The Jury's Rise as Lie Detector
Publication Date:January 01, 1997
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The jury's rise as lie detector. by George Fisher CONTENTS I. THE OR-DEAL AND THE JURY TRIAL: THEORETICAL PRELUDE A. Seeking Divine Sanction for Criminal Verdicts B. The Special Case of Capital Convictions C. The Reality Beneath the Illusion II. THE RISE OF DEFENSE WITNESSES A. Curtains Open: The Seventeenth Century B. The Act To Abolish Hostilities with Scotland C. The Treason Trials and the Treason Act of 1696 III. COPING WITH CREDIBILITY CONFLICTS A. Witness Competency Rules and the Rule of Bethel's Case B. Empirical Interlude: Criminal Trials in an Eighteenth-Century Court C. Alibis and the Problem of Unavoidable Conflicts IV. THE RISE OF DEFENDANT TESTIMONY A. The Downfall of Witness Competency Rules in Civil Cases B. The Downfall of the Prohibition Against Defendant Testimony in Criminal Cases We say that lie detecting is what our juries do best. In the liturgy of the trial, we name the jurors our sole judges of credibility and call on them to declare each witness truthteller or liar.(1) All hierarchies of rank, learning, and technical prowess give way in the face of this asserted power of common jurors to spot a lie: In most jurisdictions today, no trial judge may advise the jury that a witness has lied.(2) No psychiatric expert may comment on a witness's credibility(3) Rarely may a polygraph technician lecture to jurors about a witness's pulse and pressure, tension or temperature.(4) The job of lie detecting belongs to the jurors alone. Nor may we later, once the jurors have done their job of sifting truth from falsehood, review how they did it. In a trial process in which we hide so much of the law and evidence from the jurors, this they hide entirely from us. We do not leave our jurors wholly unequipped for this task of lie detecting. They come to court, as we so often tell them, with their common sense and may reject any evidence that defies it. Inside court, we give them three more lie-detecting tools: the oath, demeanor evidence, and cross-examination. Every witness must promise to tell the truth, face the jurors for their scrutiny, and endure the challenge of opposing counsel. If these tools are lacking, we do not put the jury to the task of detecting lies. Hence we usually do not ask jurors to judge the truthfulness of an out-of-court witness. But this general bar against hearsay is our only broad exception to the otherwise unqualified rule that leaves questions of credibility to the jury. Of course, many cases impose no particular burden on the jury's powers to ferret out lies. In many cases there is no conflict in testimony. In many others there is a conflict, but the jury is able to attribute it to mistake or misperception or memory loss. In many cases, however, two witnesses tell two stories that cannot innocently be reconciled. Here the jurors must call someone a liar--indeed they must call someone a perjurer. Still, at least in civil cases, in which the jurors must merely say which witness was more truthful, their task remains relatively simple. Criminal cases mount a starker challenge. If the defendant has taken the stand to refute the testimony of a prosecution witness, then the jury may not convict unless it is prepared to credit the accuser's testimony over the defendant's and to do so beyond a reasonable doubt. To be sure, it is not wildly uncommon for defendants to proclaim their innocence in the face of a freight train of evidence--and when they do, jurors may readily brand them perjurers as well as thieves. But there are many criminal cases in which we give the jurors no substantial evidence other than the oath of the accuser and the oath of the accused. In such cases, we put jurors to the intractable task of searching the faces and gestures of strangers for the signs of deceit. Our unguarded confidence that jurors are up to this task is the more remarkable for being so probably wrong. There is little evidence that regular people do much better than chance at separating truth from lies. We tend to rely on worthless clues and to misread others.(5) But although the jury does not guarantee accurate lie detecting, it does detect lies in a way that appears accurate, or at least in a way that hides the source of any inaccuracy from the public's gaze. By permitting the jury to resolve credibility conflicts in the black box of the jury room, the criminal justice system can present to the public an "answer"--a single verdict of guilty or not guilty--that resolves all questions of credibility in a way that is largely immune from challenge or review. By making the jury its lie detector, the system protects its own legitimacy. This error-erasing function of jury lie detecting disables other mechanisms that are supposed to guard against wrongful verdicts. It relieves both judge and prosecutor of their usual charge to evaluate the evidence before passing the case to the jury. At the motion for directed verdict, which is usually a chance for the trial judge to rid the system of a flimsy prosecution, the judge simply assumes the truthfulness of the government's witnesses and leaves the problem of lie detecting altogether to the jury.(6) Appellate courts refuse to revisit the jury's judgments of credibility. And prosecutors, who normally must assure themselves that they have probable cause to bring charges, are able to avoid any meaningful duty to screen out weak cases when guilt turns on a question of credibility. The sworn testimony of a named witness who is not obviously delusional is all the prosecutor needs to satisfy probable cause.(7) In the pages ahead I want to search out the source of this quiet confidence that the jury can answer all credibility questions. When and why did the system declare that jurors had the wisdom to arbitrate unvarnished credibility conflicts at criminal trials? To the question "when," the surprising answer is very recently. If we walk back a mere 140 years through the nearly 800-year history of the criminal trial jury, we find ourselves at a time when no jury had to choose between the sworn testimony of accuser and accused at a criminal trial. Not until the second half of the nineteenth century could accused criminals anywhere in the common law world testify under oath at their own trials. Defendants could tell their stories, but they could not swear to them, and a jury tom between two conflicting stories could choose simply to credit sworn accusation over unsworn denial. If we walk back another 160 years, we arrive at a time when no jury had to choose between the sworn testimony of prosecution and defense witnesses at a serious criminal trial. Not until the turn of the eighteenth century could accused felons call sworn witnesses. They could call unsworn witnesses, but a jury in doubt could simply prefer the sworn evidence. Walking back 150 more years, to the middle of the sixteenth century and before, we come to a time when only the prosecution could present any sort of witness at a criminal trial. Although defendants could speak, they were not sworn, and they could call no witness to speak for them. The juries that presided over the rump trials of these early years faced nothing like our modern conflicts of oaths. This thumbnail history suggests that the "why" question is somewhat more complicated than we might have anticipated. Before we can inquire why the system gave the jury the unbounded discretion to resolve credibility conflicts between sworn witnesses, we must first examine why the system in its early days sought to avoid such credibility conflicts altogether. The answer to both questions, I will argue, turns on the system's need for legitimacy--for public confidence in the accuracy of its outcomes.(8) In the early years of the criminal trial jury, the system sought to stake its claim to legitimacy primarily in the oath and in the perceived divine power of the oath to compel truthful testimony. The oath's central role demanded that the system avoid sworn credibility conflicts, because any such conflict would reveal in a visible and obvious way the oath's inadequacy to assure truthful testimony. Hence when the system first permitted conflicts in testimony to emerge, it did not permit sworn conflicts. This and other contrivances to avoid conflicts in oaths permitted the system to embrace an evidentiary presumption that all sworn evidence was truthful--a presumption that sounds distinctly alien to us, yet persisted in stronger or weaker form throughout much of the jury's history. In time, however, for masons I will discuss later, the system gradually had to release its grip on the oath as a source of legitimacy. As it did, it turned to the jury as an alternative. During the last several centuries of the jury's history, the system has committed ever more--and more intractable--credibility conflicts to the jury's black box. And the jury, in loyal support of the system's legitimacy, has issued crisp and impregnable verdicts. This Article tells the long story of the jury's slow coming of age as the system's lie detector at criminal trials. It chronicles the deaths of the old evidence rules that effectively withheld from the jury the task of settling credibility conflicts between sworn witnesses. Like the characters of many good stories, these rules led uneventful lives but suffered noteworthy deaths, touched by the intrigue of treachery and factional strife. I will emphasize two features of the evolutionary process. First, it was astoundingly slow. Despite the jury's attractiveness as a means of resolving credibility conflicts, the system displayed a remarkable resistance to change, an inertia of planetary proportions disturbed only by explosive events. Second, the most important of these explosions were external to the system. As a result, the evolutionary process was not principled, driven by a conviction that the jury can and should resolve credibility conflicts. Instead, the rule changes that most greatly expanded the potential for sworn credibility conflicts at criminal trials were products of political firestorms. In this sense, faith in the jury's powers of lie detection only followed the force of events.(9) Before I begin, it would be wise to say more clearly what I mean by the task of lie detecting. Although I hope to prove that the jury's formal and complete role as the system's lie detector is relatively new, I do not aim to persuade the reader that the thought processes of modern jurors are new. For as long as witnesses have made claims to juries about past events, jurors have had the power--and perhaps the inclination--to disbelieve those witnesses and to disregard what they said. In fact, the lie-detecting role of juries in past generations may have been much like the lawmaking role of juries today. Today we officially declare that juries play no role in making law. Yet not only do juries manifestly make law--witness the repeated refusals of Michigan juries to convict Jack Kevorkian of assisting suicide(10)--but many observers regard their power to do so as a fundamental part of our trial system.(11) In a similar way, I will argue that the ideology of the jury trial system at one time required the system to claim that the jury did not act as lie detector, even when the jury's power to make credibility determinations was fundamental to the system's just operation. Nor do I hope to prove that the task of lie detecting, as a larger, epistemological matter, has changed over time. At least one historian has sought to explain some of the developments I describe here as a function of the evolving way in which people in general--not merely jurors--have resolved conflicts among sources of information.(12) Although such an evolving epistemology may have played a role in the historical transformation of the jury's lie-detecting function, there are many reasons, which I will review in time, to think it did not. In any event, one can explain the jury's changing role without assuming complex changes in the way most of us think. Instead, I will argue that the jury's role as lie detector has grown in this somewhat formalized sense: The system has become more and more willing over time to declare that the jury--and not the oath--has the job of screening untrustworthy evidence from the decisionmaking process. We see the system's changing declaration of the jury's role in the gradual erosion of those evidence rules that had spared juries the task of deciding which of two competing witnesses lied under oath. As the system gave the jury ever greater authority to resolve conflicts between sworn witnesses, it thereby declared the jury to be the system's lie detector. It did so, I will argue, because it perceived the jury to be an ever more reliable guarantor of the legitimacy of the system's verdicts--and because it perceived the oath to be an ever less reliable guarantor. Whether juries in practice actually did anything different is largely beside the point, except to the extent that what jurors did might have reflected what the system declared they should do. In telling the story of the jury's rise as lie detector, I focus on criminal trials for both a principled and an accidental reason. The principled reason is that the task of lie detecting, at least in the modern setting, poses a far greater challenge in criminal than in civil cases. As I noted earlier, although a civil jury may resolve a credibility conflict by a mere preponderance of the evidence, a criminal jury (at least one that chooses to believe the government's witnesses over the defendant's) must settle the dispute beyond a reasonable doubt.(13) The accidental reason is that contemporary chroniclers, like legal historians, tended to find criminal cases more interesting--so, for better or worse, we simply know more about them. That is not to say that what we do know about the evolution of civil trials cannot shed light on this study of the criminal jury trial, and in the historical journey that lies ahead, I will from time to time incorporate insights from the civil side. That journey begins in England in the second decade of the thirteenth century. We start in England because the criminal trial jury emerged there. Later, as the jury moved with the English to America, I will broaden our focus to gather in events from both sides of the Atlantic. We start in the early thirteenth century because the sudden end of trial by ordeal in 1215 gave rise to the first jury trials. When the Church abruptly forbade priests to take part in the ordeal, European justice systems lost a trial mechanism that had served to reveal God's judgment on the guilt of the accused. In Part I, I will explore how the English sought to replace the divine legitimacy of the lost ordeal. I will argue that by staking its verdicts on the oaths of witnesses, the justice system found it could claim that the threat of divine vengeance assured truthful outcomes. Rules that permitted only the prosecution to call witnesses helped, in turn, to protect the legitimacy of the oath by guarding against the embarrassment of conflicting oaths. As this framework slowly broke down, the system began to tolerate certain kinds of credibility conflicts and to complicate the jury's lie-detecting task. Part H traces the first stages of this dissolution. The appearance of unsworn defense witnesses sometime in the sixteenth century gradually accustomed juries to conflicting stories, if not conflicting oaths. Then, at the very end of the seventeenth century, came a great lurch forward, the first sudden transformation of the jury's lie-detecting role. By two acts of 1696 and 1702, Parliament gave accused traitors and felons the right to call sworn witnesses. Suddenly, for the first time in the criminal jury trial's 500-year history, juries in serious criminal cases routinely risked having to resolve sworn credibility conflicts. Telling the story of this minor legal revolution will draw us into the vortex of the most violent political and legal storm of the age, which blew about the Stuart treason trials of the 1670s and 1680s and ultimately impelled Parliament to act. Even after criminal defendants began to call sworn witnesses, the system struggled to maintain the old order and to protect juries as far as possible from having to choose between competing oaths. Part III will examine how it did so. For at least a century and a half following the acts of 1696 and 1702, several wide-ranging rules of evidence helped to prevent sworn credibility conflicts at trial and to protect the old presumption that all sworn evidence was true. Among these was a broad series of witness competency rules that barred whole categories of witnesses--those thought most likely to lie--from testifying. An evidence rule of narrower application advised juries to reconcile conflicting testimony in a way that would avoid branding any witness a perjurer. Little known today, this rule of Bethel's Case(14) amounted in practice to an admonition that juries should call one witness mistaken before calling either witness a liar. These rules worked side by side with others to protect juries from the task of separating truthteller from liar. Taken together, they betrayed the system's continuing anxiety over the jury's emerging role as lie detector. Part IV recounts the nineteenth-century demise of many of these rules and the resulting rise of the jury as the full-fledged arbiter of credibility disputes. The last and by far most important step in this progress was the end of the rule that barred criminal defendants from testifying under oath. Defendants are, after all, the most prolific witnesses on their own behalf,(15) and they are for obvious reasons the most likely to lie. Once they won the right to testify under oath, the average jury in the average criminal case could expect to confront a credibility conflict that would require it to declare one of two sworn witnesses a liar. In 1864, the unlikely state of Maine became the world's first common law jurisdiction to take this transformative step, and a host of mainly Northern states followed. The search for the triggering force behind this North-first burst of modernizing activity will lead us into a far greater historical firestorm--the clash between North and South over the legal status of African Americans. The North's decision to grant criminal defendants the right to speak under oath proves to have been, in part at least, one tactic in a very separate battle about the right of freed slaves to testify in Southern courts. Without such massive external jolts as the Stuart treason trials and the American Civil War, the force of legal inertia might have delayed for decades the jury's progress toward its distinctly modern role as lie detector. Yet there is no question about the direction in which legal evolution was carrying the jury: By some sort of a historical one-way ratchet, the lie-detecting power of the jury has grown consistently and has never, for any sustained period, diminished. In Part V, I will try to explain the forces that dictated the forward direction of the jury's evolution as lie detector. I will suggest that the answer has much to do with the problem of legitimacy and the reduce hard questions to clear answers that the public will accept. For this task, the jury's black box has an undeniable allure. Now, however, we must begin at the beginning. Part I therefore returns to the jury's earliest years, where we may hope to find the roots of the criminal jury trial's later devotion to the sanctity of a witness's oath. I. THE ORDEAL AND THE JURY TRIAL: THEORETICAL PRELUDE Although the jury's origins lie hidden in Dark Ages rituals, we can trace the origins of the sort of jury that concerns us here--the criminal trial jury--with something like pinpoint accuracy: The first true criminal jury trial seems to have taken place at Westminster in 1220.(16) Juries had long acted to resolve various civil disputes, especially claims about land, and they had for decades served as accusing bodies in criminal cases in the manner of modem grand juries. But not before 1220 did a jury sit in judgment of a criminal accused with the discretion either to acquit or to condemn. The occasion of this sudden birth of trial by jury was the sudden death of trial by ordeal.(17) Before 1215, criminal trials had proceeded by ordeal or by battle. In the ordeal of cold water, the accused was tossed in a pool with a rope tied around his hips. If he sank, he was hauled out an innocent person, for the purity of the water had accepted him;(18) but if the water repelled him and he floated, he was condemned. In the ordeal of hot iron, the accused walked barehanded with a hot iron bar. Three days later, when her bandages were removed, her healing hands revealed her fate: if the wounds were healing cleanly, she was absolved; if corruptly, condemned.(19) In all events, the judgment was God's. But in 1215 the Church forbade priests to officiate at ordeals and suddenly stripped these rituals of their divine imprimatur.(20) English and other European justice systems soon abandoned the ordeal in criminal cases.(21) Though the Church took no action against trial by battle, that form of trial lacked the popular support needed to fill the role of the lost ordeals; too often, combat between accuser and accused ended badly for a worthy but weak litigant.(22) Moreover, it was not always obvious who should do battle for the prosecution.(23) Criminal justice systems throughout Europe, therefore, suddenly sought a new form of trial.(24) In the familiar history of these events, the English turned to trial by jury, elevating an institution that once had served in lesser roles to be final arbiter of guilt or innocence. At the same time, the countries of the European Continent adopted the "rational" Roman-canon forms of proof, which exalted the probative power of sworn eyewitness testimony and of the accused's confession, often coerced through torture.(25) Those commentators and historians who feel the English took the wrong road at this juncture sometimes argue that with trial by jury the English simply substituted one ordeal for another. They say that in trial by jury, as in the old ordeals, inscrutable decisionmaking produced irrational results.(26) I agree that the criminal trial jury took on certain characteristics of the ordeals, but not those (or at least not exclusively those) complained of by the jury's critics. And I think there is more to be learned by looking at the useful attributes that these systems shared than by dwelling on the historical irony that one flawed system of adjudication succeeded another. By identifying the common features that enabled the ordeal and trial by jury to command people's respect, we may discover the essential attributes of a successful system of proof in the premodern world. In fact it may be impossible to understand even the later history of the criminal trial jury without a theory about why the ordeal worked so well and about what its demise left lacking. This theory focuses on three common features of the ordeal and jury trial. The first shared trait--and the most fundamental--is the inclination to wrap the system's judgments in the word of God. The second trait, an elaboration on the first, is the tendency to rely most heavily on the divine sanction when the system's judgment would take the defendant's life or limb. The third is the need, in a world in which God rarely speaks clearly through either blistered hands or witnesses' words, to ensure discreet human control under the cover of divine judgment. A. Seeking Divine Sanction for Criminal Verdicts That the ordeal drew its legitimacy from the apparent intervention of God is a historical cliche,(27) but probably true. Hence when the Church decertified the ordeal, it wrecked it, for the system no longer could claim that God--and not some mere human authority--had decreed the accused's guilt and authorized punishment. With the ordeal gone, the system must have sought out a substitute that would reassure the public of God's continuing role in meting out human justice. The old system of trial by ordeal bespoke a social humility, an unwillingness to take life or limb without divine sanction. The authorities could not have thought that the public would grow quickly vain about the adequacy of human judgment and transfer its faith from God's word to the word of mortals.(28) The clearest evidence of the system's sense of illegitimacy in the early years after the ordeal's death was its failure to force trial by jury upon those accused of crime. One had to consent to jury trial.(29) The prisone forte et dure--literally "harsh and long imprisonment"--was the system's way of compelling "consent." This institution was established by statute in 1275,(30) but may have existed since the jury trial's very earliest days.(31) An early observer...