Articles The Jury's Rise as Lie Detector George Fisher' CONTENTS 1. THE ORDEAL AND THE JURY TRIAL: THEORETICAL PRELUDE ..... 585 A. Seeking Divine Sanction for Criminal Verdicts ............ 587 B. The Special Case of Capital Convictions ................ 595 C. The Reality Beneath the Illusion ..................... 600 II. THE RISE OF DEFENSE WITNESSES ............... ........ 602 A. Curtains Open: The Sixteenth Century. ........ ........ 602 B. The Act To Abolish Hostilities with Scotland ..... ........ 609 C. The Treason Trials and the Treason Act of 1696 . .. .. 6 15 III. COPING WITH CREDIBILITY CONFLICTS .................... 624 A. Witness Competency Rules and the Rule of Bethel's Case .... 624 B. Empirical Interlude: Criminal Trials in an Eighteenth-Century Court ...................... 638 C. Alibis and the Problem of Unavoidable Conflicts ...... 650 IV. THE RISE OF DEFENDANT TESTIMONY .................... 656 A. The Downfall of Witness Competency Rules in Civil Cases .. 659 B. The Downfall of the Prohibition Against Defendant Testimony in Criminal Cases ................................. 662 Associate Professor, Stanford Law School. I would like to thank Al Alschul"r. Barbara Babcock. Simon Devereaux. Eric Foner, Barbara Fried, Lawrence Fnedman. Tom Gallants. David Gold, Hank Greeley, Tom Green, Tom Grey, Dick Helmholz, Adam Hirsch. Dan Klerman. John Langbcn. Michael Macnair, Barbara Shapiro, Avi Soifer, Bob Weisberg, and Kenji Yoshino for guiding my research and commenting critically and perceptively on earlier drafts. Alexis Hailer. Allison Marston. Tamt Swiger. Michael Risher, Mark Houle, and Lisa Tingue contnbuted long hours of excellent research support Xia Chen and Andrew Gurthet of the Stanford Law School Library collccted dozens of far-llung sources And Ariela Dubler and her editorial colleagues have worked with care and insight 575 The Yale Law Journal [Vol. 107: 575 C. The Link to African Americans' Right To Testify: Civil Parties ................. .......... 671 D. The Link to African Americans' Right To Testify: Criminal Defendants ............ .......... 674 1. The Campaign of 1862 ....... .......... 676 2. The Campaign of 1864 ....... .......... 678 3. The Campaign of 1866 ....... .......... 683 a. Massachusetts .......... .......... 683 b. Other States ............ .......... 691 E. The Link to African Americans' Right To Testify: Assessing the Evidence .......... .......... 696 V. THE ALLURE OF THE BLACK Box ........................ 697 APPENDIX A: STATUTES AND CONSTITUTIONAL PROVISIONS PERMITTING TESTIMONY BY CIVIL PARTIES .......................... 709 APPENDIX B: STATUTES AND CONSTITUTIONAL PROVISIONS ABOLISHING RULES AGAINST TESTIMONY BY NONWHITES ................. 712 19971 Jury as Lie Detector We say that lie detecting is what our juries do best. In the liturgy of the trial, we name the jurors our sole judges of credibility and call on them to declare each witness truthteller or liar.' All hierarchies of rank, learning, and technical prowess give way in the face of this asserted power of common jurors to spot a lie: In most jurisdictions today, no trial judge may advise the jury that a witness has lied.2 No psychiatric expert may comment on a witness's credibility. 3 Rarely may a polygraph technician lecture to jurors about a witness's pulse and pressure, tension or temperature.4 The job of lie I. See, e.g., FIFTH CIRCUIT CRIMINAL JURY INSTRUCTIONS § 1.09 (1990) ("You arc the sole judges of the credibility or 'believability' of each witness and the weight to be given the witness's testImony."): CALIFORNIA JURY INSTRUCTIONS, CRIMINAL § 2.20 (West 1993) ("You arc the sole judges of the believability of a witness .. "); 17 LOUISIANA CIVIL LAW TREATISE: CRIMINAL JURY INSTRLCTIO.S § 3.04 (Cheney C. Joseph, Jr. & P. Raymond Lamonica eds.. 1994) (-(You arc) the sole judges of the credibility of witnesses .... "); WISCONSIN JURY INSTRUCT'ONS. CRIMINAL § 300 (1962 & Supp. 1976) ("You are the sole judges of the credibility of the several witnesses ....- ): United States v Barnard. 490 F.2d 907, 912 (9th Cir. 1973) ("Mhe jury is the lie detector in the courtroom."). 2. Even in our federal system, which still permits judges to comment on the evidence, a judge who dares comment on credibility risks likely reversal. See. e.g., Quercia v. United States. 289 U.S. 466. 471 (1933) (reversing a conviction after the judge said that wiping one's hands, as the defendant had done on the stand, was a common sign of lying, because "[i]t was for the jury to test the credibility of the defendant as a witness"). The great majority of American states long ago barred judges from commenting to juries on the weight of the evidence or the credibility of the witnesses. In a small number of states, however. judges still may do so. See infra note 597. In England, where judges generally retain the power to comment on the evidence. it is nonetheless clear that they "should never give an express indication of [their) own disbelief in relation to the evidence of a witness, especially the evidence of an accused, even in a case in which the evidence warrants incredulity." ADRIAN KEANE, THE MODERN LAW OF EVIDENCE 31 (3d ed. 1994) (citing a 1988 case in which the court criticized a judge for telling the jury he thought the defendant was lying): see ROSEMARY PATTENDEN, JUDICIAL DISCRETION AND CRIMINAL LMGATION 180-81 (1990). But not that long ago. a commentator could say that "[s]uch remarks as-I should not be surprised, gentlemen of the jury, if you will attach but very little weight to the testimony of Mr.' are not uncommon." PENDLETON HOWARD. CRIMINAL JUSTICE IN ENGLAND 377 (1931). 3. An expert's opinion about another witness's credibility ordinarily does not assist the jury. the cases say, and so falls short of the threshold for admissibility of expert evidence. See FED. R. EvID. 702; see also, e.g., Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir. 1992) ("It is the exclusive province of the jury to determine the believability of the witness .... An expert is not permitted to offer an opinion as to the believability or truthfulness of a victim's story."); United States v. Benson. 941 F.2d 598. 604 (7th Cir. 1991) ("Credibility is not a proper subject for expert testimony: the jury does not need an expert to tell it whom to believe .... ), modified, 957 F.2d 301 (7th Cir. 1992): State v. Boston. 545 N.E.2d 1220. 1240 (Ohio 1989) (holding that an expert may not give an opinion about the veracity of a child witness). Some courts and commentators, however, reject such categorical holdings and say that expert testimony at times may help the jury assess credibility, especially when the witness is young or mentally impaired. See. e.g., United States v. Shay, 57 F.3d 126, 131-34 (1st Cir. 1995); Margaret A. Berger. United States v. Scop: The Common-Law Approach to an Erpert's Opinion About a itmess's Credibility Still Do's Not Work. 55 BROOK. L. REV. 559 passim (1989). 4. The very case that stands for the system's suspicion of scientific evidence, Frye v. United States. 293 F. 1013 (D.C. Cir. 1923), rejected lie-detecting machinery. In the few years since the Supreme Court held that the Federal Rules of Evidence displaced the Frye test. see Daubers v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993), two federal appeals courts have retracted per se bars against polygraph evidence. See United States v. Cordoba, 104 F.3d 225, 228 (9th Cir. 1997); United States v. Posado. 57 F3d 428. 434 (5th Cir. 1995); see also United States v. Piccionna, 885 F.2d 1529. 1535 (11 th Cir. 1989) (rejecting the per se bar pre-Daubert). A third appeals court has restated its general ban. See United States v. Sherlin. 67 F.3d 1208, 1216 (6th Cir. 1995) ("As a general rule, the results of a polygraph are inadmissible.-) see also United States v. Kwong, 69 F.3d 663,668 (2d Cir. 1995) (stating that -[elvcn assuming that polygraph results are admissible under Rule 702 (and we are unlikely to so hold because the specific testimony here would not likely 'assist the trier of fact')"). I have found only three federal district court cases in which The Yale Law Journal [Vol. 107: 575 detecting belongs to the jurors alone. Nor may we later, once the jurors have done their job of sifting truth from falsehood, review how they did it. In a trial process in which we hide so much of the law and evidence from the jurors, this they hide entirely from us. We do not leave our jurors wholly unequipped for this task of lie detecting. They come to court, as we so often tell them, with their common sense and may reject any evidence that defies it. Inside court, we give them three more lie-detecting tools: the oath, demeanor evidence, and cross- examination. Every witness must promise to tell the truth, face the jurors for their scrutiny, and endure the challenge of opposing counsel. If these tools are lacking, we do not put the jury to the task of detecting lies. Hence we usually do not ask jurors to judge the truthfulness of an out-of-court witness. But this general bar against hearsay is our only broad exception to the otherwise unqualified rule that leaves questions of credibility to the jury. Of course, many cases impose no particular burden on the jury's powers to ferret out lies. In many cases there is no conflict in testimony. In many others there is a conflict, but the jury is able to attribute it to mistake or misperception or memory loss. In many cases, however, two witnesses tell two stories that cannot innocently be reconciled. Here the jurors must call someone a liar-indeed they must call someone a perjurer. Still, at least in civil cases, in which the jurors must merely say which witness was more truthful, their task remains relatively simple.