The Jury's Rise as Lie Detector

By Fisher, George | The Yale Law Journal, December 1997 | Go to article overview

The Jury's Rise as Lie Detector


Fisher, George, The Yale Law Journal


CONTENTS

I. THE OR-DEAL AND THE JURY TRIAL: THEORETICAL PRELUDE

A. Seeking Divine Sanction for Criminal Verdicts

B. The Special Case of Capital Convictions

C. The Reality Beneath the Illusion

II. THE RISE OF DEFENSE WITNESSES

A. Curtains Open: The Seventeenth Century

B. The Act To Abolish Hostilities with Scotland

C. The Treason Trials and the Treason Act of 1696

III. COPING WITH CREDIBILITY CONFLICTS

A. Witness Competency Rules and the Rule of Bethel's Case

B. Empirical Interlude: Criminal Trials in an

Eighteenth-Century Court

C. Alibis and the Problem of Unavoidable Conflicts

IV. THE RISE OF DEFENDANT TESTIMONY

A. The Downfall of Witness Competency Rules in Civil Cases

B. The Downfall of the Prohibition Against Defendant

Testimony in Criminal Cases

We say that lie detecting is what our juries do best. In the liturgy of the trial, we name the jurors our sole judges of credibility and call on them to declare each witness truthteller or liar.(1) All hierarchies of rank, learning, and technical prowess give way in the face of this asserted power of common jurors to spot a lie: In most jurisdictions today, no trial judge may advise the jury that a witness has lied.(2) No psychiatric expert may comment on a witness's credibility(3) Rarely may a polygraph technician lecture to jurors about a witness's pulse and pressure, tension or temperature.(4) The job of lie detecting belongs to the jurors alone. Nor may we later, once the jurors have done their job of sifting truth from falsehood, review how they did it. In a trial process in which we hide so much of the law and evidence from the jurors, this they hide entirely from us.

We do not leave our jurors wholly unequipped for this task of lie detecting. They come to court, as we so often tell them, with their common sense and may reject any evidence that defies it. Inside court, we give them three more lie-detecting tools: the oath, demeanor evidence, and cross-examination. Every witness must promise to tell the truth, face the jurors for their scrutiny, and endure the challenge of opposing counsel. If these tools are lacking, we do not put the jury to the task of detecting lies. Hence we usually do not ask jurors to judge the truthfulness of an out-of-court witness. But this general bar against hearsay is our only broad exception to the otherwise unqualified rule that leaves questions of credibility to the jury.

Of course, many cases impose no particular burden on the jury's powers to ferret out lies. In many cases there is no conflict in testimony. In many others there is a conflict, but the jury is able to attribute it to mistake or misperception or memory loss. In many cases, however, two witnesses tell two stories that cannot innocently be reconciled. Here the jurors must call someone a liar--indeed they must call someone a perjurer. Still, at least in civil cases, in which the jurors must merely say which witness was more truthful, their task remains relatively simple. Criminal cases mount a starker challenge. If the defendant has taken the stand to refute the testimony of a prosecution witness, then the jury may not convict unless it is prepared to credit the accuser's testimony over the defendant's and to do so beyond a reasonable doubt. To be sure, it is not wildly uncommon for defendants to proclaim their innocence in the face of a freight train of evidence--and when they do, jurors may readily brand them perjurers as well as thieves. But there are many criminal cases in which we give the jurors no substantial evidence other than the oath of the accuser and the oath of the accused. In such cases, we put jurors to the intractable task of searching the faces and gestures of strangers for the signs of deceit.

Our unguarded confidence that jurors are up to this task is the more remarkable for being so probably wrong. …

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