I recently listened to an interview with Adam Benforado, author of Unfair: The New Science of Criminal Justice, and I was fascinated by the various proposals he offered for rectifying injustices (which he exposes in his book with summaries of pertinent scientific research) that continue to plague our criminal justice system. I am planning to read the book in its entirety, but in the meantime, Benforado gave listeners plenty of food for thought in his interview by discussing some existing criminal injustices and proposing corresponding changes in how we ought to do things. In this column, I will examine one of the proposals that arose during the interview and discuss some of its strengths and weaknesses.
One proposal that struck me as potentially very powerful was this: Benforado suggested in the interview that we conduct and record trials outside of the jury’s presence and then show edited versions of the recordings to juries after all of the evidence has been presented. In practice, this would mean that whenever a lawyer makes an objection to proffered evidence or makes a motion to strike after evidence has already improperly made its way into the record (by a witness jumping the gun, for example), both the question and the answer could be deleted from the recording that the jury would ultimately watch.
Consider a hypothetical scenario. James is standing trial for the murder of his upstairs neighbor John. James decides (against his lawyer’s advice) to take the witness stand and testify on his own behalf. On cross-examination, the prosecutor asks him the question, “Were you convicted of aggravated assault two years ago?” His lawyer immediately objects, but not before James has already responded to the question, “Yes. I was.”
When this happens in a “live” trial (i.e., the sort we currently have, in which the jury is there in the courtroom watching the proceedings from the jury box), the defense attorney would typically repeat her objection and add “move to strike,” which—if successful—will result in the judge instructing the jury to disregard both the question and the answer that James gave to it.
This occurrence carries risk. The prosecutor’s question itself alerts the jury to the likelihood that James does in fact have a prior conviction for aggravated assault, even before he answers the question and the judge rules on the objection. James’s answer only further confirms that he does have such a conviction. And the evidence, despite the judge’s instruction to the contrary, will likely have an impact on the jury’s thinking about whether James is the sort of person who would commit a violent act (like, for example, killing his upstairs neighbor John, as he stands accused of doing, an act that may reflect the same propensity as his earlier act of aggravated assault).
Some readers may be thinking either “Well, such evidence is relevant and/or the defendant put his own credibility at issue by testifying, so it should have come in anyway.” As it turns out, the rules of evidence (Federal Rule 404 in particular, though states have their own versions of the Rule), with some exceptions, prohibit the introduction of evidence offered to prove that a person has manifested a particular character trait (such as violence) in the past and is therefore more likely to have acted violently in the case under consideration. The reason for this rule is not a judgment that character evidence is irrelevant to guilt (it plainly has some relevance).
Rather, the reason for the so-called “character rule” is a judgment that once a jury hears that the defendant has behaved violently before, it will be very tempted to (a) punish the defendant for his prior violence or his bad character now, (b) substantially overvalue the evidence of prior violence in this case (after all, there are many people with a history of violence who may have killed John, but only James is salient and available for the jury’s condemnation), or (c) unconsciously lower the burden of proof (i.e., to increase its willingness to make a “Type 1 error”—erroneously convicting an innocent defendant—relative to a “Type 2 error”—erroneously acquitting a guilty defendant), since a false conviction of a bad person may not seem as wrongful as the false conviction of a good person.
There are exceptions to the rule against admitting character evidence, and one exception involves the impeachment of testifying witnesses. Under Federal Rule 609, one may sometimes introduce evidence of a testifying criminal defendant’s prior convictions as a means of discrediting the defendant’s testimony (i.e., suggesting that because he has committed crimes, his testimony is unworthy of belief). The rules, however, require the judge first to make a fact-sensitive finding about the probative value of the prior conviction on the permissible inference about witness credibility relative to the conviction’s relevance to the impermissible inference that he is likely to be guilty. With a conviction for a violent offense (which is not especially probative of honesty but says a lot about a propensity for the offense for which the defendant stands trial), a judge could properly deem the prior conviction inadmissible, as in our hypothetical scenario.
If the jury is absent, as Benforado proposes, then it is possible to extract the entire exchange about the prior conviction from the recording that the jury will watch, starting with the prosecutor’s question and ending with the judge’s sustaining of the objection and motion to strike. The jury, in that case, will learn nothing of this inadmissible prior conviction, either from the prosecutor’s question or from the defendant’s answer, or from a judge’s typical instruction to “disregard” (which few believe is effective and may even lead the jury to focus inordinately on the impermissible exchange). Throughout the trial, objectionable questions, objections, and rulings can be removed from the recording so that the jury never has to hear about them.
In addition to shielding the jury from evidence and arguments that it should not be hearing, such an approach would also prevent a lawyer who objects to evidence and is then overruled by the judge from making a bad impression on the jury because of the failed objection. Juries are also thought to resent attorneys who appear to be trying to “keep things from them” by objecting (a possibility that may sometimes motivate lawyers to pick their battles and refrain from objecting too frequently). By removing the colloquy from the recording, we allow the jury to hear a presentation of the evidence that the judge deems admissible without having to process the objections, the judge’s reactions to those objections, and the information that frequently leaks out in the process.
Hearsay and the Sixth Amendment
As appealing as I might find Benforado’s proposal of a delayed trial, I have some concerns as well. My first concern is the rule against hearsay. This is the rule (802 of the Federal Rules of Evidence and its state analogues) that says that a party may not offer into evidence an out-of-court statement (i.e., a statement made outside of the current proceeding) as a means of proving the truth of what the statement asserts. For example, the following would be hearsay: A party at a trial offers into evidence testimony by witness X, who testifies for the jury that “Y told me that he saw the defendant take out a gun at the convenience store,” when the purpose of introducing the testimony is to prove that the defendant did in fact take out a gun at the convenience store, just as Y, the out-of-court speaker, asserted.
To the extent that the jury listens to a recording of the trial rather than to the original trial, live, we might characterize the entire trial as hearsay because it involves statements made outside of the present proceeding. And though there is an exception to the hearsay rule for “Former Testimony” (under Federal Rule 804(b)(1)), that rule by its own terms applies only when witnesses are unavailable to testify now, before the jury. It seems improbable that all of the witnesses at the pre-recorded criminal trial will now, at the time that the jury is hearing the evidence, be unavailable to testify. So at least as currently written, the hearsay rules (in federal court and in the state courts that largely model their evidence law on the federal version) might preclude the delayed hearing.
If we wanted to implement Benforado’s approach, and we interpreted the hearsay rules as prohibiting it, we could amend the existing law of evidence. Much more difficult to amend, however, is the U.S. Constitution. And one could argue with some force that the Sixth Amendment protects the right of the defendant to “confrontation” (including cross-examination) of witnesses at the trial itself, which arguably has already taken place by the time the jury comes into the picture, under Benforado’s proposal. Indeed, the U.S. Supreme Court has indicated in various Sixth Amendment precedents that prior testimony that was subject to cross-examination by the criminal defendant is admissible over a Sixth Amendment challenge only if the declarant (the person who previously testified) is no longer available at this trial.
For the Sixth Amendment objection, then, it would seem necessary to persuade the U.S. Supreme Court (assuming that the Sixth Amendment will not be amended) that the trial that takes place outside of the jury’s presence (and is “edited” to leave out what appears to be harmful and extraneous material, like lawyer colloquies about the admissibility of evidence) is something different from “former testimony” subject to the unavailability requirement. That is, one would have to convince the Court that a jury listening to an edited, pre-recorded trial after the fact is engaged in the same proceeding as were the attorneys and witnesses participating in the earlier pre-recorded trial. That could be challenging, with a bifurcated proceeding in which jurors appear to be coming in only once the action is over, watching and listening to edited testimony from the past.
In response to the part of this claim deriding editing, I would emphasize the fact that arguments about admissibility are already often conducted outside the presence of the jury precisely because the jury has no business listening to these colloquies. It is in large part because of the inefficiency of having to remove the jury every time an attorney wants a ruling on an evidentiary objection that the jury currently gets to listen to objections and rulings on those objections that happen in open court. And an unfortunate result of the jury’s presence is something I tell students in my Evidence classes: When you think about objecting to evidence, you need to balance the benefit of potentially keeping out harmful evidence or, at least, preserving the error for appeal, with the likely (negative) impact that your objection will have on the jury now. You need to decide whether the relative harm of that impact outweighs the harm of the jury’s hearing whatever it would hear in the absence of an objection. Eliminating this dilemma that results from a jury’s presence during objections and rulings on those objections may help justify the “editing” aspect of the recorded testimony. And perhaps most importantly, in response to the “two proceedings” argument, I would note that the recorded testimony is created almost entirely for the jury’s later consumption and therefore is best characterized as an inherent part of the same proceeding as the jury’s later hearing of it.
On the question of the delay and whether that is unconstitutional, I would point out that there is always a delay between speaking and hearing. Sound does not immediately make its way from the speaker’s mouth to the listener’s ear, so the matter of delay in listening to a recorded trial is arguably a difference in degree rather than kind. One might counter, however, that in addition to delay, the experience of watching a movie of testimony in two dimensions is quite different from being in the same courtroom as the witnesses and attorneys and absorbing their words and actions directly, in real time.
To learn whether Benforado’s proposal here would alter the process or the outcome of trials for good or ill, it might be useful for empirical legal scholars to conduct experiments in which mock trials take place before one jury (“live”) and recordings of the trials are then shown, with evidentiary colloquies edited out as needed, to a second jury. We can then find out whether the second jury is more likely to give the parties a fair trial than the first, what happens during the respective jury deliberations, and whether outcomes are superior in one or the other condition. If such experiments yield evidence favoring the delay approach, I believe there is room for interpreting the Sixth Amendment to permit this innovation, one that could help ameliorate some of the unfairness that currently afflicts the criminal justice system.