Monday, May 08, 2006

Reasonableness and Jury Nullification

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Anyone even remotely familiar with the law is aware of the "reasonable man" or the "reasonable person." It's a standard that has found its way into every nook and cranny of the law where legislators and judges have been unable or unwilling to fill in the blanks in specific situations to decide what the law should be in those specific circumstances. For example: should the power company put nets under its power lines so they don't land on the telephone lines and cause a loud sound to go through to the person listening on the phone?

And those same people are also likely aware of the concept of "jury nullification," where juries disregard the law in favor of a result that they think is more desirable. For example: even though person A was driving like a nut case, person B (who was injured) is a big jerk and we don't want to give him any money anyway.

I now posit that the two concepts are complementary.

The concept of the "reasonable person" is simply meant to make judges and lawyers feel better about situations where they should let the jury decide the case however they please. It's more than just a concept of moral or economic fault. Any time the decision is left up to "reasonableness," the jury just gets to give money to the person who deserves it most.

The case that proves this more than any other is the famed case of Li v. Yellow Cab Co. of California, where the California Supreme Court adopted the concept of comparative negligence. This doctrine allows juries to give only part of the damages to the plaintiff because of the degree of fault which is attributable to him. There is no principled basis on which you can draw to come to the conclusion that P is 25% at fault and D is 75% at fault. And if I remember correctly, the dissent in that case made this point very clear--the concept of comparative negligence does not have its theoretical basis in the law of negligence itself. Negligence makes the person at fault pay for the damage that he's caused. Nowhere in that theory is there any room for sharing blame on an arbitrary basis.

So what is comparative negligence? It's just a tacit approval of jury nullification, allowing juries more free reign to do whatever they please. And this is true of all areas of the law where "reasonableness" rears its head. The juries ask themselves what they would have done in that position, and how sorry they feel for each party, and distribute the rewards accordingly.


  1. If you run through the history of both concepts, I think you'll find that the similarities you perceive in the concepts aren't really there, certainly not the way your connecting them. I think if you watch a mock jury deliberate or poll a jury after a verdict, you will see a much different, more principled, and more meticulous thought process than you're describing here. Despite political perceptions to the contrary, most jurors take their roles seriously, want to do the right thing, and they work at it by following the law in a principled way.

    I'm also not sure you can attribute motives to judges and juries as aggregate entities. You certainly can to individual judges and jurors, but groups of otherwise unconnected individuals don't exhibit intentional behavior in one direction or another. You could point to trends or stats to describe the group, but I don't think you can attribute intentionality to all its members, and those trends and stats wouldn't necessarily describe its members. So I'd suggest that "feeling" good or better about something probably isn't a true motivation behind the phenomena you describe, which, I might add, has evolved over a great deal of time.

    Sorry to be so dang contrarian, and I do see how you got to where you got with those, but I think the connection's tenuous.

  2. You're certainly right on all counts, but I wasn't really saying that the connection is that strong.

    My point is that the "reasonable person" standard is so vague that when jurors apply it they are essentially doing whatever they want to do. The trial and instructions put it all in perspective and tell the jurors how to think about the issues, but in the end they have free reign to do whatever they want.

  3. I see your point better now. In Michigan, our standard is phrased differently - a person of orindary learning, judgment and skill is the std. It's a pretty low std, but you'd be amazed at how hard some people work to get their behavior to fall below it ;)

    I'm not sure, though, that I'm buyin' the "do whatever they want" stmt, b/c I think though different people may have a different impression of what ordinary care is, they still go through the process of measuring what was done against what they believe an ordinary person would do, which is different from doing "whatever they want." See what I mean?

  4. If you had to redesign the standard, how would you do it?

  5. TG, I do see what you mean. But I think it's also likely that many jurors would ask themselves if they could see themselves in the defendant's position, i.e. screwing up the exact same way. If they could, I think they'd be unlikely to find against the defendant. This is why it's similar to nullification, because jurors only nullify if they wouldn't want to be in the defendant's position because of all the things everyone did to him and all the forces applied to him.

    Ptarmigan, I wouldn't redesign the standard. I think it's perfectly fine the way it is. That's the distinction, in my mind, between trial courts and appellate courts. Trial courts (and particularly jurors) can be a little loose with theory while appellate courts should be firmly rooted in theory and principles.

  6. I'm going to preface this by saying that a future public defender, I have a tendency to think of everything in terms of criminal law (or hockey, but that's another story), so if I fail to see the larger picture, that's why..

    You make the reasonable person standard sound like nothing more than a CYA for lawmakers who are too lazy to get specific, and I think that's unfair and unrealistic. It's a mechanism for fairness, and the point is to balance out the tendency of juries to decide facts based on their own standards so that in any given situation, similar facts should yield similar results regardless of the jury's makeup. There's more to it than simply a jury instruction saying "decide what a reasonable person would do in this situation" -- there's testimony and other forms of evidence to help the jury make that decision.

    Jury nullification is also a mechanism for fairness, but is intended to close a gap in the law that, if the law were applied literally, would result in an unfair outcome. Example: the child abuse law in Lancaster County is really broad and prohibits doing anything that puts your child's wellbeing at risk. The point is that there are alot of things that constitute mistreatment in some circumstances, but not in others -- like leaving your kids in the car while you run into Wal-Mart, for instance. Now, some guy who leaves his two year old locked in the car with the windows up in the middle of summer while he spends three hours browsing the hardware department just begs to be prosecuted. But what about the woman who realizes as she's driving out of the parking lot that she left a bag at the checkout? If she leaves her two year old in the car for 90 seconds while she dashes back in to get the bag, she's in violation of the law. If she's convicted, we're talking up to a year in jail.. Prosecutors aren't computers, and their personal biases definitely influence their charging decisions. Shouldn't the jury be allowed to "disregard" the law in this case if they think it's appropriate, or should we find this woman guilty of child abuse?

    And let me point out that in most situations, the judge has the final say.. Say the jury decides that the defendant in a case is 75% responsible and should pay $150K to the plaintiff. The judge can certainly decide that's too steep and alter the damages accordingly.. With criminal trials, it's often the judge that determines the sentence, too... And, you know, TG's right -- jury studies will show you that most people take their role very, very seriously.. I'd be much more worried about juries following the instructions literally and returning an unfair verdict than I would be about their misinterpretation of the reasonable person standard or nullification, especially since you can't actually tell the jury about nullification...