Reasonable doubt, unanimity, and the jury
Thanks for having me here. Other than my prior GWU institutional affiliation and political science, I share interests with my hosts in cats, babies, and cake (not necessarily in that order).
I have a particular affection for political theory and historical work of the “when you look at the origins of this institution, you see that it was understood in a very different way than it is today, which sheds light on its contemporary operation and deficiencies — how d’ya like dem apples?” variety. Much of my own work is in this vein, but I learned from others, including my colleague Ira Katznelson (e.g., When Affirmative Action Was White) and especially my adviser Bernard Manin, who has demonstrated the aristocratic origins of representative government (and who is not at all a ‘comment aimez-vous ces pommes-là?’ kind of person, I hasten to add). Anyway, a historian friend recently gave me The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, by Yale law professor James Q. Whitman, and I can’t stop thinking about it.
In essence, Whitman argues that the reasonable doubt provision was theological in origin; dating to the medieval period and introduced into English common law in the eighteenth-century, the rule served the aim of “moral comfort” for jurors who feared for their salvation as they judged an accused person. If the jurors were confident in their judgment “beyond a reasonable doubt,” they could find the defendant guilty without fear for their souls – in that way it facilitated, rather than hindered, conviction. Further, the reasonable doubt rule is not really epistemic: that is, it’s not valuable as a truth-finding mechanism. In fact, treating it that way confuses jurors, who don’t have a clear test for determining which doubts are “reasonable” and which are not. It might reduce the risk of false positives (in the form of convicting the innocent), but it isn’t helpful as a means of ensuring that the right answer to the question of guilt or innocence is reached. Here’s a brief summary that Whitman wrote last year. But I’m interested in a different dimension of Whitman’s argument, as I’m writing a book on the emergence of supermajority rules in contrast to unanimity and majority rule.
Whitman highlights what he terms the “troubling” unanimity rule for jurors, and suggests that it too was not originally epistemic or aimed at fact-finding. Unanimity enabled jurors to share the responsibility and the peril of judgment. Drawing on the late 12th-century legal treatise Glanvill, Whitman shows that jurors were essentially witnesses, rendering a judgment in accordance with what was publicly known in a particular area. Whitman explains that the mechanism of “afforcing the assize” – of finding 12 to testify to that which is publicly known, or of summoning jurors until 12 could be found to agree in case of a disputed claim of right – enabled responsibility to be equally distributed among the jurors. But here’s one question: Is the “afforcing the assize” mechanism, on this story, actually a unanimity requirement? Jurors are summoned sequentially until there are twelve prepared to give sworn testimony, but along the way you eliminate jurors who either do not know the truth, who are willing to risk the charge of perjury not to testify to it, or, who in the case of disagreement over the claim of right, who manage to reach the threshold of 12 first. Particularly in the context of disagreement, this seems like a threshold requirement, rather than a unanimity rule as such. Second, is this really not epistemic? Sure, the jurors testify to that which is already known, rather than to trying to discern the truth. But it seems that since the truth is not universally known – some know it, and some do not – the process of trying to find 12 people to give sworn testimony before there are legal consequences still ensures that there is an adequate epistemic basis for judgment. Again, this is especially clear when there is a disagreement over a claim of right.
In any event, I concur with Whitman that the unanimity rule today is indeed troubling – in part because of abundant empirical evidence of jury deliberations that suggest coercive efforts at persuasion to get holdout voters to switch their vote – and that it isn’t attractive from an epistemic perspective insofar as it enables a sole voter to veto that which the (presumptively competent) 11 other jurors decided is true. Although if our primary goal is to avoid convicting the innocent, a unanimity rule might work effectively, it won’t if jury deliberations are marked by coercion, and wouldn’t necessarily help if a hung jury results in a retrial. A supermajority threshold would reduce the moral pressure on the holdout – which, paradoxically, could incline her to change her mind rather than resist peer pressure – or to enable her to dissent without fear of hanging the jury.
Comments
Hi Professor Schwartzberg,
Joel Parker at Texas here.
I am very interested in reading more about your takeaways from examining supermajorities, especially as they pertain to democratic theory. So, this may not be precisely on point (seeing as it is as much normative as historical), but I wonder what you think of the counter-argument. Specifically, I refer to the claim that supermajoritarian decision rules for juries lessen the incentive/need for deliberation as contrasted with unanimity requirements, and that beyond its epistemic role, unanimity also serves to protect/give voice to minorities in situations where the supermajority threshold is still too low given the typical demographic make-up of juries. This is basically the flip side of what you seem to be arguing, so I know you’ve already indicated your position. But I think the other side is set out well by Abramson (We, the Jury), among others, so I wonder how you respond to that.
Posted by: Joel | March 17, 2009 04:03 PM
Thanks for this, Joel. First, right, supermajoritarian rules may lead to briefer deliberation. But if, as I suggest, the end stages of deliberation under unanimity consist of browbeating, it’s not clear that that would be a loss. Again, that’s an empirical question. Also, it’s true that there is some evidence that longer deliberation (as under a unanimity rule) does seem to enable those who speak less (especially lower socioeconomic status, racial minority, and female participants) an opportunity to participate — and, I suppose, an opportunity to block an otherwise biased verdict. It strikes me, however, that there might be more institutionally direct ways of solving the non-participating problem (e.g., don’t elect but choose by lot a foreperson, who on the election model is typically of a higher educational level/employment status and can shape the agenda of deliberations). And again, it seems that only where there’s a bloc do minorities on the verdict successfully hold out — which may be a case you have in mind. But if the only bulwark to a non-biased decision is the presence of three or more members of a minority capable of uniting in opposition, then we may want to reconsider the use of juries in the first place — or ensure adequate minority representation in some other fashion than through the crude mechanism of a decision rule.
Posted by: Melissa | March 17, 2009 04:15 PM
Quick question on the pressuring jurors issue: why should we care that jurors in supermajority cases can dissent without fear of hanging the jury? Their dissent can’t affect the outcome, and there isn’t really a communicative/political value to their dissent when deliberations are conducted in secret…
Posted by: Paul Gowder | March 17, 2009 04:19 PM
Briefly — I think it preserves the integrity of the process. Whereas a lot of scholars are concerned about the legitimacy of the verdict being weakened by a nonunanimous decision, I actually think a dissent demonstrates the absence of coercion, and thus should improve our confidence in the outcome.
My interest in babies (um, in one particular baby) is now trumping my interest in political theory, so I’ll come back to this later tonight should anyone still be interested.
Posted by: Melissa | March 17, 2009 04:31 PM
I’m not sure I understand how that works. Imagine two worlds. World 1, there’s a unanimous verdict, but we think that it’s possible that there really was just a supermajority, but the dissenters got coerced into going along. World 2, there’s a supermajority verdict, and we know it.* Why should we have more confidence in one outcome than in the other?
I would think we’d actually have more confidence in convictions in the world 1 system, because, depending on our prior probability in coercion, in each case we know there was at least a supermajority and we have some probability in their having been a (more reliable) unanimity.
On the other hand, it’s true that the system as currently constructed makes us overly confident in the results of unanimous verdicts, but we can adjust our beliefs to take account of the probability of coercion?
(And good luck with the baby!)
—-
* That is, unless there really was a bare majority, and a couple people got coerced — a possibility that seems to exist in the case of a supermajority requirement just in the same way it exists with unanimity (“2/3 of us agree with this, why are you the moron that keeps us from getting 3/4?”), and one that makes me wonder if your argument doesn’t push us all the way to bare majorities.
Posted by: Paul Gowder | March 17, 2009 05:03 PM
Paul — thanks for this. First, I don’t think we want institutional rules that either encourage coercion or insincerity; all things considered, I’d prefer a system in which we could actually discern the level of support for the verdict with a higher degree of accuracy. I think this level of transparency ought to induce a certain level of confidence. Now, your point is correct that at any threshold, there is some risk of coercion (as you suggest, “why are you the moron who keeps us from getting 3/4?).” My impression — drawn primarily from the social psychology work on juries — is that in the presence of two or more other dissenters, the risk of coercion diminishes and the probability of a hung jury increases. The presence of other supporters strengthens the resolve of the opposition. So the problem of ascertaining whether an outcome emerged from coercion or was “sincere” is less severe under a supermajority threshold than under a unanimity rule. Now, does this particular claim push us to bare majorities? I’m not sure, insofar as I suppose the threshold problem would arise there too. But I can indeed see an argument for majority rule on Condorcetian grounds; in its barest formulation, the minority is presumptively incorrect (yes, there is some work demonstrating the reliability of supermajority rules under certain conditions — e.g., with high levels of average competence, but this is a longer story …).
And thanks, baby asleep (perhaps obviously, from the length of this comment).
Posted by: Melissa | March 17, 2009 09:05 PM
Paul: “Quick question on the pressuring jurors issue: why should we care that jurors in supermajority cases can dissent without fear of hanging the jury?”
Apart from Melissa’s answer about verdict legitimacy, there’s a clear epistemic element to the freeing up of dissent in deliberative situations. The concern about coercion in the jury room (at least in my mind) is that it cuts off multiple lines of thought, which if given full airing, might be convincing. Of course this relates back to the point about legitimacy, since the epistemic value of a decision procedure for trials must be a significant part of the source of its legitimacy.
My worry with your later comment, Paul, is that you’re giving short shrift to the truth-seeking properties of deliberation, when in your possible worlds example, you talk as though some sort of majority can be present without making reference to the deliberations which brought it about. These things seem to me to be very much tied up in one another, and I think we’d need a fuller account of the quality and openness of the deliberation before we can say much about confidence in the verdict. Alternatively, and (I think) in line with Melissa’s point, we’d need to alter the institutional structure of jury trials in order to improve deliberative practices. A challenge, to be sure.
Posted by: Greg | March 17, 2009 10:03 PM
Hmm… good points both, and I think they answer my concerns.
Posted by: Paul Gowder | March 18, 2009 01:55 AM