(UN)COMMON KNOWLEDGE & EXPERIENCE

• Published in: Boston University law review Vol. 105; no. 4; pp. 1113 - 1150
• Main Author: Harris, Jasmine E
• Format: Journal Article
• Language: English
• Published: Boston Boston University School of Law 01.05.2025
• Subjects: Americans with Disabilities Act 1990-US; Decision making; Disability; Disputes; Evidence; Juries; Knowledge; Law; People with disabilities; Social norms; Trials; United States > US
• ISSN: 0006-8047

Information deficits are typically addressed in courts: for example, through expert evidence regulated by federal and state evidentiary rules and doctrinal standards such as those articulated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.9 and Kumho Tire v. Carmichael.10 Yet these legal rules and doctrinal standards themselves may impose barriers to the introduction of curative evidence. [...]scholars of the American jury who tout its representativeness and value to the administration of justice,12 as well as the jury's expressive and practical role in democratic governance,13 may benefit from the insights in this Essay that raise questions about its just operation. [...]this Essay offers lessons for proceduralists, particularly evidence scholars thinking through the information deficit problem alongside how to mitigate biases in adjudicative decision-making. Today, personal knowledge of the facts, actors, or even general experience with the nature of the case is often disqualifying and may subject a potential juror to a preemptory strike for cause.23 Juries went from "active knowers" to relatively "passive receivers of evidence"24 provided to them by courts; incidentally, courts also assumed a greater role in the regulation of proof in service of jury objectivity.25 The once-localized jury became more anonymized and distant from the facts of a particular case,26 yet jurors were still expected to resolve the matter before them based on the information provided during the trial, funneled through a presumed common base of knowledge and experience (albeit much broader and less connected).27 The jury also serves an expressive function as a democratic institution where laypeople participate in the administration of justice and check judicial expertise in dispute