I’ve never in 25 years had a judge give the jury a transcript. Maybe it happens in other states.
— AngloSaxonTraditionsHat (@Popehat) April 19, 2021
/1 https://t.co/IWV1Y20K0G
The problem with a transcript (aside from the expense of it) is that (a) it would prolong deliberations into weeks. Appellate courts review trial transcripts, but they can take months deciding an appeal. Part of the reason for that is all the material from the trial court available for review. Which is not to say they review it all for every appeal (they focus on the issues presented by the parties) but do we really want juries deliberating for months, working page by page by page through the transcript of 14 days of trial?/3 As opposed, of course, to the rigorous, disciplined, rule-following way they normally deal with testimony.
— AngloSaxonTraditionsHat (@Popehat) April 19, 2021
How we treat jury deliberation is more religious than realistic.
(b) To go all Derrida on you, we privilege the written word over spoken, and think documents are more accurate than memory. But I’ve read transcripts of depositions I’ve attended, and the emotion of human speech, the entire atmosphere of the reliability (or falsity, or in-between) of the witness is lost in a transcript. All emotion, all pauses, all the ways of communication that don’t depend solely on phonemes (how you hear words), are scrubbed out of a transcript. You can actually lose meaning in transcripts, not recover it. In brief, what the witness said is not necessarily contained in the words the witness used. Anger, sorrow, disinterest, nonchalance, despair, fear, joy: all disappear when all you have are the words employed. We may be joyful when we speak, or sad, or anxious; but we tend to rely on our expressions, our tone, our volume, our pitch, to convey meaning. Words can be the least of it. Yet with a transcript, all we have are words.
We privilege words. But trials are not just about the words that were said. And what was said can mean one thing when you hear it, quite another thing when you read it. And then you begin to privilege the document over the memory, and what is read becomes what was meant.
I have very limited trial experience, once as a lawyer sitting third chair and twice on a jury. The jury can however request a limited rereading of the trail transcript. It happened both times I was on a jury, where the jury disagreed on what had been said or some of jury didn't remember a certain point. We had to designate the witness, and if their testimony was extensive, the part of the testimony we wanted to rehear. The same was true for both trials with regard to the jury instructions. The first trial had a somewhat complicated affirmative defense at preventing a home invasion, and the second was a very complicated federal racketeering charge and all the sub-elements (drug distribution, drug distribution with firearms, 5 attempted murders and one murder). In the second case the jury charge was well over an hour. In all these cases, the rereading of testimony and charges directly related to the work of the jury in determining the facts and how they applied to the charges. As a juror I came away impressed by the efforts of the juries to grapple with the law and determine the facts in light of the instructions. The jurors took their responsibility seriously. I am not so naive to think that is always true, and in both the cases I experienced there was not motivation to subvert the process. I can't say that will be true for the Chauvin trial.
ReplyDeleteI can't stand jury deliberations time in these kind of trials, I was sure Chauvin was guilty of murder the first time I saw part of the video and everything I've read or heard since has backed that up. It's the kind of thing that can make me feel crazy until it's all over and the aftermath has dissipated but I have the feeling if he's not convicted of something sufficiently serious it will be a total disaster for all of us and all of the institutions that are involved, everything from the police to the jury and the judges, the lawyers, the media covering it. If he gets off the effect on the police will be worse than for the rest of them. And the People of Color who the police come in contact with and whose lives are impinged on by the police. This is a powder keg with a fuse that has been burning for months about to go off one way or another.
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