Julie Seaman has posted another terrific article, “Black Boxes,” on SSRN (published in 58 Emory Law Journal 428 (2008). Here’s the abstract.
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The metaphor of the black box has often been used to describe the qualities of the human mind; likewise, the jury box is frequently referred to as a black box. In both contexts, the metaphor is apt because of the inscrutability of the process that gives rise to the outputs that emanate from each. Recent advances in brain imaging techniques have now begun to crack open the black box that is the human mind by illuminating the physical manifestations – the “neural correlates” – of a wide range cognitive processes. In particular, research into the neural correlates of deception presents the genuine prospect of a reliable, forensically practicable lie detector within the foreseeable future. Here, I proceed in the nature of a thought experiment to explore the ramifications for the jury system of a highly reliable lie detection technique. In particular, I suggest that opening the black box of the mind would have the effect of opening the black box of the jury room.
Conventional wisdom has it that the jury’s primary – if not singular – function is to determine the historical facts of the case. Yet it is clear that in addition to finding facts, juries also operate in the much more controversial realm of making law. At its extreme, this law-making role may result in jury nullification, whereby the jury issues a verdict intentionally contrary to the law as instructed by the court applied to the facts as found by the jury. Whereas the jury’s power to nullify is well-settled, its right to nullify is highly contested. Thus, much of the scholarly and judicial discussion has focused on the issue of whether the jury may or must be instructed that it has the ability to return a verdict contrary to the applicable law. Though scholars are divided, courts have uniformly held that juries should not be told of their power to nullify.
To the extent that brain imaging lie detection techniques (along with other technological advances in forensics) diminish the need for jury fact-finding, the jury’s law-making role would become more transparent to the public and, perhaps more important, to the jury itself. In cases where the facts were clear, the possibility and the actuality of nullification also would become clear. Thus would arise the questions: Is the black box quality of jury decision-making integral to the nature of the jury system itself? Would opening the black box destroy it? Should even highly accurate lie-detection evidence be excluded in order to preserve the black box nature of jury decision-making? This Article offers a framework within which to begin to think about these questions.
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For a sample of related Situationist posts, see “The Situation of Hate Speech – Abstract,” “Jurors, Brain Imaging, and the Allure of Pretty Pictures,” “The Legal Brain,” and “Jury Selection.”