Tuesday, March 28, 2006

Law, March Madness, and GMU: standards of review

In honor of GMU getting to the Final Four--their law school being one of the most innovative and interesting around--I'd like to bring up something about the reviewability of referee's calls in sports, including NBA basketball review and the coach's red flag in football. I'll first mention it in terms of juries and criminal prosecutions, and then mention the application to sports.

The prosecution can't appeal criminal decisions; of course the defendant, if found guilty, can appeal. But generally not-guilty verdicts are final. (Unless there are errors solely during verdict instructions or at other similar points before double jeopardy has attached. Other people who have paid attention during crimlaw might be able to fill this point in.)

What effect does this have? A first guess would be that it helps defendants. But this might not be the case.

Let's break this into two phases--the trial and the possibility of appeal--and assume that the lower trier of fact has imperfect information about what will happen on appeal, but is aware that a not-guilty verdict is final, while a guilty verdict will be reviewed for error. But the standard of review for appeals courts is generally quite deferential to the lower trier. So there is, in fact, often no real, substantive, second bite at the apple. So a jury may be aware that a not-guilty verdict is permanent, and believe that they can give the benefit of the doubt to the prosecution because their decision will be reviewed. But that review may in fact not be substantive. A jury may incorrectly believe that they can pass the buck on some close-call question of fact ("was the witness credible?") or of law ("was the mere fact of drugs in the car enough to establish possession?"); or they can confuse the reviewability of these two questions; and with a general verdict there's no way to tell what the jury's questions were. So if jury decisions are corrupted by knowledge, but incorrect knowledge, of higher level review, then:
The lack of appeal for not-guilty verdicts may in fact harm defendants.
Of course, this is all empirical. How much do juries know about appealability? How deferential is review? And how willing are juries to give higher courts the chance to correct their errors? But this is another case where a first guess about who is helped by a policy can, given certain circumstances, be exactly wrong. Rent control may be the most famous example.

The application to sporting review is pretty clear. If in football the line judge, who decides whether the ball has crossed into the endzone, knows that he'll be reviewed, but overestimates the possibility of his call being overturned (since in football the standard of review is "obviously" wrong, and the review is made by the referee, not the line judge), then he may make calls he would otherwise not make. Strict standards of appellate review can corrupt the trial process itself.

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