Why Are Trials Better than Elections?
1. Trials Are Pretty Good
I’ve been going around saying that trials in the U.S. usually have the correct outcome. We do not commonly convict innocent people, and we do almost always convict the guilty. If you disagree with the outcome of a trial, you are probably wrong, and you should probably change your view to defer to the trial outcome.
Qualifications:
Of course this isn’t always the case. Obviously, some trials have had incorrect outcomes, and sometimes we, outside observers, know it. But I believe it is much more common that, if the outside observers disagree with the trial outcome, it is the outside observers who are being dumb. I would guess that the frequency of correct outcomes is probably something like 95%.
This isn’t an a priori belief. It is based on looking at cases in the U.S. justice system, including cases that had controversial outcomes, including some that sound wrong when you hear certain popular media accounts. Examples: the Kyle Rittenhouse trial, the Derek Chauvin trial, the George Zimmerman trial.
Exception: If a case directly involves the interests of the state, and it is decided by a government official (a judge, not a jury), then it will often be blatantly biased towards the interests of the state. That is one of the main reasons why jury trials are good.
Another exception: If the law itself is unjust, then it is very common for the trial outcome to be legally correct but substantively unjust. Ex.: trials for drug crimes regularly get convictions if the person in fact violated the law. Jury nullification is rare, even when it would be justified.
If you read court documents from a case, they tend to be refreshingly informative and non-ideological. E.g., if you look up some decision in case law, the judge will give a helpful, impartial summary of the facts, with all the necessary details but without unnecessary blabbering, before explaining his rationale for his decision. It will generally be a careful, logical, and non-ideological rationale.
If you look at a jury trial, the jury doesn’t have to (and doesn’t) explain their rationale. But if you review the evidence that was presented in the trial, you’ll generally understand why a rational person would draw the conclusion that the jury did.
We should be thankful that we have such a relatively well-run legal system. (Again, with the noted exceptions.)
Aside: The recent Trump trial
The recent Trump hush-money trial might be an exception. I thought Trump was legally not guilty, yet he was convicted. What happened? I can only speculate. Maybe I was wrong and Trump really was guilty (I did not watch the trial). Maybe it was a case of jury nullification. Maybe
(a) the jury decided that the statute of limitations shouldn’t matter, given that Trump clearly did make false business records; or
(b) they decided that Trump was guilty of so many other things that he’s never been and probably never will be punished for that it was more just to convict him of this set of crimes, even if he didn’t do them. I find it much less likely that
(c) they convicted him to make it harder for him to win the election. I find it unlikely that that sort of rationale would generate a unanimous verdict.
2. Elections Are Crappy
Elections, on the other hand, work much worse. The “correct” decision (say, choosing the best out of multiple candidates) hardly ever gets made. E.g., they almost never elect a libertarian. When a state has initiatives on the ballot, it’s a total crap shoot whether they will pass the good ones or the bad ones.
Aside: Obviously, this claim depends on one’s political beliefs, so maybe some people would say that we actually do regularly elect the best people. But I don’t think many would say that. Even Democrats and Republicans are usually dissatisfied with their leaders. Indeed, they are very often dissatisfied even with the leaders from their own party. If there is a ballot initiative that all experts, regardless of ideology, agree is a terrible idea, it’s a crap shoot whether that thing will pass.
Example: Near the end of the 2016 campaign for the Republican Presidential nomination, there were 4 candidates left: Trump, Rubio, Cruz, and Kasich. My preference ranking was: Kasich > Rubio > Cruz > Trump. The preference ranking of voters was Trump > Cruz > Rubio > Kasich.
It often seems that decisions are being made on stupid grounds, like the height of candidates, how entertaining they are, and their physical appearance. At the present time, we seem to have two of the least qualified people in the entire country as our leading candidates. I don’t think either of these guys could get a job running an ice cream truck. (One of them would probably forget what he was doing there and wander off, and the other one would probably steal all the money.) But one of them is going to be chosen to be the President.
Caveat: As incredible as this sounds, elections are the best way people have come up with (that has been tried) for selecting leaders. The other methods that have been tried are terrible. So I guess we have to be glad that we have elections, rather than hereditary monarchs or dictators who seize power by force.
3. Why?
It occurred to me that one might think these two points are in tension. How can I be pro-trial, especially pro-jury-trial, yet also be so skeptical of elections? Both of them involve leaving decisions to groups of ordinary people. If the ordinary people are stupid in the voting booth, why aren’t they stupid in the jury box? If they’re (relatively) reliable when they vote on the outcome of a court case, why aren’t they reliable when they vote on political leaders and policies?
The answer lies in the two systems in play, not in the people involved. The same people can make either great decisions or terrible decisions, depending on the incentive structures and the procedures they use.
Why are trials good?
I see six things that make trials reliable:
In a trial, the jury (or the judge, in a bench trial) has to sit there and listen to all the evidence, from both sides, for however long it takes, weeks if necessary.
Irrelevant and prejudicial evidence is regularly excluded by the judge. (They may also exclude some relevant evidence that really should be included, though. E.g., the person’s prior criminal record.)
People with blatant biases are excluded during jury selection. E.g., if you hate cops (and you admit this), and the defendant on trial is a cop, you’ll be excluded from the jury. If the defendant is your brother, you’ll be excluded. If you’ve obviously already made up your mind before the trial starts, you’ll be excluded. (Though they also exclude a lot of people who shouldn’t be excluded, e.g., prosecutors don’t like overly smart people.)
In the jury room, each person has a meaningful say; every individual knows that he or she, as an individual, can have an effect on the outcome, and they generally take this very seriously (so I have heard). They thus try to get things right.
The verdict must be unanimous. So the jurors sit there and talk out their differences until they agree. (Otherwise, there’s a hung jury and a mistrial. Then the prosecution can start over with a new trial or give up.)
Finally, the jury deliberations normally involve a group of normal people. There will typically not be anyone with very extreme views dominating the conversation.
Why are elections bad?
Elections are unreliable because they have the opposite of all those characteristics:
In an election, no one has to listen to the evidence. You can totally tune out until election day, show up having no idea who or what is even on the ballot, and then vote for whatever.
Irrelevant and prejudicial information is amplified, not excluded, as long as it is entertaining. Candidates are perfectly free to talk about the size of each other’s penises (though until recently, they weren’t vulgar enough to do so) or just blatantly lie about each other.
People with any and all biases are perfectly free to vote.
In the voting booth, everyone knows that he or she as an individual will in fact have no effect on the outcome. Therefore, they don’t take what they’re doing seriously and don’t make any effort to get things right.
Elections are decided by majority rule. There is no need to persuade the minority, and most people pretty much ignore other people’s views and make no effort to talk things out with the other side.
In an election, the most extreme and emotional ideologues in the country can grab the news media megaphone and dominate the conversation. A group of 12 ordinary people probably won’t contain an extreme ideologue, but every country has them, and they will speak up during every election season. Because the news media and social media business model is based on attracting attention (rather than accurately informing people), these voices get amplified, as opposed to moderate voices.
So that is probably the main reason why jurors are better decision-makers than voters.
4. Is There an Alternative?
Is there a way to make elections more like trials? One way to address item #4 would be this: First, the ordinary voters elect a set of “electors”. The electors would be a small group of people, small enough to all deliberate with each other in a room. The electors then meet and decide who should be the actual leaders. This doesn’t address all the problems with elections, but it might make things significantly better.
Note: Our current system in fact uses “electors” to choose the President, but then we completely undermine the point by having the electors be already pledged to a specific candidate.
A thought provoking analysis. It strikes me that one way to improve the present U.S. system would be for parties to use a jury system to select candidates. When party members select candidates by voting in primaries there is likely to be a bias in favour of selecting entertaining populists rather than people who have leadership qualities.
Does it count as jury nullification when a jury convicts a defendant who is innocent?
I had assumed that jury nullification only consists of cases where the jury thinks the law is unjust and so gives a not guilty verdict, or the law is just and the defendant is guilty, but they don’t think the defendant merits punishment.
I’m not sure what to call it when a jury convicts a defendant of a charge that the prosecution has not brought, or ignores the facts of the case to convict someone who is clearly innocent. Maybe it should be called jury embellishment or jury tyranny.
There are some very good reasons for the sort of jury nullification that avoids convicting certain guilty parties. I do not know of any good reasons for jury embellishment. It is very difficult to prevent jury nullification of the kind I’m speaking of without making the jury into a rubber stamp for the prosecution. But it’s very easy to avoid jury embellishment. The judge just throws out the conviction.
Of course that's not the only way that a guilty party can escape conviction. Investigators can close an investigation without recommending prosecution, a prosecutor can decide not to prosecute, a prosecutor who has decided to prosecute can later drop charges, the judge can throw the case out, or the president or the governor can pardon the plaintiff. Seems to me these are good safeguards making it at least plausible that, someone who is unjustly charged as a chance to escape injustice. Jury embellishment on the other hand, seems very rarely to increase the likelihood of justice. If the jury knows that the defendant is guilty of something. It seems like the prosecutor ought to know that too.