The Idol Jury Part IV

As discussed in a previous posting, this season of American Idol saw the introduction of a new element to the standard weekly elimination of contestants: the judges “veto” of the voters’ choice for elimination. Under this system, the judges were given one opportunity during the season to save a contestant who was voted off the show. In order to successfully invoke the veto power, at least a majority of the four judges were required to agree to its use for a particular contestant. As a penalty, however, the week after the veto was used two contestants would be eliminated.

In order to decide whether to use the veto to save an otherwise eliminated contestant, every week the eliminated contestant was required to perform the song he/she had chosen for the week for the judges. After the performance, the judges were theoretically supposed to deliberate and then decide whether to invoke the veto. However, due to airtime constraints, the judges typically deliberated during the performance and announced a decision promptly thereafter. Throughout the season, the question of who would be saved dogged the competition, and the judges’ handling of the veto decision-making process drew criticism from contestants and the public alike.

Several weeks from the end of the competition, Matt was eliminated. After his performance, the judges seemed to engage in a quick yet intense discussion and then announced that they were invoking the veto to save him. However, Simon cautioned him not to celebrate too much, as saving him then did not mean anything other than that he would have the chance to be eliminated the following week. Thus, the meaning of the veto was somewhat tempered by the idea that it was only a provisional success for the contestant, who would then have to return to the stage the following week and make his case for staying in the competition to the viewers.

It might seem that the judges’ veto is an example of something completely outside of a potential juror’s experiences and outside of the standards of the court system. However, there are several parallels and lessons that can be taken from this new system of American Idol governance. Essentially, the judges’ veto is a stylized version of the appellate review system, with the exception that all the Idol judges are able to order is the remand of the contestant for what amounts to a new trial. The judges told the voters that they were wrong in their choice of which contestant to eliminate. Yet the judges are also limited in what they can do to help the contestant other than offering him/her a new trial the following week. If the contestant is unconvincing the following week then that is the end of his/her time on the show.

This system exposes potential jurors to the reality that their decision, regardless of how well considered, might be reversed on appeal. As such, this offers a good lesson in tempering one’s expectations as a juror and also in understanding the place of the juror in the overall legal system. Similarly, for those who might sit on the jury of a remanded case in the future, the judges’ veto system offers an understandable explanation of how the case came before a trial court for the second time. Since the appellate process is frequently far more technical as a matter of law than lay persons and potential jurors can easily understand or relate to, the judges’ veto system on American Idol not only provides a lucky contestant with a second chance at the competition, but also provides lay people and potential jurors with at least a superficial understanding of what the appellate court system can do.

For more information on American Idol, see http://www.americanidol.com/ .

Territorial Control and Validation

Aficionados of the television show 24 – or even those who simply watched the first part of this season – know that Jack Bauer will routinely be called on to save the United States. For the most part, he must save the United States from foreign enemies, even if, along the way, these enemies have co-opted Americans to their cause. The foreign enemies have been terrorists of many varieties, such as genocidaires, human traffickers, and rogue persons with access to devastating weapons.

The closest any foreign enemy in 24 has come to being a state was at the beginning of this season, when the regime of General Juma – a regime regarded as illegitimate by the United States – threatened to harm Americans if President Taylor did not call back American troops who were due to help the legitimate government of Sengala regain control of the state. At the beginning of this season, viewers discovered that the Juma regime was committing genocide in Sengala, and that it was not above taking the lives of its citizens in order to advance its cause. Even though the Juma regime was regarded as illegitimate by President Taylor and her cabinet, the decision to invade Sengala was subject to debate and deliberation. This was due in no small part to the fact that, as a matter of law, the United States would in fact be invading the territory of another state, regardless of the status of the regime which controlled the territory. When General Juma and his subordinates began to threaten the United States, their constant refrain was that they were doing what was good for their country, and that they had been forced to take action against the United States because of its hostile intentions towards Sengala. Throughout the Sengala storyline, it was made clear that General Juma and his supporters controlled the use of force and violence within the territory of Sengala, although there were pockets of resistance on the ground. As indicia of this overall control, we see an established military command structure, unique uniforms used by Juma’s men, and the use of the Sengala flag as a method of legitimating the Juma regime’s control over Sengala. Regardless of whether the world saw the Juma regime as legitimate, it was still, legally, the entity controlling Sengala.

Once General Juma was killed, the overt storyline of 24 shifted away from Sengala and, concomitantly, from the thorny issues of territorial control in international law. However, the issue of territorial control returned to the plot soon after in a less obvious form. Throughout the earlier episodes of this season, the viewer was slowly introduced to the character of Jonas Hodges. Hodges’ exact identity and role in the storyline were kept well disguised until part-way through the Sengala story. Subsequently, the viewer learned that Hodges was the president of Starkwood Industries, a US defense contracting corporation with what emerges as rather questionable business practices and relations with the Juma regime.

Ultimately, it is determined that Hodges, acting through Starkwood, has acquired a significant bio-weapon. It is also learned that the Starkwood corporate facility – located outside Washington, D.C. – is a large compound that is guarded by a number of trained mercenaries in the employ of Starkwood. In accordance with US law, President Taylor requires that a search warrant for the portion of Starkwood where it is (erroneously) believed that the weapon is being held. Additionally, she agonizes over the idea of sending in federal forces to execute the warrant not only because of taking such actions against other American citizens but also because of the risk that Starkwood would retaliatory measures against the United States. When the FBI is sent to the Starkwood facility to execute the search warrant, the FBI contingent is a large show of force out of fear that Starkwood’s agents might take hostile actions against federal action; that fear is well-founded. Upon landing helicopters in the Starkwood compound and completing a fruitless search for the weapons, the FBI agents are surrounded by a contingent of armed Starkwood agents, who draw their weapons on the FBI agents. These Starkwood agents are dressed in a specific Starkwood uniform, have a clear command structure, and owe allegiance to Hodges and Starkwood. Outnumbered, the FBI agents retreat to their helicopters and leave the Starkwood compound. From this exchange, it is abundantly clear that Hodges and Starkwood control the use of force and violence in the space of the Starkwood compound. Perhaps this is best evidenced by Hodges’ threat that he would order the Starkwood agents to open fire on the FBI agents if they did not leave. It is also abundantly clear that the law observed within the Starkwood compound is that set out by the Starkwood chain of command.

Following this encounter with the FBI, Hodges continues to ready the bio-weapon for use against locations throughout the United States. He has a telephone exchange with President Taylor in which he divulges the existence of missiles equipped with the bio-weapon and uses this to gain a private meeting with her at the White House. During this meeting, Hodges routinely claims that he has taken his actions because he is trying to defend his idea of America. He is angry that the Senate has been investigating Starkwood’s activities and is also displeased that President Taylor has not made the White House as open to him as her predecessor did. Hodges continues to state that he built his company from nothing and, in so doing, has kept the American people safe for years. The rationale for using bio-weapons on his own people is that everyone, including President Taylor, has to learn a lesson about how to treat him and Starkwood. Hodges’ proposal to President Taylor is that he and Starkwood have a direct hand in crafting all US military policy in exchange for not releasing the bio-weapons. The proposal, which President Taylor rebuffs, would have, in her words, made Starkwood the “fifth branch of government.” At the end of this meeting, the FBI is able to secure the bio-weapons – or so it seems at the time – and Hodges is arrested.
The obvious plot connection between Juma and Hodges is that they worked together to develop and test a bio-weapon on the people of Sengala. However, outside of this connection, there are important parallels that raise points regarding how territory and its control can be used as a source of validation for groups seeking to change their governments and states.

The similarities between the Juma regime and Starkwood under Hodges are striking. Both entities lay exclusive claim to a specific space, within which they control the use of violence and are not afraid to use it on those regarded as interlopers. Both were willing to use deadly force against citizens of the state they swear allegiance to in order to advance their own agendas, although Juma’s acts of genocide were not speculative, while Hodges was thwarted in his attempts to release the bio-weapons. Both were willing to disregard the will of the people in electing a government on a specific platform in order to further their own aims. Both used a specific chain of command, had a loyal group of followers that acted on these commands, and used indicia such as uniforms to identify themselves and their followers as belonging to a certain ideology and group. Both saw themselves as being targets of threats from the outside world, particularly the United States. And, perhaps most importantly, both used the specific spaces they laid claim to as their defining place in the world. Sengala was Juma’s “country” and he would not part with the areas that he controlled. In the same vein, the Starkwood compound represented Hodges’ life’s work and he would not part with it.

Thus, what we see is that extremist ideology is strengthened and to a certain extent validated through the control of territory. In the case of Juma, territorial control provided him with a semblance of legitimacy in the international law realm, while also giving him a rallying cry with which to recruit and retain followers. In the case of Hodges, territorial control gave him a legitimate place within which to develop an organization loyal to him and his cause, and a place to seek shelter when he was under attack from outside entities, including his government. While ideology plays a vital role in extremist regimes and ideology, an examination of the Juma and Hodges storylines in 24 highlights the importance of territorial control in order to further and strengthen these ideologies.

Information regarding 24 is available at http://www.fox.com/24/.

Defeating Justice?

In a previous post, I discussed the concept of creating justice within the context of the television show Lie to Me. The particular storyline at issue was one in which a female member of an Army unit fabricated an allegation that she had been raped by her superior officer because, as the audience comes to find out, the superior officer had raped another member of the unit, who deserted rather than tell her story in what she viewed as a hostile legal and social environment. The argument made in my post was that the officer who fabricated the story did so in order to create a situation where justice would be done for the act of rape, even if the particular allegation was false. Ultimately, the true victim came forward to tell her story, the offending officer inadvertently admitted to the rape and was arrested, and it seemed that the social order within the military community was restored.

One of the two storylines in last week’s episode of Lie to Me, “Depraved Heart,” presented an entirely different concept of creating justice and the restoration of status quo to those harmed by the actions of a particular individual. At the beginning, the story seems to closely parallel the headline-grabbing facts of the Bernard Madoff case. Foster and Loker are hired by the United States Securities and Exchange Commission (“SEC”) to investigate an investment manager named Hollin and his business dealings because he has been found to have operated an investment swindle similar in size and effect to that in the Madoff case. Hollin himself is portrayed as an ill old man. He shared control of his investment firm with his daughter, Caroline, although Hollin maintains that he alone acted to swindle the firm’s clients and that Caroline had no knowledge of his actions. He also maintains that the missing money from his clients – many of whom gave him their life savings and are facing dire financial straits as a result of his actions – is gone.

Throughout the course of several interviews with Hollin and Caroline, Loker demonstrates a sense of disgust with both of them, and is extremely hostile to them, to the point where Foster has to conduct interviews without him. During one of these interviews, Hollin admits that the swindle was actually the result of his daughter’s actions and that he has decided to take the fall for her because she has a family and long life ahead of her, while he will certainly die soon. To Hollin, his daughter made a mistake and he is doing the noble thing that any parent would do in protecting her. He then admits to Foster that his clients’ money is not in fact gone. Hollin and Foster make a deal: he will help her and the SEC find and distribute his clients’ money and Foster will not say anything to the SEC about Caroline’s real involvement in the swindle. Foster accepts this deal because to her the best way to achieve justice for the victims of the swindle is to allow them to retrieve their money and be saved from economic ruin. When they return to the office, Foster tells Loker about her agreement with Hollin and Loker angrily objects, arguing that Caroline should be prosecuted because she broke the law. Foster reminds Loker that, if Caroline is prosecuted, the victims will not recover any money and will suffer far more than if Caroline is allowed to remain free. Loker does not seem to accept this idea but agrees to go along with it. Shortly after this conversation, Foster calls her contact at the SEC and is informed that her services are no longer needed because he has received information regarding Caroline’s culpability. When Foster asks about the source of this information, her contact is evasive and ends the conversation. Loker goes missing for a while and is confronted by Foster on his return. He tells her that he is happy that Caroline will be tried but that he did not turn her in. Foster reminds him that the affected investors will now remain without compensation because Caroline was implicated in the scandal and then lets Loker leave. Loker then takes Torres aside and admits to her that he reported Caroline to the SEC and then took a sedative so that he would not visibly react to Foster’s questions. Although Torres agrees not to turn Loker in, she reminds him that he will eventually be found out.

At first, Loker’s actions might not seem objectionable. After all, he did act in strict compliance with the law, turning in someone he knew to be guilty of a crime. From the legal systems’ perspective, Loker’s actions were appropriate – notwithstanding his insubordination at work. However, a deeper analysis of his actions calls into question which character was actually acting in the best interest of justice and the people whom the law is designed to serve.

Loker’s statements regarding Caroline and his overall actions echo the idea of retributive justice. Caroline committed an illegal act which harmed the investors in her father’s firm and should be punished as a result. His focus was solely on Caroline and the initial harm done by her actions. Foster’s agreement with Hollin and her defense of it to Loker, however, echo in restorative justice. While Foster is certainly aware that Caroline’s actions were illegal and wrong, she is also aware that the result of Caroline’s actions is more than the violation of a statute and the initial economic harm done to the community of investors who were defrauded by the swindle. Rather, Foster views justice as returning the presumptively lost funds to Hollin’s clients and restoring them to their prior state of financial stability. To Foster, justice in this instance is not in the trial of Caroline for her acts but in finding a way to mitigate the impact of Caroline’s acts on those who were most harmed by them. Examined at this level, Foster’s vision of restorative justice as appropriate in this case is arguably more compelling, as it gets to the heart of the truly horrific element of the crimes at issue – the loss of investors’ life savings through no fault of their own. In the agreement between Foster and Hollin, the investors are spared financial ruin and Hollin and Caroline are left to resolve their differences as to Caroline’s conduct as an internal, family matter. Thus, the investors who were harmed are made whole and the family in which the crimes occurred is left to decide on its own method of sanction and/or forgiveness. This episode of Lie to Me demonstrates that there are times when it is possible for law to defeat justice, depending on the vision used to define justice itself.


Information on Lie to Me can be found at http://www.fox.com/lietome/ .

Romancing the Shoe Thrower: Misreading the Support for Resistance

There is often a romantic/idealized aura surrounding acts of resistance and/or resistance movements. This is possibly why the film industry (amongst other industries of culture) devote, at least in part, a fair amount of attention to narratives of resistance (and are often the focus of my recent postings). However, in this posting I want to focus on a particular New York Times article published yesterday, that takes, in a questionable way, the romanticizing of resistance (which here involve unlawful acts) to a whole different level.

The article, entitled "To Make Female Hearts Flutter in Iraq, Throw a Shoe" discusses, in particular, the reaction of female Iraqis to Muntader al-Zaidi, the journalist recently convicted and sentenced to three years in prison for having thrown his shoes at President George W. Bush during a press conference late last year. Zaidi's act was of course clearly unlawful and for many, particularly, in Iraq, it was likely seen as a justifiable act of resistance against a head of state who ordered the invasion and occupation of their country. However what is interesting about the article is how it frames and contextualizes the nature of female Iraqi support for Zaidi's act. If the title didn't give it away, then certainly the opening lines give you a striking impression of where the writers are heading (or at least attempting to contextualize/frame what is to follow):

What does it take for an Iraqi woman to fall in love with a man?

In parks and dress shops, in university halls and on picnics, Iraqi women are still smitten — three months and one new American president later — by the shoe thrower, Muntader al-Zaidi.

Do the title and opening lines perhaps imply/reflect/betray certain perceptions held about resistive acts committed by individuals in the 'developing world'? Perhaps. First, from this article's framing, Zaidi's (failed) act of resistance (whether you agree with the advisability of his act or not and whether there were more non-violent ways to demonstrate his disdain) ends up representing/serving a trivial purpose: throwing shoes at a foreign head of state as a mere attempt at enticing women or impressing them. Second, it reflects the limited notion/subtext that the principal way that the otherwise (and allegedly) 'repressed' Iraqi woman can experience falling in love in a simplistically constructed/imagined 'stifling, repressive culture' (here the Iraqi culture is the local stand-in for Arab culture regionally and 'third world' culture more generally) is through adoration of a man who has committed some violent (even if failed) act.

What do the writers base their ideas on? Conversations with twenty women over a few days. Of those twenty (and from what was included in the article), only one appears to have made any comments that resembled or matched the tenor of the title and opening lines of the article.

Atiyaf Mahmoud, 19, a student in her first year of medical school said, “I love Zaidi. I saw him in my dreams twice, the last one was after the trial, he was released and I went to congratulate him and shake his hand.”
“I was so excited in that sweet dream,” she said. “I wish to have that dream again.”

Interestingly, and to the writers' credit, the majority of article focused on the portions of the other interviewees' remarks that seemed to emphasize more sober points about the possible meaning(s) of Zaidi's act than of lovesick girls starving for a hero. For Hanan Mahdi, Zaidi's act was a manifestation of national pride and the source of respect in a neighboring state. She posits that “Muntader make [sic] us proud of ourselves as Iraqis.” Furthermore, Mahdi noted that while she was in Syria at the time Zaidi threw his shoes, she noticed the change in the way Syrian people treated them as Iraqis. She notes: “They treated us in a better way.” For another interviewee, it was an attempt to do that which no one else dared. Um Baneen stressed: “[n]o one dared to face Bush in the whole world, only Muntader al-Zaidi.” Lastly, one interviewee even disapproved of Zaidi's actions as a shameful act and his conviction as "a lesson to all Iraqis who are willing to do shameful acts and pretend that it’s democracy.”

Although it is questionable whether twenty individual women can be a representative reflection of the opinions held by the majority of Iraq women ("[w]hile Iraqi men have been divided over Mr. Zaidi’s gesture, it was hard to find a woman who wholeheartedly disapproved of him), the majority of the opinions featured in the article highlighted a range of opinions about the meanings of Zaidi's (resistive) act that did not resemble or substantiate the infantile, reductionist and tabloidesque framing that was applied to them at the outset. One ought to expect something better of a New York Times article - small or large.

Source consulted:

Abeer Mohammed and Alissa J. Rubin, "To Make Female Hearts Flutter in Iraq, Throw a Shoe" New York Times, March 13, 2009. Online: http://www.nytimes.com/2009/03/14/world/middleeast/14iraq.html

Jury Nullification, Resistance and Law

In keeping with the jury theme that Alex has been addressing over the past couple of months, and my own fascination with the interrelationship between law and resistance, I am going to discuss the concept of jury nullification as a form of resistance as depicted within film and television. Jury nullification takes place where a jury intentionally acquits someone who is otherwise presumably guilty on the basis of sufficient evidence to convict them of the crime charged. Such acquittals may be due to some moral consideration(s) or equally, a sense of justice whereby the application of the law to the facts of the case would create a greater injustice (See Gormlie, 1996: 49; Levine 1994: 473). Jury nullification dates back centuries (Rucker, 1998-1999) and has even been endorsed by state actors such as John Adams and Alexander Hamilton (Gormlie, 1996: 54).

Depending on the case, jury nullification can serve as a legal act which legitimizes and endorses the unlawful act(s) perpetrated by the accused against the “victim” of the crime in order to advance a more important objective – e.g. unlawful public protests against discriminatory laws; acts of civil disobedience that challenge a state’s decision to engage in an unlawful war.

In film and television, instances of jury nullification have arisen in the context of murder to correct a pre-existing injustice. In the film, A Time to Kill (based on the novel by John Grisham), Carl Lee Hailey, an African-American man kills two White male racists who brutally raped and attempted to murder his ten year old daughter Tonya. Just prior to his executing the two accused individuals, Hailey visits Jake Brigance (a White lawyer who had represented Hailey’s brother previously) where we come to find out that 4 white males the previous year were acquitted for raping an African-American girl. This sets up the context that southern justice in the United States essentially permits White men to commit violent sexual acts against young African-American girls with impunity, sanctioned by a (presumably) White jury. Sensing that no justice will prevail for his daughter, he decides to take the law into his own hands.

Brigance advances an insanity defence for Hailey, notwithstanding that the act was premeditated and Hailey knew the consequences of his action. Yet as the film progresses and the film audience is privy to the sequestered jury’s discussions about the case during supper (which is unlawful given that jurors are not to discuss the case before all the evidence is heard), we learn that the jury is prepared to convict Hailey of the murder, in part due to racial animus. During the trial, Hailey emotionally declares while on the stand that the two rapists "deserved to die, and I hope they burn in hell!" As the film closes, Brigance asks the jury to visualize in graphic detail the rape and attempted murder of a ten year old girl and to imagine what their reaction would be had the girl been White – would they be willing to convict her father of committing the same vigilante murder as did Hailey. The all-White jury then acquits Hailey of the murders.

Hailey’s acquittal was in essence an act of jury nullification for he clearly committed the murders. His conduct is constructed as an act of resistance against a socio-legal normative order that permits the rape of African-American girls without penal consequences to its perpetrators. The jury’s nullification of the law as applied to Hailey legitimizes his act of resistive murder.† It sends a message that where racialized violence is allowed vigilante actions taken to correct such injustices ought to be permitted. Hailey’s actions here seem justifiable given that the individuals who had fallen victim to his rifle were rapists and racists who may have been able to evade conviction. The objects of the resistance were clearly defined and few tears would be shed for their demise.

Jury nullification is a ripe topic for both film and television scripts. It brings into question the validity of the law and the necessity to violate it at times to perhaps effectuate a more humane result. This is particularly the case in the context of euthanasia and the suffering of individuals with terminal diseases. In most jurisdictions, mercy killing is still unlawful despite the suffering of many who seek to terminate their life with the assistance of medical doctors. Various television shows, including those written by David E. Kelly have attempted to handle the issue of euthanasia. For instance, in the season finale of the Emmy-award winning television series Picket Fences (“Howard’s End”, season 2, episode 22), the Alzheimer’s-afflicted mayor, Howard Buss is killed by his adult son, Kevin, as an act of mercy when Howard, in an advanced degenerative state, sheds his clothes and rides a rocking horse in his office. Kevin, having seen his father’s condition progressively worsen over several months decides to pull out a gun from Howard’s desk and shoot Howard. Ultimately, Kevin is prosecuted but the jury acquits him of the murder, due in no small part to the testimony of the lead protagonist, Sheriff James Brock who testifies sympathetically in Kevin’s favour by openly questioning how the district attorney could prosecute Kevin in these circumstances. The jury is given clear endorsement by the chief law enforcement official in the town.

Through dramatization through television and film, viewers learn that the application of law in courts is not a simple clear cut process even where the defendant is apparently guilty and no defenses realistically apply (in A Time to Kill, it becomes abundantly clear that Hailey was not insane at the time of the killings). There are times when convicting a defendant can lead to a further injustice in addition to the one that prompted the unlawful act in the first place. Such dramatizations provide the viewing public of the power that juries hold in nullifying the law and thus enable resistance to be legitimized. Yet one should not imagine that jury nullification only works to correct some injustices. There is a double-edged sword. Indeed in some circumstances, jury nullification could conceivably result in certain prevailing prejudices being endorsed if the majority of the jury is comprised of members of an identifiable majority that is pre-disposed to acquitting a defendant who hails from that majority and who has committed an unlawful and violent act against a member of a despised minority.

† The jury’s legitimization however is only forthcoming when they are able to imagine Hailey’s daughter as a humanized being, as a white girl.

Sources consulted:

G. Frank Gormlie, “Jury Nullification: History, Practice, and Prospects” (1996) 53 Guild Practitioner 49.

James P. Levine, “The Role of Jury Nullification Instructions in the Quest for Justice” (1994) 18 Legal Studies Forum 473.

Robert D. Rucker, “The Right to Ignore the Law: Constitutional Entitlement Versus Judicial Interpretation” (1998) 33 Valparaiso University Law Review 450.

The Idol Jury Part III

This week concluded another milestone in the American Idol season – the selection of the Top 12, or, in this season, the Top 13 contestants. In many ways, the path to the Top 13 was the same as in previous years, and yet in other, significant ways, this year’s contestants set out on an entirely new path to the coveted place in the next round of competition.

As usual, the selection process for the Top 13 involved voting by the American public. Unusually, however, this season this judges selected 36 contestants from which to draw the Top 13. Instead of having all contestants perform and then allowing the public to vote, the 36 contestants were divided into groups of 12 and each group performed once over a 3-week period. The public was invited to vote for a favorite contestant after each of these performances, and the following night the top vote-getting male and female singer were advanced to the Top 13, along with the next highest vote-getter, regardless of gender. The final slots in the Top 13 were determined by the judges’ wild card picks. In order to make the wild card determinations, the judges picked eight previously eliminated contestants and asked them to sing one last time before advancing four members of this group to the Top 13. In addition to providing an interesting variant on past seasons, the Top 13 selection process has a variety of implications for and parallels to the jury process.

The introduction of the new format for contestant selection could in some ways be seen as the antithesis of the jury experience in that there is a set procedure for the conduct of jury trials and that procedure is not drastically changed in any jurisdiction. However, a parallel can be seen between the change in the contestant structure and the jury deliberation process. Although there is a set format for the process for jury deliberation, there is not a routine jury deliberation itself. The experience for a juror can range speedy or tediously prolonged and reasonably civil to outright hostile. In this sense, the format of the inner workings of a jury deliberation is unpredictable and similar to the change in Idol contestant format because of the disquiet and changing expectations in terms of experience and outcomes that are associated with both.

Prior to each contestant’s performance, a short video interview with the contestant was shown, and after each performance the contestant had the ability to answer the judges’ comments and criticisms. In this sense, the contestant’s statements could be analogized to the testimony of a plaintiff or defendant at trial. The initial video is in many ways similar to examination by one’s counsel, bringing out the good and appealing qualities associated with the contestant and his/her particular story and/or relationship to the art of singing, as well as to the audition process to that point. The video is generally positive, upbeat and laudatory. In contrast, the judges’ comments and criticisms can be seen as analogous to a cross-examination at trial in that they generally bring out the negative or less appealing aspects of the contestant’s performance. During the judges’ comment session, some contestants elect to answer the judges’ comments directly in what often becomes an adversarial or defensive tone. Others elect to wait until after the judges’ comments have concluded before making any responses or further comments; when these responses and comments are made they vary from polite to visibly annoyed. In this sense, the contestants’ confrontational comments during the judges’ comments can be seen as similar to cross-examination, while the contestants’ post-judging comments responses can be analogized to a witness rebuttal statement. It is during this process that voters can also form opinions of the contestant outside of their purely vocal abilities; opinions which can be formative in the voters overall decision-making and voting patterns.

Similarly, after many contestants performed, their family and friends were interviewed by the show’s host, Ryan Seacrest. These interviews can be analogized to character witnesses at trial. Again, their actions can also frame the attitudes of voters in terms of their demeanor and defense of the family member or friend who has performed and been judged. Some family members appear as supportive and sympathetic to the audience and potential voters, while others seem to be more defensive and thus potentially antagonizing to viewers and voters.

During the public voting process, the judges can also be seen to have colored the viewpoints of voters and sent subtle – and sometimes quite obvious – cues to voters. In several instances, one or more of the judges was not enthralled with a contestant’s performance but encouraged America to vote for the contestant because of their personality or potential for future vocal development. In other instances, the judges were quite harsh on contestants, in essence daring the voting public to prove them wrong by voting for the contestant in question. Several times, the public apparently followed the cues of the judges in their voting patterns. The analogy here is between both lawyers making their closing arguments to a jury and, in some instances, to judges who take active roles in the conduct of a jury trial.

There are also important analogies to the jury experience in the wild card selection process. Perhaps the most glaringly obvious analogy is between the ability of the judges to overrule the voting public’s opinions and the ability of a trial court judge to enter a judgment not withstanding the verdict.

Another analogy to the trial system altogether is that of the song choice made by the contestants selected to compete for the wild card slots. Repeatedly, the judges commented that contestants made song choices which were self-indulgent and which were not sung to please or appeal to the judges. The analogy here is with witness testimony at trial, regardless whether that trial is a bench or jury trial. By exhorting the contestants to sing songs designed to please the decision-makers rather than being true to their own selves – in essence, to the truth of their identity – the judges essentially encouraged contestants to change their identity in order to please them. Similarly, witnesses are often guided – by counsel or their own beliefs – to appear different than they really are or to testify in a way which the witness believes will be well-received by the finder of fact rather than to testify to the blunt and honest truth and to present themselves and the facts as they really are. Here, potential jurors receive the message that it is encouraged, and even necessary, to shade one’s presentation in order to please those making decisions. This can be seen both as inculcating acceptance of this idea in potential jurors and making them skeptical of in-court testimony by causing them to question the veracity of a witness’ presented identity and facts.

Finally, at the wild card stage the judges made no attempt to disguise the fact that their selections for both the wild card tryouts and the wild card slots were heavily influenced by the history of the contestants from their first auditions onward. Thus, in essence, the judges relied on a series of impressions to make their wild card selections and did not necessarily focus on the performance of the contestants on the designated night of their decisive performances in order to advance contestants. The danger of this practice to the jury system is in the analogy to the ability of jurors – consciously or subconsciously – to incorporate first and other impressions of parties and witnesses into their final decision rather than relying solely on the testimony and evidence presented at the designated portion of the trial. Problems involving juror use of impressions and other non-testimonial or evidentiary based elements to make decisions are certainly nothing new; however, the wild card selection process on American Idol only served as a reinforcement of the acceptability of such considerations in crafting decisions.

For information regarding American Idol see http://www.americanidol.com/ .

Par for Confusion

From February 25, 2009 to March 1, 2009, the eyes of the golf world, and its many fans, settled on a thorny desert golf course outside of Tucson, Arizona for the Accenture Match Play World Golf Championship event. The primary focus of media attention at the outset of the tournament was the return of Tiger Woods to the professional golfing tour. As compelling as this story was to golf fans and non-fans alike, there was another, more subtle subtext to the championship which raises startling questions for the relationship between information on rules, the media, and the public.

Unlike the standard golf tournament system to which at least US viewers are accustomed through near weekly exposure during the golf season, the Accenture championship uses the “match play” format more commonly used in other areas of the world. Briefly, match play format pairs up golfers and the winner of the pair on each day advances. Ultimately, there is a two player final, in which the competitors play 36 holes of golf to determine the winner. Although seemingly easy to understand, this format is steeped in unusual rules. The difficulty of not knowing the applicable rules was compounded by the desert terrain of the Accenture championship venue, which resulted in several situations where players were faced with a choice between incurring a penalty or playing a ball shrouded in dangerous cacti and other obstacles.

Throughout the championship coverage, which was split between the Golf Channel and NBC, the sports commentators represented a distinguished group of former elite golfers and seasoned sports reporters. This group of commentators provided information on everything from the personal lives of the players to the design of the unique desert course, yet rarely did they provide a clear understanding of the rules of the tournament’s format and play. Listening to the former golfers, it was obvious that they understood the rules of match play – and that some had themselves played tournaments using the match play format. Much the same could be said of the sports reporters, who clearly had covered match play tournaments in the past and were familiar with the rules. However, the standard viewer was left clueless as to the particular rules of the game he was watching, and was not provided much clarity or guidance by the media covering the event. This was particularly troublesome since the primary source of such information – other than an independent research project – for viewers was and typically is the sports media coverage of the event.

Beyond causing annoyance to the viewer, there are larger legal implications in this lack of easy access to the rules. Golf, like most sports, is structured by the rules that govern it. It is, in many ways, analogous to society generally in that it rewards those who play within the rules and punishes those who violate the rules, even when the rules are unknown to the players or when a particular player did not understand the meaning of a rule. Indeed, golf rules are in many ways the embodiment of strict liability at law in that frequently there are no defenses available to the players who have violated a rule.

For viewers as well as players, understanding the rules is essential to understanding the game. Without an understanding of the rules of play, the viewer is left to watch and wonder at what he sees. He is at once a part of the society of viewers and yet is acutely aware that he is not truly integrated into that society because he does not understand its language or its rules. It is at this point that the media’s role changes from the passive conduit of television feed to the active role of interpreter for the viewer. Sports commentators have knowledge and access to information that can make the unknown understandable to viewers. Through the media, the viewer can be educated as to the rules of play and thus watch the events unfolding before him without confusion and as a fully integrated member of society. However, the converse side of the media-viewer relationship in this context is that the withholding of information – or the provision of partial information – can further throw the viewer into a state of confusion. Worse still, the provision of partial information can trick the viewer into thinking that he understands the rules. This is perhaps the most dangerous situation, because it allows the viewer to pass judgment on players without actually perceiving his ignorance.

Thus, the Accenture championship and its coverage by sports media demonstrates the impact of media on individual understanding of and inclusion in a set of rules and norms with which he is otherwise unfamiliar. Although this particular instance related to the world of golf, there are important legal lessons from this example. We see the role of media in controlling access to information that is not otherwise well-known or readily available in society generally. We see the ability of media to control information to make an individual feel or perceive himself to be removed from mainstream society. We see the ability of media to disseminate incomplete information to the public such that members of the viewing public believe they can pass judgments when in reality they do not have all of the relevant information and knowledge of applicable laws and rules needed to make a valid and informed judgment. And we see the potential for the media to provide complete information to the viewer, making the viewer a fully engaged member of the particular society at issue, and able to pass informed judgments. These lessons remind us of the power of the media in understanding rules and laws in a variety of fora, not just the golf course.

Sources:
Accenture Match Play World Gold Championships, PGA Tour, available at http://www.pgatour.com/tournaments/r470/ .
Woods Returning Next Week, ESPN.Com, available at http://sports.espn.go.com/golf/news/story?id=3919606 .
Match Play, Wikipedia.Com, available at http://en.wikipedia.org/wiki/Match_play .