Invisible Error

When trial becomes a luxury, retrial can start to look downright decadent. Scholars have documented the “vanishing trial” in recent decades, exploring the various causes and effects of declining trial rates. Retrial, if mentioned at all, is portrayed as a relatively inefficient vehicle for error correction at best. At worst, it is seen as a threat to the sanctity of the ever-rarer jury verdict. But the jury trial is only endangered, not yet extinct. And continuing to protect the constitutional right to a jury requires appreciating the role of retrial within the due-process framework. When the jury’s verdict contradicts the great weight of the evidence, the trial judge is authorized to set aside that verdict and order a new trial. This power, sometimes called the “thirteenth juror” rule, dates back to the Blackstonian era. It exists in both civil and criminal cases, in both state and federal court. Over time, however, the trial court’s power to review the weight of the evidence has fallen into a state of doctrinal disorder and inconsistency. This Article argues that the judge’s ability to order a new trial on the weight of the evidence should be understood as a safeguard against invisible error. Invisible error arises when improper jury decision making hides behind the shroud of rules protecting the jury’s deliberative secrecy. Invisible error can be caused either by the jury’s innocent misunderstanding (of the court’s instruction or of an attorney’s presentation of evidence) or by more egregious juror misconduct or undisclosed bias. The attorneys and the court see only the result of the jury’s decision making, not the erroneous procedure that led to that result. The possibility of such error, however, is no reason to jettison the jury altogether. The jury has strengths that cannot be matched by judges alone, including the power of group decision making, a greater diversity in its members, and a more accurate reflection of the community. Judges, by contrast, possess greater experience with a range of cases and a better understanding of how the facts and the law interrelate in the case. The judge’s power to review the weight of the evidence complements the jury’s role and protects the integrity of the trial process. Even when the judge cannot identify a particular process error, the judge may have an intuitive sense that a jury has gone astray. Weight-of-the-evidence review protects both of these complementary roles: the jury is given the independence to allow full, free, and confidential deliberation, while the judge is permitted to exercise the discretion gained from experience to prevent a miscarriage of justice. Even in the era of the endangered jury and vanishing trial, judges should embrace their power to order a new trial when justice demands it