Co-written with Michael Panfil
Last week, Troy Davis was executed by lethal injection following a highly controversial trial fraught with suspect evidence and ending with a conviction broadly believed to be unjust. In the wake of Davis' execution, the legal and political conversation has clustered around the propriety of the death penalty and possible racial overtones in the conviction process. However, one area has not yet been addressed: Davis died at the hands of a legal system that treats juries like children, thereby severely restricting important -- even life-saving -- testimony, for fear that lay jurors won't know what to do with it.
The facts around the Davis trial are well known: seven of the nine eyewitnesses later recanted, another man confessed to the murder, and yet the jury heard none of this evidence and now Davis is dead.
But why wasn't the jury allowed to hear and weigh these facts, which, while disputed, were nonetheless integral? The answer lies with our paternalistic legal system. The American judiciary has decided that since lay juries aren't legally trained to judge whether or not a witness is lying, or what kind of value to assign to contradictory pieces of evidence, it's better to just not allow the messy stuff in.
"There is often a lack of faith in the jury's ability to discern truth, that is reflected in the decision to withhold information from the jury," scholar Elaine D. Ingulli wrote in her 1986 Valparaiso Law Review article, "Trial by Jury: Reflections on Witness Credibility, Expert Testimony, and Recantaton."
The upshot of restricting which evidence is allowed, is that a potentially unrepresentative section of the truth is used to make a monumental decision.
The aim of severely limiting the evidence pool is to protect juries from themselves: in other words, to ensure that a jury doesn't deliver a false positive upon hearing a piece of suspect evidence.
However, in the Davis case, as well as in countless cases before it, the result has been exactly the opposite:
"If I knew then what I know now, Troy Davis would not be on death row," one of the jurors, Brenda Forrest, has said.
Jurors and Recanted Testimony
Much of the controversy in the Davis case has centered around the recanted testimony of seven of the nine eyewitnesses who originally spoke out against Davis. In 2009, after the recantations came out, Davis petitioned the Supreme Court for a new trial, and the court granted an eleventh hour stay on Davis' execution. In an Amicus Brief accompanying Davis' Habeas Corpus petition, a who's who of prominent prosecutors maintained that "Mr. Davis has not had a full opportunity for an evidentiary hearing on his allegations of innocence, including his allegations that virtually all of the trial evidence implicating him now has been discredited through recantations and new evidence of his innocence."
The Supreme Court agreed, stayed the execution, and directed the District Court to decide whether or not to grant a retrial.
What followed was not a retrial in front of a jury, but a hearing in front of Eleventh Circuit Judge William T. Moore Jr., who determined that he would only grant Davis a retrial if Davis proved by "clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence." In other words, the judge didn't trust the jury to weigh problematic evidence (recanted testimony is always problematic since it brings into question the overall reliability of a witness who would lie in the first place). Instead, he decided to weigh the new evidence himself, figure out whether Davis was guilty or not, and to grant a new trial if, and only if, he personally determined that no jury on earth would have convicted Davis. After weighing the evidence himself, Moore decided Davis wouldn't get a new trial.
Judge Moore's determination goes against everything we associate with a trial by jury: that people in America are judged by a panel of their peers, who hear all the evidence against the accused and serve as the sole arbiters of whether or not the accused is guilty.
So why did this happen? Perhaps because our legal system doesn't actually trust jurors. Sure, a trial by one's peers is a nice idea, but judges, lawyers and legal scholars are suspicious of jury competence. The suspicion is well founded: studies have shown that juries can, and do with regularity, misinterpret evidence.
Viewed in this light, Judge Moore's ruling isn't quite as puzzling. Courts have always been wary of recanted testimony. Witnesses can take back their testimony for a host of reasons: guilt over incarcerating a friend or family member, fear of retribution, later coercion and memories distorted by time, for starters.
But coddling juries by not letting them hear potentially problematic testimony -- especially in the age of DNA testing, which has revealed that testifying under oath does not always yield truthful testimony in the first place -- goes against the whole "trial by jury" concept. If a jury can't hear all the relevant evidence, then why have a jury in the first place?
Jurors and Hearsay
As the Davis case was being appealed, another man, Sylvester "Red" Coles, confessed to his friends that he had in fact committed the murder. But the jury never heard this evidence either: the testimony was excluded as hearsay since it didn't come directly from Davis.
The American evidence system's strict rules against hearsay have long been controversial, and many other countries -- including most of Europe and Canada -- allow such evidence in.
Hearsay statements are statements made by an individual without firsthand knowledge, and are generally not allowed at trial. For example, if John was on trial for hitting Jane, only Jane, John, and anyone who saw the altercation first hand would be able to testify. By contrast, if Jane later told Bob that John hit her, Bob wouldn't be able to testify about it, since Bob didn't see it first hand.
Courts don't want to engage in a 'he said, she said' debate because they fear that a jury could get confused. However, barring this type of information can have a tremendous impact when a man's life hangs in the balance. Would evidence of Coles' out of court confession, if known to the jury, have been a deciding factor in the Davis case? The legal system's distrust of hearsay creates this doubt by not allowing the jury to use potentially important evidence in deciding the fate of an accused.
Distrust of hearsay evidence has a long history in America. This traditional distrust, however, is even more troubling when compared to other legal systems. As David Sklansky wrote in the Supreme Court Review last year, "hearsay law is such a prominent feature of our adjudicatory system that judges, lawyers, and law professors sometimes lose sight of how odd and counterintuitive the rule is, and how unusual from a global perspective."
The Davis case is certainly not the first where potentially crucial evidence has been barred as hearsay. In the OJ Simpson trial, Simpson's ex-wife, Nicole Brown Simpson, told relatives, friends, and a battered women's hotline counselor that Simpson was stalking her, had assaulted her, and had threatened to kill her. "[Although] the relevance and probative value of these statements struck the judge as obvious and compelling" Sklansky wrote, "the hearsay rule would not allow it."
The purpose of barring hearsay is to rid the court of untruthful or unfounded evidence. That's certainly important, but of equal significance is the decision to leave out pieces of evidence that could mean the difference between an individual's life and death.
However, the dilemma over whether or not to allow hearsay evidence is misplaced. A legal system either accepts juries as competent in weighing all evidence, or chooses to employ a professional decision maker (like a judge) to do it instead. The American jury system has chosen the first option, but not fully. The current choice is to hedge, by letting cases go to a jury, but then treating the jury like a child and depriving it of information it needs to decide the case. The outcome is that truth gets a raw deal.
Follow Julia Neyman on Twitter: www.twitter.com/bunsofstealblog
Sister Mary Ann Walsh: The Death Penalty is Political Sport at Its Most Barbarous
Barbara Crafton: The Death Penalty Is America's Blind Spot
Stephen Dear: What I Learned at My Arrest at Troy Davis' Execution
Antoine Williams: "They asked me to describe the shooter and what he looked like and what he was wearing. I kept telling them that I didn’t know. It was dark, my windows were tinted, and I was scared. … After the officers talked to me, they gave me a statement and told me to sign it. I signed it. I did not read it because I cannot read."
Jeffrey Sapp: "I got tired of them harassing me, and they made it clear that the only way they would leave me alone is if I told them what they wanted to hear. I told them that Troy told me he did it, but it
wasn’t true. …."
Darrell Collins: (age 16) "After a couple of hours of the detectives yelling at me and threatening me, I finally broke down and told them what they wanted to hear. They would tell me things that they said had happened and I would repeat whatever they said."
Dorothy Ferrell: "From the way the officer was talking, he gave me the impression that I should say that Troy Davis was the one who shot the officer like the other witness had .... I also felt like I had to
cooperate with the officer because of my being on parole. ... The truth was that I didn’t see who shot the officer." Visit: ProsecutionForTreason.com
In practice, hearsay is not as exclusionary as it appears. There are many exceptions and exemptions to the hearsay rule, as Ms. Neyman no doubt learned in first year Criminal Law class, and a key one basically lets the judge admit hearsay evidence if he or she feels it is otherwise reliable. When I have seen the hearsay rule invoked, it's almost inevitably to the defense's benefit, as the people bear the burden of proof at trial.
Be careful what else you wish for, because most excluded evidence are things like the defendant's priors.