Commonsense Justice: Jurors' Notions of the Law

Vol. 6 No. 4 (April, 1996) pp.71-73

COMMONSENSE JUSTICE: JURORS’ NOTIONS OF THE LAW, by Norman Finkel. Cambridge: Harvard University Press, 1995. 400pp. $43.50. ISBN: 0-674-14670-0.

Reviewed by Thomas Schmeling, Skidmore College

At a time when the jury system is under increasing scrutiny (Mansnerus 1995) and there is evidence that jurors in some cases are rebelling against the law (Schmeling 1995), Norman Finkel’s COMMONSENSE JUSTICE: JURORS’ NOTIONS OF THE LAW is a welcome addition to the literature on this venerable but beleaguered institution. This book explores the relation between “black letter” law and “commonsense justice” or “community sentiment,” “what ordinary people think the law ought to be” (p.2), and Finkel’s “central question” is “should the law follow the path laid by community sentiment, or should the community follow the path the law has laid?” (p.1). His conclusion is that, at least in the nine areas of law which get chapter-length treatments (the focus is on criminal law; civil law is almost completely ignored), the law is to varying degrees out of step with common sense. Finkel also offers an optimistic appraisal of the jury’s role in providing a corrective for legislative excesses, arguing that commonsense justice is not unreflective but is “more deliberative and conscious, and quite sensitive to foundational issues of justice” (p.5).

Finkel first considers the question of why legislatures are out of synch with the community sentiment and lays the blame on politicians’ reliance on polls that are poorly conceived, reflect the public’s ignorance, are ill-timed, or misinterpreted. He then goes on to ask why legislatures and courts should follow community sentiment at all. The answer for legislatures is found in concern for reelection, but what about courts? Finkel spends the rest of the chapter focusing on the United States Supreme Court and arguing that courts should follow community sentiment. His conclusion is that “a decision at odds with sentiment would profoundly damage the Court’s legitimacy; if the Court’s ‘rule of law’ departs from the people’s sense of what the law ought to be, Law itself is undermined” (p.18), and community sentiment is “foundational for the continued functioning of government and for a society in which its laws are respected and obeyed” (p.19). Justice Scalia briefly appears to condemn judges’ use of community sentiment as a guide in their decisions, but his position is not fully articulated. Justice Scalia may well agree with Finkel that “if the law were not grounded in, and consistent with, community sentiment, people might well perceive that law to be unsound and unworthy of respect” (p.19), but argue that keeping the law in line with community sentiment is a job for the legislature, and a court that does so risks trampling on constitutionally protected rights.

Chapter Two discusses jury nullification, with an account of its history taking up the first half of the chapter. Finkel points out that judges, too, engage in nullification, bending the law to do justice in particular cases, particularly as mandatory sentencing deprives judges of their traditional discretion. Yet Finkel’s use of the verdict in the first Rodney King case, as an example of a possible jury nullification, raises a question: where is commonsense justice to be found? The King case produced a verdict that was “overwhelmingly at odds with broad community sentiment” (p.38). That verdict, along with those in other high profile cases (Lorena Bobbit, the Menendez brothers, O.J. Simpson) are precisely what has lead many to suggest that jurors often lack common sense, and the resulting calls for non-unanimous verdicts and other reforms (Mansnerus 1995).

Chapters Three through Five proved the framework for the following chapters. Chapter Three discusses our ability to understand jurors’ sentiments. Apart from mere speculation, how can we know what jurors are thinking? After pointing out the flaws of post-verdict interviews, Finkel introduces three notions that recur throughout the book: 1) the subjective perspective (despite instructions to make judgments based on objective criteria such as reasonableness, jurors tend to base judgments on the subjective views of defendants and victims); 2) context (where the law tries to sharply limit the time-frame of events, jurors look to background events, and may also use hindsight to justify their verdicts); and 3) construing (jurors do not merely apply the law to the facts, but interpret the facts to determine causality and intentions). Finkel illustrates each of these elements with the Rodney King case. Here, according to Finkel, jurors relied on the subjective fears of police officers, looked backward in time to judge King’s behavior immediately after he was stopped, and used hindsight based on the minor nature of King’s actual injuries to judge the behavior of the officers. Finally, they construed the officers’ behavior as a “reaction” to King’s behavior, rather than as a “beating.”

Chapter Three concludes with a discussion of two other methods of studying juror sentiment. First, Finkel reports some of Kalven’s and Zeisel’s (1966) findings on judge-jury disagreement, but notes that this methods gives us only the judge’s view and does not allow access to the “insider’s perspective” of the jury itself. Finkel then briefly defends the method of using mock juries in experiments of jury behavior. This section is surprisingly brief (less than 4 pages), considering that the bulk of the findings in the book, and thus much of the basis for Finkel’s argument, is based on such experiments. In a dialogue between an experimenter and an “absolute realist,” the experimenter concedes the unreality of the experiments. Written or videotaped scenarios, the use of college students as mock jurors, the use of single jurors as opposed to deliberating juries and the lack of a sense of responsibility that goes with rendering a verdict with a real effect all call into question the external validity of jury experiments, to the extent the some jury researches have dismissed them as useless (for these criticisms and some responses, see Bray and Kerr 1982). Finkel, correctly, responds that the experimental method has the important advantage of being able to control for confounding variables, but the response does not seem quite adequate. The realist’s criticisms make issues of experimental design crucial, yet Finkel devotes very little space to them, either here or later in the book.

Chapters Six through Sixteen constitute the core of Finkel’s evidence for his argument. These chapters attempt to explore commonsense justice in the context of various rules of law, including privacy, the right to die, impossible attempts, the felony-murder rule, the death penalty, the juvenile death penalty, self defense, insanity and manslaughter. Most of the chapters follow a general pattern: a rule of law (such as the felony-murder rule) is discussed, and then one or more experiments testing mock juror’s reactions to a case involving the rule is presented.

Though work by other jury researchers is presented, a large number of these experiments were done by Finkel and his associates. Most if not all have been previously published elsewhere, and the results are presented in a somewhat cursory manner. Often the conditions of the experiment are not fully described, and in most cases statistical tests for the significance of the results are not provided. The interested reader can presumably turn to the original publications for them.

The results generally support Finkel’s theses. The mock jurors in the studies tended to reject rigid and objective rules. They considered context, for example, in taking into account in insanity cases the degree to which the defendant was responsible for his own mental illness or, in battered women’s self-defense claims, the seriousness of past abuse. They tended to focus on subjective elements rather than objective ones. In felony-murder cases, for instance, co-felons’ lack of intent to kill was critical to mock jurors’ verdicts. Moreover, Finkel does present evidence that mock-jurors’ decision-making is principled and coherent.

COMMONSENSE JUSTICE is a book of broad scope, embracing issues of substantive constitutional and criminal law and empirical research on juries. Legal experts may find the legal issues familiar ground. Social psychologists and others engaged in research on juries may already be familiar with the findings of the empirical research reported. The value of Finkel’s book is the way he pulls the research findings together to mount a critique of the law and presents an argument for the virtues of commonsense justice.

REFERENCES:

Bray, Robert and Norbert Kerr. 1982. “Methodological Considerations in the Study of the Psychology of the Courtroom” in THE PSYCHOLOGY OF THE COURTOOM. New York: Academic Press.

Kalven, Harry, and Hans Zeisel. 1966. THE AMERICAN JURY. Boston: Little, Brown and Co.

Mansnerus, Laura. 1995. “Under Fire, Jury System Faces Overhaul.” NEW YORK TIMES, November 4.

Schmeling, Thomas. 1995. “Arguing the Punishment: Jury Nullification and Instructions on Sentencing in ‘Three Strikes” Cases.” Paper presented at the meeting of the Law and Society Association.