We already know that our senses do not reveal reality, and judges and jurors necessarily suffer from affective realism. These factors, along with the rest of our knowledge of mind and brain, lead to a fairly radical idea (I’m almost afraid to say it): perhaps it is time to reevaluate trial by jury as the basis for determining guilt and innocence. Yes, it’s enshrined in the U.S. Constitution, but the writers of that landmark document had no inkling of how the human brain works, nor that one day we could detect a defendant’s DNA under a victim’s fingernails.
