Joel Jacobsen

American judges often say that the rules of evidence withhold relevant evidence from juries to avoid the "risk of misuse."   The very idea that jurors can "misuse" truthful information is oddly inconsistent with the institution of the jury itself.  If we can't trust juries to use the truth in a reasonable way, why have juries at all?

When Justice David Souter tried to explain why jurors are prevented from learning about a defendant's criminal history, he slipped into the vocabulary of a cornpone preacher warning against the fleshpots of the city: such evidence can "lure a juror into a sequence of bad character reasoning." 

But unless we assume jurors are irrational (an assumption that would make the entire Anglo-American legal system absurd), the juror's line of reasoning must be logical or it wouldn't need guarding against.  And if it's logical, how can it be bad?  The best Souter could do was to say it's bad because it's forbidden by rules promulgated to prevent bad reasoning.

Justice Robert Jackson, usually as practical as Justice Souter is woolly-headed, did a little better when he said that the evidence is not rejected because it's irrelevant; "on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge."  

But this just adds a couple layers of begging the question.  When does persuasion become overpersuasion?  When it denies a defendant a "fair opportunity" to defend him- or herself.  And what's "fair"? 

In common speech "fair" has many meanings, ranging from good weather to blond hair.  When used in the law, though, it has just two core meanings.  First, there's even-handedness.  Mom's being fair if the cake is divided into pieces of exactly equal size (unless one has more frosting). 

Second, there's parity.  If every contestant has an equal chance of winning, the contest is fair.  If an adult and a 6-year-old are competing, the Halloween carnival's cakewalk is fair.  Monopoly isn't.

The schedule-makers of Major League Baseball pursue the first type of fairness.  Every team in a division plays the same teams the same number of times.  If Detroit wins 90 games but Cleveland wins 91, those victories will have come against the same competition (except, of course, for their games against each other). 

The schedule-makers of the National Football League aim for the second type of fairness.  The worst team of one season is, at least in theory, given the easiest schedule the next year while the Super Bowl champion has the toughest, increasing the likelihood that any given team will win half its games – but only half. 

(I realize this doesn't take into account the intra-divisional games.  Nor does it explain the Saints, the Cardinals, the Browns, the Jets, the Lions, or, until this last year, the Bengals.  Tinkering with the schedule only takes you so far.  But it's the thought that counts, at least for purposes of this post.)

When Justice Jackson said that some types of evidence deprive a defendant of "a fair opportunity to defend against a particular charge", he didn't mean the baseball type of fairness.  For the prosecution to "overpersuade" the jury with evidence that the defendant was caught doing the same thing twice before is fair in the same sense that it was fair to require the pathetic Boston Braves of 1935  to play the mighty Chicago Cubs. 

 Sure, the pitilessly symmetrical schedule meant the Braves lost at a depressing rate, but that wasn't the fault of the schedule – it was the Braves' fault for not signing better players to support their star center fielder Wally Berger.  Similarly, if the criminal defendant wants to avoid having his prior felony record flung in his face, he should take care not to acquire one.

"Overpersuading" the jury is unfair only in the football sense, because overpersuasion tends against parity between prosecution and defense.  In a case involving a confession, Justice Jackson wrote, "Any lawyer who has ever been called into a case after his client has 'told all' and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed."   A trial in a case like that is like pitting the unbeaten Dolphins of 1972 against the Racine/Chicago/St. Louis/Arizona Cardinals of any year.