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Wednesday, June 04, 2003
Trust me, I know what I'm doing
I happened to run across this post from last week, in which Dwight Meredith points out what he considers to be a major inconsistency in George Bush's attitudes towards juries:
George W. Bush has a perverse view of juries. Some people think that juries make essentially random decisions and have no trust in the accuracy of jury verdicts. Others, myself included, think that juries generally find the truth. George W. Bush is firmly in both camps.

While Governor of Texas, Mr. Bush showed an abiding faith in the unerring accuracy of jury decisions in death penalty cases.


Mr. Bush has much less confidence in the accuracy of the verdicts of civil juries. Mr. Bush has proposed that politicians and not jurors decide the amount of non-economic damages due to the most seriously injured victims of negligence.
On the surface, this does seem a little puzzling; why -- other than ideological politics -- would Bush be so eager to challenge one type of jury verdict but not the other? However, there's no necessary contradiction between these two positions which Mr. Meredith attributes to Bush. Civil and criminal trials, of course, have different burdens of proof. As such, it should theoretically be much harder for a jury to incorrectly convict an innocent person than for a jury to incorrectly find a non-responsible party to be liable.

That doesn't negate the validity of Meredith's observation that criminal defendants are more likely to have poor representation than high-profile civil defendants are. However, that observation is relevant only to the extent that the problem in each situation is one of jury error due to imperfect information. But that isn't the case; the issues presented aren't the same. With regard to criminal trials, the question we must confront is the accuracy of the verdict. With regard to civil trials, the issues Bush is raising (correctly or otherwise) are (A) the costs of frivolous suits regardless of the outcome and (B) overly generous damage awards. The latter is not a question of "accuracy"; indeed, the whole point is that there is no "correct" amount of punitive or non-economic compensatory damages (i.e., pain-and-suffering). 

A civil jury that awards millions to a woman for spilling coffee on herself (and spare me the ATLA propaganda about this case; I've read it, and it isn't convincing) is not making an inaccurate decision due to imperfect information; it is making a dumb decision based on emotion. Of course, one could argue that the same problem could present itself with regard to criminal juries, but (a) Dwight Meredith isn't making that argument, and (b) as I noted above, the differing standard of proof in criminal cases would (hopefully) make that less likely. Moreover, the situation is different precisely because there is a right answer in a criminal case. We ask the jury whether they're convinced that the defendant committed the crime; that's a question of historical fact. Whether the parents of an injured child suffered $15,000 worth of non-economic damage or $15,000,000 worth is inherently arbitrary, leaving far more leeway for the jury, providing more opportunity for a bad decision.

So, in fact, this "perverse" inconsistency that Dwight Meredith sees in Bush's views exists only if you accept his premise that the primary problem with jury verdicts is imperfect information correlating with the skill of the lawyers. Presumably Bush is not working from that premise.

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