I used to watch Law and Order. Embarrassing, right? For those who don’t know, it’s a long-running half-cop half-courtroom show focussing on the Manhattan District Attorney’s office. Naturally, the characters’ bias is going to be against defendants. One scene from S04E22 particularly stayed with me. DA Adam Schiff is talking to his Executive Assistant DA Ben Stone about a judge who ruled against them in a Russian mafia case. Ben smirks about her as too liberal. “She thinks we ought to supply defendants with nice clothes so the jury won’t be prejudiced.” Adam smirks back.
Now, we as the audience are meant to agree this is the height of ridiculousness. Or if you’re extra annoying, a case of “political correctness run amok”. I was in high school at the time and thought it was loopy. Part of it was the context of the episode, with the DA’s hands now tied in trying to convict an extremely violent mobster. But part of it is that most cop shows are pretty insidious at biasing the viewers towards believing in a world where the authorities are Honourable and Right and defendants are Scummy and Guilty. For more, see this post by s.e. smith. If you’re interested in a show that’s much more honest about police work and haven’t yet seen The Wire, wake up to yourself!
Since then, I’ve learned a thing or two and so would definitely agree that providing defendants with clothes would be a good idea. It is also interesting that an assistant to the District Attorney of all people would be mocking an idea for being too concerned with removing prejudice in the courtroom. Either Ben thinks that clothes don’t have an effect on juries or he knows it but thinks juries should be prejudiced against a defendant’s clothes because they are a good proxy for guilt or he hasn’t actually thought it through but just associates it with commie mollycoddling. Either way, it’s a perfect example of Upton Sinclair’s quote that “it is difficult to get a man to understand something, when his salary depends upon his not understanding it”.
But then my brain whispered an idea that’s a bit more radical. Why should the jury see what the defendant looks like at all? The idea of a jury seeing how a defendant hold themselves up as some essential part of the jury trial is similar to the idea of a cop being able to question a suspect and know if they’re lying based on how they hold themselves up. And guess what? That last one doesn’t work. It is well documented that stereotypical behaviours like suspects fidgeting, averting their gaze and holding unnatural postures aren’t actually tells for when they’re lying. In fact, police who pay more attention to the words and content of a story pick out lies much better (example study here). In its more extreme form, believing you can look at a defendant and just “know” verges on phrenology/physiognomy.
And then there’s the race, class, nationality, conventional attractiveness, weight and health status of the defendant. All of these have been shown to significantly bias people’s willingness to believe or sympathise with a person. Even if the jury claims otherwise. To insist that juries should know these factors in great detail (and experience them directly) is to say that these provide useful information about a person’s guilt or innocence.
This would not be a change only for the sake of defendant rights, because these biases go both ways. There are plenty of guilty defendants who have sweet-talked their way out of a conviction because they charmed the jury through their appearance, background and demeanor. So it’s more about increasing general accuracy — although I do think that the overall effect might lead to fewer convictions.
This wouldn’t be such a break with tradition either. From what I understand, it’s routine for the legal system to withhold certain information from juries if there’s a danger they will become biased from it. It’s just that the more science we learn, the more we realise just how biased we are. It should be natural for the set of information we might want to withhold to expand. But then it’s about time — much of the legal system is still based on the Enlightenment fiction of the Rational Man and should be revised.
What do you think? Would it work? Am I missing some big problem or unforeseen circumstance?