Mental States Are Jury Questions!
Josh Wolf and Federalism

Confusion in the Eighth Circuit Court of Appeals: The Failure to Separate Legal And Factual Questions in Section 1983 Cases

[Ed's note: This is part three of a three-part series that will examine two recent cases from the Eighth Circuit Court of Appeals.  Part 2 is here.]

What is the difference between legal and factual questions.... Sounds like an easy question to answer, right?  Questions of law are questions judges answer; where as questions of fact are questions juries answer.   Still, that doesn't tell us what questions we should send to a jury or judge, does it?

Unfortunately, a satisfactory distinction is hard to find.  Though I did come up with that should be rather uncontroversial: A factual question asks, "Did something happen?"  Something  could refer to an event, an action, or a person's conclusion.  A legal question asks: "Was the something that happened legally operative," i.e., was the "something" that happened illegal, tortious, etc.

So, for example, let's imagine a murder case.  The defendant is charged with murder for killing a man at a movie theatre.  His defense is self-defense. 

Whether a person died is a factual question.  Whether the defendant killed the person is a factual question.  Whether the defendant concluded that he faced a risk of deadly harm is yet another factual question.  Easy enough.  What about questions of law?

Whether killing someone you believe is going to kill you is a defense to murder, is a legal question.  Here is another: A court might write: "We hold that a defendant who shoots a fleeing, unarmed man in the back cannot, as a matter of law, act in self-defense."

In a jury trial, the jury does not answer questions of law - only questions of fact.  Absent nullification, if a jury believes that the defendant's story ("I feared for my life, the man had a knife at me, and he told me he was going to kill me."), then the jury will vote to acquit.  If the jury does not believe the defendant's story, then the jury will convict. 

A person could create more complicated examples, though the above example illustrates the point: Whether something happened is a question of fact; whether whatever happened is legally operative is a question of law.

Outside of intellectual curiosity, why should we care about the distinction between legal and factual questions?  We should care because when court's confuse them, they reach wrong results.

[Part 2, which is located here, will examine how the Eighth Circuit reached an incorrect conclusion in a recent Section 1983 case after not carefully distinguishing between legal and factual questions.]