Juries: 12 Increasingly Angry Men

One of the most enjoyable things about economic analysis is that it often yields surprising facts about cherished institutions. For example, the jury selection process in the United States probably burdens defendants disproportionately in criminal trials – most people believe jury selection serves to mitigate the problem of biased juries.

Why? Imagine the distribution of jurors by how sympathetic they are to the defendant. I would guess the distribution isn’t normal with a mean of “indifferent”; instead, the average juror probably starts from a relatively unsympathetic position. Assume for a particular defendant, 60% of the population has some bias against the defendant and 40% has some bias in favor. If the jury is randomly selected, we would expect 6/10 jurors to be relatively anti-defendant. If the prosecutor and defense attorney can identify the jurors biases and are allowed one challenge each, the final jury should be 6.2/10 anti-defendant. Every additional challenge increases the frequency of anti-defendant jurors in the panel.

Apparently Scots law embraces (wisely, I think) random jury selection. The quotation below is from Peter Duff’s “The Scottish Criminal Jury: A Very Peculiar Institution”:

There is no equivalent to the voir dire procedure in Scotland, a fact which might surprise some American readers. The strong opposition of the Scottish criminal justice system to any procedure of this type is well illustrated by the observations of the Appeal Court in McCadden v. H. M. Advocate:

There may never be a process which eliminates the possibility of personal prejudices existing among jurors, the nearest practical one (and it is not foolproof) being possibly the “vetting” of jurors, a system against which the law of Scotland has steadfastly closed the doors. Evidence of how it is used and abused in countries in which it is operated only tends to confirm the wisdom of that decision.

The court went on to observe that it should not be “lightly assumed” that jurors will pursue their prejudices in defiance of their oath and the directions of the judge. On a more practical note, the court pointed out that the broad base from which jurors are drawn means that any prejudices and biases tend to cancel each other out, and further, that the majority verdict, whereby a bare eight to-seven vote either way suffices, ensures that it is unlikely that one prejudiced juror can affect the outcome of the case.

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Miscellaneous Articles

Below are a few interesting articles for those interested in LSM theory or empirical work (they are in no particular order):

Akerlof, The Market for “Lemons”: Quality, Uncertainty and the Market Mechanism

The seminal work on adverse selection.

Jennifer Bennett Shinall, Slipping Away from Justice: The Effect of Attorney Skill on Trial Outcomes

Where the author gets close to living in living in my ratex prosecutor world. I’ll write about this paper (and Abrams and Yoon)

Abrams and Yoon, The Luck of the Draw: Using Random Case Assignment to Investigate Attorney Ability

Investigating attorney ability.

Roach, Indigent Defense Counsel, Attorney Quality, and Defendant Outcomes

Kahan, Hoffman, Evans, Devins, Lucci and Cheng, “Ideology” or “Situation Sense”? An Experimental Investigation of Motivated Reasoning and Professional Judgment

Landes, An Economic Analysis of the Courts

Baker and Mezzetti, Prosecutorial Resources, Plea Bargaining, and the Decision to Go to Trial

Weimer, Plea Bargaining and the Decision to go to Trial: The Application of a Rational Choice Model

Yang, Resource Constraints and the Criminal Justice System: Evidence from Judicial Vacancies

 

Why Are Public Defenders So Good?

In my last post, I provided a graph suggesting public defenders have above average win-rates. Most people find this surprising. Actually, this fits neatly into a model of the LSM where defense attorneys are profit maximizers and public defenders are sentence minimizers. Profit maximization does not imply sentence minimization. Instead, defense attorneys focus on “Win-Stay” and “Lose-Stay” outcomes. To see what I mean, consider Bayes’ Rule

bayesrule

All of this means that the probability of A conditional on B equals the probability of B conditional on A multiplied by the probability you assign to A, over the probability of B conditional on A multiplied by the probability you assign to A plus the probability of B conditional on not-A multiplied by the probability you assign to not-A. If the above isn’t clear, check out Bryan Caplan’s excellent lecture notes or this post at Econlog.

Here’s an example relevant to the defense attorney profit maximization problem:

P(A|B) = P(Attorney is Optimal|Bad Case Outcome)
P(B|A)=  P(Bad Case Outcome|Attorney is Optimal)
P(A) = Probability Attorney is Optimal
P(~A)= Probability Attorney is not Optimal

The profit maximizing attorney wants to persuade clients with bad outcomes that their attorney was still the correct choice. This way, the attorney still has access to that client’s network (and of course for future cases with the same client). In order to do this, attorneys should focus on increasing their clients’ subjectively held belief that they are high quality and increasing the clients’ belief that bad outcomes with high quality attorneys are common. For simplicity, let’s assume that the attorney’s clients will stay with them or recommend them to others if the attorney wins their case.

These incentives create a potential agent-principal problem in the attorney-defendant relationship. If an hour of signaling “I have a great win-rate” does more to increase the probability of Lose-Stay outcomes than an hour of work increasing the probability of winning, the attorney will invest too little (from the defendant’s perspective) in actually winning.

Public defenders, as sentence minimizers, don’t have this problem. Basically – and this can be seen in the data – the average public defender is a better agent than the average private defense attorney. Of course public defenders have obvious weaknesses – essentially zero budget for non-procedural trial inputs, for example. But with respect to procedural inputs, they should behave as if they have been given infinitely large budgets.

 

The Randazza Critique: An Objection

From commenter marcorandazza on a review of a firm in Massachusetts that apparently profiles attorney win-loss records:

This is utterly moronic.

When I hear of a lawyer who “never lost a case,” I hear “this lawyer sucks.”

Any idiot can pick winners. The real skill comes when you take a hard case. Take a dozen hard cases in a row, and lose them all. I’ve certainly taken my share of cases where I had to tell the client “you have a really low chance of winning, but your case is important” or just “you’re in deep shit, but I’ll do my best.”

I’m proud of many of my “losses.” I brag about them. In fact, one of the best things that ever happened to my career was losing a case 0-7 in the Florida Supreme Court. Ever since that case, I’ve handled lots of cases that hang on its logic. And, when my adversary inevitably makes the argument I made in that case, I say “your honor, I love my adversary’s argument. In fact, I wish that it were the law. However, I made the exact same argument to the Florida Supreme Court and the court ruled against me 0-7”

Boom.

These two dipshits should just go backpack around Europe. Their idea is trash.

I frequently encounter two chief criticisms to attorney win-rate analysis:

  • Trial inputs and output are highly heterogeneous and classifying outcomes as wins or losses is extremely complicated.
  • Many attorneys select their case portfolios for easy cases to give themselves an artificially high win-rate.

I think (1) is a better criticism and I’ve addressed it briefly before (I’ll write about it later as well). Basically, I think the argument that heterogeneous trial inputs and outputs is a serious impediment to win-rate analysis is overrated. It’s technically complicated but theoretically straightforward to consider different types of trial outcomes (e.g. accounting for plea bargains) and analyze sentence quality controlling for relevant variables.

Criticism (2) seems to me much weaker but oddly more commonly voiced. The most important theoretical objection:

Win-rates are not commonly analyzed so I’m not sure why attorneys would be aggressively pursuing high win-rates at the expense of income from potential clients.

The most important empirical objection:

Public defenders are the least likely of all criminal defense attorneys to select their cases and they tend to have win-rates above the median. If attorneys were biasing their win-rates by heavily selecting their client portfolios, we would definitely not expect to see something like this:

winrategraph

SHAMELESS PLUG

Judge William Blackstone on the proper orientation toward new ventures:

The general expectation of so numerous and respectable an audience, the novelty, and (I may add) the importance of the duty required from this chair, must unavoidably be productive of great diffidence and apprehensions in him who has the honour to be placed in it. He must be sensible how much will depend upon his conduct in the infancy of a study, which is now first adopted by public academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful nature; and of which the theoretical elementary parts, have hitherto received a very moderate share of cultivation. He cannot but reflect that, if either his plan of instruction be crude and injudicious, or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most useful and most rational branch of learning; and may defeat for a time the public-spirited design of our wise and munificent benefactor. And this he must more especially dread, when he feels by experience how unequal his abilities are (unassisted by preceding examples) to complete, in the manner he could wish, so extensive and arduous a task; since he freely confesses, that his former more private attempts have fallen very short of his own ideas of perfection. And yet the candour he has already experienced, and this last transcendent mark of regard, his present nomination by the free and unanimous suffrage of a great and learned university, (an honour to be ever remembered with the deepest and most affectionate gratitude,) these testimonies of your public judgment must entirely supersede his own, and forbid him to believe himself totally insufficient for the labour at least of this employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by diligence and attention to atone for his other defects: esteeming, that the best return which he can possibly make for your favourable opinion of his capacity, will be his unwearied endeavours in some little degree to deserve it.

On a related note, Blackstone Trial Analytics is now open for utility maximization business.