You know what's going to happen in the next twenty pages when Justice Baxter begins this opinion by saying:
"Jurors, like all human beings, are imperfect. It follows that jury deliberations may also be imperfect. A single juror may fail to recollect some bit of testimony. Some jurors may forget or misapply one of the instructions. Others may focus tenaciously but unreasonably on one aspect of the record to the exclusion of the rest. Through the give and take of deliberations, however, the jury‘s collective memory and common sense will often correct these types of errors and lead to a result that surpasses in wisdom the understanding of any one person."
Yep. The grant of a new trial is going to be reversed. Unanimously.
Justice Baxter's introduction may well deliberately understate the nature of the "imperfection" at issue here. This is a case where one of the jurors (allegedly) said that the defendant must be guilty because he didn't testify. Guess we need to brush up a bit on the Fifth Amendment, eh?
But the California Supreme Court says that that error is like any other type of internal error in jury deliberations. We assume they worked it out.
In truth, we make this assumption even though we know it's not always true. Justice Baxter's right that the "give and take" of deliberations "will often" correct these errors. The negative pregnant there is also right: We know full well that, lots of times, it won't, and will instead perniciously affect the verdict.
But, as a policy matter, we simply don't want to hear about it. It's excruciatingly hard to differentiate between errors we "care" about (e.g., the Fifth Amendment) and those we don't (e.g., errors about the weight of particular testimony). Juror deliberations are like sausage. We like the result, but only if we close our eyes to how it's made.
So we close our eyes. And, ummm, the sausage -- justice -- is so yummy.
As long as you forget what's in it.
