Watching a TV drama unfold as a crime is committed, the suspect is apprehended, tried, and convicted in one hour (including commercials) has always been unrealistic to those of us who have been participants in both sides of “law and order.”
The juxtaposition of watching the entire trial seeking justice for George Floyd in real time, and celebrating my fiftieth law school graduation earlier this month has prompted me to think about the striking differences between trials then and trials now.
The famous story of King Solomon and the baby dilemma dealt with psychological prodding which ultimately resulted in a fair decision. Arguments to juries, if done well and truly based on the facts presented, can also result in fair decisions. We have come a long way from “trial by ordeal” to trial by jury.
As a public defender, I often argued to juries that subjecting a defendant to being submerged in water or having to walk through fire may have served some limited purpose in the Middle Ages, but the jury system is our best modern alternative to finding guilt or innocence.
Jury selection many years ago was quite unsophisticated. Without computers, information-gathering was often hit or miss, depending on who was gathering and what their contacts were. Modern jury selection is light years away from the earlier non-system. Jury questionnaires are submitted, facts can be checked instantaneously online, and with unlimited funds for some defendants, jury consultants can be hired to not only preview information, assist in jury selection, but also to assist at the defense table during trial to monitor juror attention, boredom and body language.
In the far, far past, demonstrative evidence or non-testimonial evidence usually consisted of cardboard panels showing charts, graphs, pictures or lists thought to be relevant for trial. The panels were akin to storyboards that preceded today’s teleprompters. Now, technology has entered the courtroom by storm. Evidence can be presented via video; judges and counsel have access to computers in the courtroom; juries are given access to video evidence in the jury room. As a judge, I once had a Small Claims Court case where the defendant brought in an antique car fender that had been improperly coated, resulting in unsightly and unacceptable surface pitting. The defendant refused to pay and was being sued for the amount due. In today’s world, the fender would have appeared in a close-up video; either way, it was certainly demonstrative. (The case against him was dismissed.)
Litigants who do not speak English as their primary language or are unable to understand the proceedings because they are deaf face additional challenges in court. I remember a hearing in a criminal case that required a Spanish interpreter for the witness. Because all of the usual court interpreters were involved in other cases on that day, my staff contacted a local agency that provided interpreters for many different languages. With my limited understanding of Spanish, I became aware that the Spanish-speaking witness and the interpreter were having an argument as to the meaning of a word. I was forced to strike all of the witness testimony and adjourn to another day when we could get a properly trained court interpreter.
Fast forward to the present. My friend in Milwaukee, Debra Gorra Barash, a court-certified American Sign Language interpreter, has come up with a brilliant one-year program to train interpreters for court and other work. Concerned that interpreters were not receiving proper training, her program is being implemented at the University of Wisconsin-Milwaukee School of Continuing Education and will graduate its first class in August. Participants will have taken 280 hours of instruction in seven different areas. Wisconsin currently has no minimum standards for court interpreters, making this program a much needed first. According to Barash. “If they’re not able to understand, a person’s constitutional rights could be violated.” Amen to that.
The administration of justice is constantly evolving. What will technology and human ingenuity bring to the courts of the future?
“Tzedek, tzedek tirdof, l’maan tichyeh” – Justice, justice you shall pursue – that you may live…
Audrey Brooks is an Emeritus Judicial Member, State Bar of Wisconsin, lifelong volunteer, and current Tucson Hebrew Academy Board Trustee.