282. Fatuity watch

In the late 1970s, while I was checking into the only type of motel I could afford (who keeps fleas in a bag, anyway?) in a town that the freeway forgot, I walked into the middle of a political discussion.  The night manager, an obese middle-aged woman, was saying: "If that SALT II treaty is ratified, I guarantee you that the Russians will be here within two years." 

When people say such superlatively preposterous things, the impulse is to wonder what could possibly be going through their heads.  Had the motel manager stayed up too many nights listening to Art Bell, or read a John Birch Society pamphlet while hypnotized?  Or were her foreign policy views a result of the same chemical imbalance responsible for her obesity?

When judges say equally preposterous things, it's usually all-too-obvious what was going on in their heads: a mental process that bears only the most superficial resemblance to thought.  Take Washington's Supreme Court Justice Richard B. Sanders, whom we've met before.  (See post 198.) 

In a recent concurring opinion, Sanders agreed with his colleagues on the Washington Supreme Court that the trial court erred by permitting a jury to hear certain evidence.  That evidence, while indisputably relevant to the jury's task of determining the defendant's guilt, should have been concealed from it.  But Sanders thought his colleagues were a little hasty in deciding the trial court's error was "harmless" – that is, that it probably had no effect on the jury's verdict.  He wrote:

[W]e "have no right to trench upon the province of the jury upon questions of fact."  Jensen v. Shaw Show Case Co., 76 Wash. 419, 421, 136 P. 698 (1913).  See Wash. Const. art. I, § 21 ("right of trial by jury shall remain inviolate"); U.S. CONST. amend. VI (guaranteeing trial by jury).

Modern constitutional criminal law consists of very little - so little as to approach nothing - except trenching upon the province the jury upon questions of fact.  The meaning of phrases such as "fourth amendment violation" and "Miranda violation" is that the jury was permitted to decide the facts of a case based on too much information.  It was permitted to get too close to the unvarnished truth.

The Fifth Amendment privilege against compelled confessions excludes evidence that everyone knows is quite likely to be false.  (See post 241.)  It also embodies a belief about the moral relation between the state and the individual that was, until quite recently in our history, almost universally-held in our society.  But the judge-made exclusionary rules invented since 1961 serve neither purpose.  Their goal is quite different: to prevent the conviction of people who committed acts that democratically-elected bodies have declared illegal.

Now, judges have given a variety of reasons why concealing relevant evidence from jurors is more important than permitting the people to decide how to regulate their own social relations.  For example, they say that preventing the conviction of guilty people teaches police officers good habits, the way an electric shock teaches lab rats not to press a certain bars in their cages.

For present purposes I'm perfectly willing to say that the judges are, in every instance, correct to prevent the people from using the courts as an instrument of self-government.  The point is that almost the only device available to judges to implement their alternative, superior vision of government is to trench upon the jury's role as factfinder.

They "suppress" evidence obtained by police, meaning they prevent jurors from learning of its existence in order to forestall the danger that they might find it helpful in their deliberations.  Or they rule that the evidence is inadmissible under the rules of evidence, for example because it's too powerful for defense counsel to explain away ("its probative value is substantially outweighed by the danger of unfair prejudice"). 

They order separate trials so jurors deciding one conspirator's guilt won't draw reasonable, logical inferences from information pertaining to his co-conspirator.  (If the inferences weren't reasonable and logical, jurors wouldn't draw them – unless we believe that jurors are unreasonable and illogical, which would make our jury system absurd.)

Indeed, when Justice Brennan wrote the opinion belatedly acknowledging the long-neglected provision in Constitution that requires separate trials (the Framers had accidentally left it on top of the car at a gas station, and it took nearly two centuries of searching to discover it in the weeds next to the road), he did do so on the basis that jurors, being non-lawyers , were too stupidly emotional to handle that much information. 

(Though he, like most judges and Don Corleone, preferred euphemism and circumlocution: "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.")

Criminal court judges limit the jury's power to decide the facts.  That's what they do.  Justice Sanders wasn't criticizing that.  On the contrary, in the case before him, he thought the trial court had made a mistake by permitting the jurors to learn as much as they did.

But even as he reaffirmed that the essence of the trial judge's role in criminal cases is to withhold evidence from juries, he wrote his "vacuously, smugly, and unconsciously foolish" concurring opinion saying that judges have no right to trench upon the jury's fact-finding role.

If Justice Sanders had thought for even a second about what he was saying, he would have recognized his self-contradiction.  But he didn't have to think.  He wrote legal prose instead.