to our sacred 5th amendment right to a fair trial.

Our first foray into jury trial failure will focus on a little-known, but profoundly important experiment conducted decades ago by a psychologist named Solomon Asch. It addresses the problem known as “conformity”.

Sherene G.

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