The dozing alternate juror recently dismissed by Judge Fujisaki in the O. J. Simpson civil trial dramatizes the compelling case against jury decisions in scientifically complex cases. Nodding into oblivion during the testimony of DNA expert Robin Cotton, the dozing juror demonstrated that lay jurors may be not only incapable of understanding complex expert testimony; they are sometimes even incapable of listening to it.
The dozing-juror syndrome is not extraordinary. In my role as expert witness in construction litigation, I observed it several times. On one occasion, I attempted to explain Dalton's Law of Partial Pressures to a jury composed predominantly of catatonic housewives. Dalton's law is easily explained to anyone acquainted with elementary physics. But to jurors totally alien to physical science and, moreover, bored by a trial's inevitably deadly pace, Dalton's law presents a pretty high mental hurdle (though much lower than DNA technology). Confronted with technical matters such as DNA markers, alleles, probability calculations and the like, jurors often betray boredom as well as confusion in their dull, glazed eyes.
In contrast to jurors, arbitrators and judges (the two alternatives to jury trial) usually display interest in a trial's technical issues. Arbitrators normally are practitioners in the contended field -- architects or engineers in construction disputes, accountants in financial disputes. Jurors almost always are reluctant, essentially unpaid draftees; arbitrators (and judges) are paid volunteers. Trial by judge, or better yet, arbitration panel, offers tremendous advantages over trial by jury in complex scientific cases.
Juries have displayed spectacular stupidity in decisions involving scientific issues. In the most notorious instance -- a medical malpractice lawsuit, naturally -- a jury awarded $1 million to a Philadelphia psychic who claimed that a hospital CAT scan destroyed her predictive faculties. A physician's "expert" testimony supported this fatuous fantasy.
Junk science often wins, and genuine science often loses, when juries decide. California's juries have perpetrated monstrous perversions of justice. In one of World War II's celebrity counterparts of the Simpson trials, the 1944 paternity lawsuit against actor Charlie Chaplin exhibited the jury system at its worst. Genotyping blood tests proved that Chaplin was not the father of plaintiff Joan Barry's daughter. Ms. Barry had type A blood; her daughter, type AB; Chaplin, type O. Sex partners with types A and O blood cannot produce a child with type AB. Well established at the time of Chaplin's trial, that scientific fact was attested by three expert witnesses.
The Chaplin jurors, however, refused to be confused by the scientific facts. Like the jurors in the Simpson trial, they preferred to be confused by a rabble-rousing lawyer -- plaintiff Barry's lawyer in the Chaplin case, Johnnie Cochran et al. in the Simpson criminal trial.
Trial lawyers, of course, defend the jury system, despite their perennial efforts to corrupt it. For lawyers propounding dubious arguments, the ideal juror is a malleable moron. Judges often cooperate by impaneling jurors approximating the lawyers' ideal. Obsessed with the possibility of juror bias, judges have elevated ignorance of the news into a transcendent juror virtue, far outranking intelligence as a criterion for juror selection. When Judge Lance Ito disqualified regular newspaper readers from the Simpson criminal jury, he displayed this judicial obsession with bias at the expense of intelligence. Judged by their reported remarks, most of these jurors lacked the capacity for making simple logical inferences. The rudiments of DNA science were obviously beyond their comprehension. With their hasty verdict, they ignored Judge Ito's daily instructions to suspend judgment until the trial's end, as well as the overwhelming scientific evidence pointing to Simpson's guilt.
The lessons from Simpson's criminal trial buttress the evidence from countless civil trials: By following Britain's lead in banning jury trials in technically complex civil cases, we could take an essential first step in transforming our current legal lottery into a genuine system of civil justice. The writer, an engineer, is an expert witness in construction litigation.