What Can "Objectively Reasonable" Do For You?

A new study (summarized here, published and paywalled version here) explores how the phrase "objectively reasonable" -- a very important phrase in the law surrounding assessments of police misconduct -- changes American perceptions of police officers. The core finding is that "objectively reasonable" makes listeners -- and particularly racial minorities -- think more favorably of the officer so labeled (compared to saying something like "the average police officer").

It's an interesting study, though my initial instinct is that the takeaway from it may be exactly opposite of what the authors imply. The authors suggest that the use of "objectively reasonable", since it is associated with more positive perceptions of the police, primes listeners (such as jury members) to think of the police more favorably than they otherwise would. But I think the effect may be the opposite: by asking jurors whether a given officer acting as an "objectively reasonable" officer would, the fact that "objectively reasonable" brings to mind higher levels of professionalism and conscientiousness means that the actual flesh-and-blood officer being judged is effectively being held to a higher standard than he or she otherwise would have.

Consider a jury deliberating over whether an officer accused of misconduct violated the legally-relevant standard of behavior. If that standard is that of the "average officer", the juror might think "well, their conduct wasn't great -- but then, the average officer isn't that great either. Can I really say that this guy performed worse than average?" But if "objectively reasonable" calls to mind more conscientious behavior, that same juror might conclude that the officer in front of the court did not meet that more idealized conception of how an officer should behave. So telling the jury that the officer they're evaluating must have acted as an "objectively reasonable" officer would cause them to more rigorously scrutinize the officer's conduct.

In other words: an officer whom we've already stipulated is "objectively reasonable" will be viewed more favorably than one who we only stipulate is "average". "Objectively reasonable" is better than "average" (at least for non-White respondents). But for that very reason, an officer whose performance we are trying to assess on a blank slate should be more likely to surpass the standard of "average" than the standard of "objectively reasonable", since the latter appears to be a higher bar than the former. So insofar as jurors are instructed to ask whether an officer behaved in a manner that comports with an "objectively reasonable officer", that should make them less likely to answer "yes" compared to if their standard was that of the "average" officer.

After Ammon Bundy, Can We PLEASE Stop Obsessing Over O.J. Simpson?

Ammon Bundy and his cohort have been acquitted of all charges following their seizure of a federal Oregon Wildlife Refuge despite, you know, clearly having done it. A lot of people are upset about this, but I'm not. You want to know why?

Honestly, the O.J. Simpson trial had been getting a bit dated as a reference for "criminal trial where obviously guilty persons don't get convicted."* And with the Bundy acquittal, we can finally let the Simpson case go and focus our contempt for the criminal justice system and effective jury nullification on a more recent and topical case.

That's precisely how this will work, right? We are all equally outraged when high-profile White people escape punishment for the crimes they clearly committed?

* In many ways, this is worse than the Simpson case -- for while Simpson was almost assuredly guilty, at least he actually denied committing the crime. The Bundys more or less admitted to doing everything the government charged them with, with a defense justified by "but it's the government, so come on" -- a much more classic case of nullification.

What's Reasonable About Reasonable Doubts?

Suppose you are on a criminal jury. After the case closes, you retire to determine whether the defendant is "guilty beyond a reasonable doubt". It's one of the most famous elements of American law -- probably the only part of the jury instructions that jurors know of in advance. But what does it mean?

"Guilty beyond a reasonable doubt" means, on the one hand, something more than just thinking the defendant probably did it; and on the other hand, something less than being absolutely certain that he did it. It allows for doubts, but only "reasonable" ones.

So you come into the jury room believing that the defendant is guilty and that, whatever doubts you may have about that conclusion, those doubts are not "reasonable" ones. A fellow juror disagrees. He has doubts sufficient to cause him to vote "not guilty". You listen to his argument, but your mind isn't changed. You still vote "guilty". What, exactly, does that vote mean in the context of your assessment of the other juror? They raised doubts, and yet you're voting "guilty beyond a reasonable doubt." At first blush, there seem to be two possibilities:

(1) By voting "guilty beyond a reasonable doubt", you are implicitly saying that their doubts are unreasonable. If they were reasonable, then you'd be obligated to vote "not guilty".

(2) By voting "guilty beyond a reasonable doubt", you are making no statement about the reasonableness of anyone else's doubts. In effect, you are stating that it is possible for some people to have "reasonable" doubts and others to have no such doubts.

To me, the former makes much intuitive sense in terms of the actual concept of "reasonable doubt". Typically in law "reasonableness" is an objective standard. It is meant to transcend individual idiosyncrasies and provide a uniform standard based on the prototypical "reasonable person". And at a very basic level, I'm not sure what it means to say that while someone else's doubts may be reasonable, this person is nonetheless "guilty beyond a reasonable doubt". Once you've made the concession that someone could reasonably have doubts, then by definition the defendant cannot be guilty beyond a reasonable doubt.

Yet it is absolutely clear that we do not view reasonable doubt this way. First of all, I suspect that if we did -- if the standard really was "is someone with a contrary view objectively unreasonable?" -- we would almost never convict anyone. But it also is implicit in the structure of appellate review of criminal convictions.

When I was an appellate clerk, we'd of course have a great many cases where defendants challenged their criminal convictions. It was pretty rare that I came across a case where I thought the defendant was "actually innocent", in the sense that I thought it was more likely than not that they didn't commit the accused crime (I can think of one potential candidate -- Paulson v. Newton Correctional Facility, 703 F.3d 416 (8th Cir. 2013)). But there were quite a few where I thought there might be reasonable doubt. I'd read the defendant's account of what happened, and I'd think "that's a live possibility." And of course I don't think I'm unreasonable. So, it seemed to me, reasonable doubt existed. If lack of such doubt is supposedly a prerequisite of a guilty verdict, how do such convictions stand?

The answer is the standard of review, which is quite strict in such cases.

We "reverse only if no reasonable jury could have found [Va] guilty beyond a reasonable doubt." United States v. Morales, 445 F.3d 1081, 1084 (8th Cir.2006) (quoting United States v. Howard, 413 F.3d 861, 864 (8th Cir.2005)). We "view the evidence in the light most favorable to the guilty verdict, granting all reasonable inferences that are supported by that evidence." United States v. Milk, 447 F.3d 593, 598 (8th Cir.2006). "The standard for reviewing a claim of insufficient evidence is strict, and a jury's guilty verdict should not be overturned lightly." United States v. Pizano, 421 F.3d 707, 719 (8th Cir.2005).

United States v. Van Nguyen, 602 F. 3d 886, 897 (8th Cir. 2010).

This seems to (and in effect does) shift the burden of proof sharply in favor of upholding convictions. But it suffers from a conceptual problem, since it is effectively smashing two standards of persuasion together. The question for the reviewing court, to paraphrase the Morales decision quoted above, it whether it is unreasonable for a jury to conclude that any doubts raised are unreasonable. Those two "unreasonables" don't play nicely with one another, because again, isn't reasonability supposed to be an objective test? Clearly not, because if so we could just restate the original instructions: are there reasonable doubts or not? The only reason this deferential level of review could possibly be necessary is to uphold verdicts where reasonable doubts do seem to exist. Even granting some allowances for the fact-finders' supposedly superior ability to assess evidence and credibility, the width of the gap between how hard it (supposedly) is to convict ("beyond a reasonable doubt?") and how easy it is to uphold a verdict ("was the jury made up of unreasonable lunatics?") indicates that the test must be subjective.

The end result is that criminal convictions occur -- and probably often occur -- when a reasonable person could have reasonable doubts about the defendant's guilt. That conclusion, to me, seems deeply inconsistent with what we believe as a society tell ourselves about the criminal justice system -- though it seems quite consistent with how it operates in practice. I'm not even necessarily being critical of this result -- the alternative implied by "reasonable doubt" being an objective standard is functional de novo review of jury verdicts, which would mostly obviate the point of having a jury at all. But what it does mean is that "beyond a reasonable doubt" likely is little different from "preponderance of the evidence" -- 12 people (or fewer, depending on the circumstances) subjectively deciding the defendant was probably guilty.

UPDATE: Incidentally, the key case rejecting the claim that a proper "reasonable doubt" instruction must demand that the evidence "exclude every reasonable hypothesis other than that of guilt" is Holland v. United States, 348 U.S. 121, 139-40 (1954).

Stand Your Factual Ground

Sociological Images has a terrifying graph that documents racial disparities in justifiable homicide verdicts

Before I go any further, I want to stress that while this graph focuses on "Stand Your Ground" laws, contrary to popular belief that law was not the primary player in the Zimmerman trial. This graph is instructive not because of what it says about SYG specifically, but rather because of it what it documents about racial disparities generally.

That being said -- this is a scary graph. White-on-black homicides in all jurisdictions are far more likely to be considered "justifiable", but the disparity skyrockets where there is a "stand your ground" provision. What's more, blacks scarcely benefit from SYG at all, at least when the victim is White.

Reasons and Doubts Part II: After the Verdict

I posted this on my facebook wall, but it really is more of a post-verdict follow-up to this post.

* * *

In an idealized criminal justice system, 100 guilty men go free lest one innocent be convicted.

In an idealized criminal justice system, defendants are acquitted even when we believe they really did it, because one cannot dismiss an alternative account as unreasonable.

In an idealized criminal justice system, verdicts are rendered not just based off a gut sense of "justice", but based on careful weighing of all the evidence to determine if it does not just make guilt probable, but "beyond a reasonable doubt."

I've seen many people talk about the Zimmerman verdict with respect to these idyllic values of criminal justice. And they aren't wrong to do so.

BUT

We do not have an ideal criminal justice system. As a clerk, do you know how many cases I see where I read the record and go "beyond a reasonable doubt? Really?" It's not that I can't imagine they're guilty, or even that I don't believe they're guilty, but it's not like I can't imagine they're innocent either. Do you know how often I've seen a conviction reversed based on sufficiency of the evidence? Never. As a country, we have no problem convicting people -- some people, anyway -- based on factual records which by any objective metric leave considerable doubt.

We do not have an ideal criminal justice system. At least, not for everyone. The above principles, which should make guilty verdicts quite hard to achieve, are not enforced regularly or evenly.

After all, what doubts are "reasonable"? Narratives which are naturally coherent in our mind. Threat assessments we can imagine ourselves making. Stories in which we can imagine ourselves playing the leading role. All of these concepts are mediated through minds which remain deeply infected with racial bias.

As the Tampa Bay Times documented at the start of this case, a successful "stand your ground" defense is considerably more likely if the defendant was black. Blackness, in the aggregate, impacts our assessment of a reasonable threat, and impacts our assessment of how likely it is that there was a threat in the first place. This finding is no outlier -- anyone with a familiarity with the literature knows just how racialized our perceptions are in this arena. It is willful ignorance to pretend that "reasonable doubt" means the same thing for blacks (defendants or victims) and whites.

This critique isn't answered by referencing our high ideals, for it demands the question, "who is entitled to these ideals? Do we actually take them seriously?" No, we don't. For some defendants and for some victims, we rely on gut feelings and are stubbornly unwilling to imagine alternatives as "reasonable". For others, we demand prosecutors have an armory of smoking guns. The issue isn't about which system is better. The issue is about the distribution. We've established a two-tiered criminal justice, where some people get the benefit of our highest, most civilized ideals, and others don't.

The moral to all this isn't necessarily "George ZImmerman should have been convicted." But we can't keep on heaping black bodies upon the altar of a criminal justice ideal we don't actually have any intention of meeting. At some point, the "equal" and the "justice" have to be harmonized. Right now, they are badly out of alignment,

When a Boy Isn't Just a Boy

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Plessy v. Ferguson, 163 U.S. 537, 551 (1896).

The 11th Circuit has once again reversed a verdict finding racial discrimination a Tyson Foods factory, holding (among other things) that the evidence whereby a White supervisor had called the Black plaintiff "boy" was insufficient to provide evidence of discriminatory bias.

This case had already been up to the Supreme Court once, where they reversed a prior 11th Circuit decision holding that "boy" could never be evidence of racial prejudice unless accompanied by a modifier like "Black" or "White". The Supreme Court chastised the lower court:

Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.

Not taking the hint, the 11th Circuit continues insist that there was simply not conceivable way a jury could have interpreted the usage of "boy" as evidencing a discriminatory attitude.

Obviously, it's true that whether "boy" is malevolent or benign depends on the factors the court laid out. And you know who is, if not really good at examining those factual elements, then at least is legally tasked with sorting them out? Juries! They're the ones who know the most about local custom, and inflection, and tone of voice, and how comparable "boy" is to the n-word. Not, say, three judges on the 11th Circuit reviewing trial transcripts after the fact.

Worst Pillow Talk Ever

A convicted murderer is moving for a new trial, alleging jury misconduct that tainted the verdict. Specifically, he claims, two jurors had sex with each other while sequestered. And that's not all -- the deputies who were supposed to be keeping watch were having sex too (hopefully not -- or hopefully so! -- in the same room!).

Orin Kerr says (and I agree) that unless the jurors talked about the case during their romps, this probably isn't grounds for a new trial. One would hope there were other things on their minds at the time.

Scalia Cares About Diversity

We read Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) in civil procedure today. In Edmonson, it was held that race-based peremptory challenges in civil cases violate the equal protection clause. Much of the argument between the majority and the dissent grappled with whether peremptory challenges -- basically, eliminating a potential juror from the pool for no reason whatsoever (parties in civil cases generally get a limited number of peremptories) -- is a "state action" for constitutional purposes. The majority concluded that it was, as the selection of a jury is a state body whose composition is merely being delegated to the parties, while the dissenters argued that it was not, that jury selection was a function of purely private actors who were only using the court as a forum to resolve their dispute.

But Justice Scalia's separate dissent was interesting to me, because he spent much of it waxing poetic about the need and right of litigants to pursue racially diverse juries -- or at least select their jurors race-consciously. After noting his agreement with Justice O'Connor's argument that the majority is wrong "in principle" to assert that peremptory challenges in civil litigation are state actions, he continued to write that:

[today's opinion] is also unfortunate in its consequences.

The concrete benefits of the Court's newly discovered constitutional rule are problematic. It will not necessarily be a net help, rather than hindrance, to minority litigants in obtaining racially diverse juries. In criminal cases, Batson v. Kentucky, 476 U.S. 79 (1986), already prevents the prosecution from using race-based strikes. The effect of today's decision (which logically must apply to criminal prosecutions) will be to prevent the defendant from doing so - so that the minority defendant can no longer seek to prevent an all-white jury, or to seat as many jurors of his own race as possible. To be sure, it is ordinarily more difficult to prove race-based strikes of white jurors, but defense counsel can generally be relied upon to do what we say the Constitution requires. So in criminal cases, today's decision represents a net loss to the minority litigant. In civil cases, that is probably not true - but it does not represent an unqualified gain either. Both sides have peremptory challenges, and they are sometimes used to assure, rather than to prevent, a racially diverse jury.
[...]
Although today's decision neither follows the law nor produces desirable concrete results, it certainly has great symbolic value. To overhaul the doctrine of state action in this fashion - what a magnificent demonstration of this institution's uncompromising hostility to race-based judgments, even by private actors! The price of the demonstration is, alas, high, and much of it will be paid by the minority litigants who use our courts. I dissent. [500 U.S. at 644-45]

I find it interesting that Scalia appears to recognize here that stripping minority actors of their ability to use race conscious procedures is, in fact a problem. More than a problem -- morally objectionable; a bar to basic fairness! The move towards color-blindness, he's arguing, is qualitatively harmful to minority litigants, and that's a concern he wishes the court to be mindful of.

An interesting argument, and one that gave me pause when reading this case. Kind of incongruous with the bulk of Scalia's jurisprudence, though, no?

Lisa S. or L. Simpson?

The Pittsburgh Post-Gazette has an odd view of anonymity:

"In my opinion, the plan, the scheme was the problem for me personally," said the jury foreman, who requested anonymity in light of the judge's request that jurors not yet speak publicly.

I presume the foreman's identity was public knowledge -- certainly at least to the judge who gave the gag order in the first place.

The case he's taking about, incidentally, is interesting too -- sadly, it might be yet another case of a politicized prosecution by the Bush Justice Department.

Knowledge and Punishment

Orin Kerr links to a story of a New York federal judge who, bucking long-standing precedent, is now holding that jurors need to be informed of mandatory sentencing guidelines prior to their determination of guilt and innocence. Kerr predicts the ruling will quickly be reversed, as it flies in the face of well-established precedent that's existed for a good 100 years. But that doesn't make the question any less interesting.

This is one of things where how we idealize jury deliberation runs headlong into how I imagine jury deliberation actually works. Ideally, the punishment bears no relevance to the question of guilt or innocence. They're separate questions. In reality, I'd imagine that jurors would be more willing to fall on the "guilty" side of that fuzzy reasonable doubt line where they think the punishment is not too harsh, and rule "not guilty" when the punishment feels strongly out of line with what they think is deserved. When that information is not present, the jurors don't just have a blank slate; they instead fill in their mental gaps with an assumption of what the punishment is that correlates to how severe they imagine the crime to be.

Where this ruling does implicate "idealized" jury functionality is in the realm of jury nullification. If one does believe that juries should be allowed to nullify because they view the underlying law as unjust, the sentencing range of the law is clearly relevant information. Many people who don't have a problem with drug criminalization per se still find gross injustice in the wildly overinflated sentences drug convictions bring. Knowledge of those guidelines could lead to more nullifications and potentially reform of the law.

Building a Better Jury

I've been reading this fascinating study by Samuel R. Sommers of Tufts University that was published last year in the Journal of Personality and Social Psychology. I mentioned the study on the blog when it came out, but I didn't get the opportunity to read it until now. Basically, it measures the performance difference between racially homogeneous and heterogeneous juries (the former being all White, the latter consisting of four Whites and two Blacks), all of whom separately deliberated on the same "case". On a variety of metrics, blind observers found that members of the heterogeneous juries outperformed their homogeneous peers. Specifically, the heterogeneous juries deliberated longer, discussed more facts, were less likely to state factual inaccuracies, were more likely to correct factual inaccuracies when they did occur, discussed more "missing" evidence (e.g., inquire as to why certain testimony wasn't presented or why there was no fingerprint evidence, and what it meant), were more likely to discuss racism-related issues, and were less likely to reflexively object when race issues were brought up. These benefits were shared by the White and Black jurors alike. That is to say, the increased deliberation wasn't because Black jurors wished to press deliberations for a longer period, pushing the average up. Rather, in heterogeneous environments, both White and Black jurors both displayed a stronger commitment to a deeper, more rigorous examination of the facts and issues surrounding the case (the specific methodology and mechanics of the study are laid out in the article).

Another interesting implication is how these findings relate to other studies which have elucidated some of the harms of diversity. These harms generally play out in terms of reduced group cohesion and morale, or increased intra-group conflict. While Sommers did not find any difference between the diverse and homogeneous juries in the perception of intra-group conflict, he argues that even where that is a significant risk, in some circumstances it might be outweighed.

But even when conflict accompanies the potential benefits of diversity, one wonders whether this is often a risk worth taking. Threats to morale can be temporary and overcome as a group acclimates to heterogeneity (Jehn et al., 1999; Watson et al., 1993). Furthermore, a little discomfort may be good if, as the present data suggest, groups’ natural tendency is to stifle discussion of controversial or unpopular topics. Many a group has goals beyond a harmonious existence, whether the decision making of committees or the performance of students in a classroom. The present findings raise the possibility that dwelling on the negative interpersonal effects of racial diversity can be shortsighted and may prevent realization of long-term performance benefits. This leads to the more general conclusion that too little attention is often paid to the threat posed by group homogeneity. Debate regarding diversity usually centers on the costs and benefits of seeking heterogeneity, but what about the alternative status quo? An extreme interpretation of the present data is that compared with racially diverse groups, homogeneous groups were lazy information processors, prone to inaccuracies, unwilling to consider uncomfortable topics, and superficial in their discussions. A kinder conclusion would be that homogeneous groups spent less time on their decisions, made more errors, and considered fewer perspectives. In either case, homogeneity was associated with performance decrements, and this is not the first time such a relationship has been noted (Janis, 1982; Kameda & Sugimori, 1993; Wilkenfeld, 2004). Nonetheless, in both popular discourse and scientific examination, cost-benefit analyses of homogeneity are too often left implied or ignored altogether in efforts to evaluate diversity. (608-609)

Where maximum performance is considered to be more important than maximum harmony, diversity should be pursued even where there are risks of fostering some reduction in intra-group morale. Juries would seem to be an obvious instance where this is the case, and I'd argue that this is also so in many of our social and democratic institutions.

I've long argued that diversity (including racial diversity) is a just end for governmental and social bodies to pursue because diversity makes institutions better at what they do. Sommers' study has laid some of the empirical groundwork that indicates that this is, in fact the case. Where racial diversity can be tied to a bona fide job requirement, even conservatives have conceded that affirmative action to pursue it is constitutional and appropriate (see Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir. 1996) (opinion by Judge Richard Posner)). Sommers' study indicates the possibility that these situations exist in far more circumstances than many of us had imagined.

***

Samuel R. Sommers, "On Racial Diversity and Group Decision Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations," Journal of Personality and Social Psychology, Vol. 90, No. 4, pp. 597–612 (2006)