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Fairness is a one way street

You know what the word fairness means. So do the people sitting to your right; and so do the people to your left. The problem is, you don’t know what each other means when the word is spoken.  

You may assume that everyone in a group has a common understanding when they say a process was “fair”. However, in truth, each of you have your own private, and deeply subjective, beliefs for the concept. What is common in your regular day may not be so common for other people.

The problem is simple. It’s a failure to define our terms. Defining your terms is fundamental to any endeavor. The meaning of fairness is no exception. You may recall the saying:

“If you would converse with me, you must first define your terms.”  

~ Fran├žois-Marie Arouet (a.k.a Voltaire)

Voltaire reminds us that “common sense is not so common”. To many of us, it goes without saying that washing your hands includes using soap. At the same time, people have gone to the trouble of making hundred of thousands of signs showing restaurant employees that “washing” your hands includes using soap. Presumably, these signs were created to address a real problem. Next time you are at your favorite restaurant, see if they have one of these “soap included” signs in the bathrooms. If such a sign is absent, then they have failed to defined washing to include using soap. Before you eat the daily special, think about this…and then proceed at your own risk.

What happens in a courtroom when you rely on the assumption that we all have a common understanding when we say something is fair? To many of us, it goes without saying that being fair means treating each other equally. You are taught in grade school that being fair means no special treatment for the “favorites.” No one likes the teacher’s pet.  Similarly, equality is also the primary dictionary explanation for what it means to be fair.  In various shapes and sizes, our mental frame for fairness equates it with equality.  When you see a person treated unequally, for no good reason, doesn’t it seem unfair. However, the courtroom is another story.

Fairness in a courtroom is a one way street. Our Constitution guarantees the people due process. Meaning what are the legal obligations of the government before they take away a person’s life, liberty or property. Due process defines legal fairness.

Our Constitution guarantees rights to the people. It is not government that has a first amendment right to free speech – it is the people. It is not the government that has a right to bear arms – it is the people. It is the not the government that has a right to due process – it is the people. The Constitution was created to protect our citizens against harm by government, not the citizens it accuses.

“Fair” is a legal term of art in a jury trial. Unlike the classroom, the law does play favorites. Both sides are not treated equally. The accused in a criminal case is presumed innocent. She is supposed to begin presumed correct and the prosecution presumed incorrect. This sounds a lot like a teacher’s pet.
The unequal treatment does stop at this presumption.  The burden placed on the prosecution to overturn the legal presumption of innocence is the most difficult in all of law – beyond reasonable doubt. On the other hand, the accused has no burden. Being “fair” in a courtroom means acting in accordance with these legal rules. Not the rules we learned in our grade school classroom.

If we want jurors that can be legally fair, then it seems unfair to ask them their ability to do so, without first telling them what “legal fairness” means. Failing to define fairness permits jurors to attach any meaning they choose. How likely is it when a juror is asked if they can be fair during jury selection, that they will happen to pick the meaning we use in the courtroom, when legal definition contradicts our inherently intrinsic beliefs about what it means to be fair?  More importantly, why are we gambling on jurors getting it right? Take a page out of a very old book: refuse to have the conversation without first defining your terms.