Equality by lot

A distinction is sometimes made between democracy as a system in which citizens are politically equal and a system in which the “right” decisions are made. In “Rethinking Guilt, Juries, and Jeopardy”, a paper published in the Michigan Law Review in 1992, George Thomas and Barry Pollack argue, in the context of juries, that the two concepts may be theoretically indistinguishable. It is interesting to weigh the strength of their argument and see to what extent it is applicable to citizen judgement in the case of policy making. Thomas and Pollack also go further and use this argument to reason about jury size, an argument which may be interesting and relevant in public policy making as well.

It may be obvious, but it is worth noting anyway, that the arguments made are also relevant to very wide epistemological questions about what is truth, what are facts, the analytical/synthetic distinction, the fact/value distinction, internalism vs. externalism, etc. It turns out that a theory of democracy may require a workable epistemological theory, or at least a part of such a theory.

The purpose of a mechanism for deciding guilt is to impose punishment only on those who deserve it. This goal raises two questions. First, who decides? Second, how can an observer evaluate whether the decisionmaker was right or wrong?

Although citizen juries played a role in the English criminal process at least as far back as 1201 A.D., their role initially was limited to screening cases, much like the present-day grand jury. Thus, a jury would decide whether to hold the accused for the guilt-determining phase, which might be battle or ordeal. Battle on an accusation of felony ended in death for the accused if he lost – the offender would perish either in the battle or from immediate hanging. Ordeal consisted principally of trial by fire and water, which required the accused (and sometimes the accuser) to walk through fire, carry red-hot iron, plunge his hand or arm into boiling water, or be thrown into a pool of water.

The premise underlying both battle and ordeal as guilt-determining mechanisms was that “God would always interpose miraculously to vindicate the guiltless.”

With the dawning of the Renaissance, however, Western culture gradually ceased seeing the hand of God or Satan in every physical event, and the role of citizen juries was extended from screening defendants for trial to determining guilt. As long as God was making the decision, believers did not accept the possibility of error. Once the ultimate decision rested in the hands of citizens, however, error became possible. The difficult, and usually unappreciated, question is how error can occur.

The most superficially plausible way for error to occur is to consider guilt as an empirical determination – the only judgment that the relevant facts could sustain. If an evaluator external to the jury knew the relevant facts, she could then judge whether the jury reached the right result. But if the relevant facts can sustain only one verdict, how can the jury reach a contrary result? One answer is that the rules of evidence and procedure may have denied the jury some of the relevant facts, but this gets us nowhere. We seek to determine whether juries consistently reach the correct result within the parameters of the legal system, not whether the legal system perfectly identifies facto

Guilt as an empirical concept seems intuitively plausible. […] But practical and epistemological problems abound. […] Take a simple case where the only issue is whether defendant Y performed act X. Since no way exists to go back in time and observe whether Y did X, the most the legal system can do is gather evidence about what happened in the past and provide that evidence to a factfinder. In most cases, the external evaluator will not have access to a videotape of the relevant encounter and must rely on human testimony recalling distant events. This practical limitation typically requires judgments about witness credibility before the “fact” about X is known, a task our system assigns to the jury.

More fundamentally, even if we permit the evaluator to judge credibility in determining the “fact” about X, no particular reason exists to prefer the evaluator’s conclusion to that of the jury. Whoever seeks to evaluate the judgment of the jury stands in no higher relation to the
“truth” than does the jury.

Thus, no math-like method for verifying a jury verdict exists. Any “truth” about guilt that exists in the universe is undiscoverable. The legal system can attempt to uncover its errors only by performing a post hoc review of its fallible human actors. We can avoid epistemological difficulty, however, by adopting a positivist view of guilt: guilt is what the system (the sovereign) says it is. Defendants are guilty if found guilty.

The narrow sense of this positivist conception holds that guilt or lack of guilt is simply the outcome of a complex process that limits the evidence that a jury can hear, requires proof beyond a reasonable doubt and a certain quality of representation of defendants, disqualifies some citizens from jury service, provides for the appeal of convictions (but not acquittals), and has a host of other rules that impede or facilitate the task of prosecuting individual cases. The final result of this elaborate process is, in a positivist sense, the reality about guilt.

While the narrow positivist conception of guilt is both practical and epistemologically sound, its narrowness renders it unsatisfactory as a framework for evaluating jury verdicts. Indeed, the compass is narrow that it enables no evaluation of the outcome, as opposed to the process. Once the highest court in the jurisdiction affirms a conviction, the defendant is guilty, and talking about whether the verdict is correct is incoherent.

Can guilt be conceived in a way that avoids the practical and epistemological problems of empirical guilt without accepting the ultimate verdict as inevitably correct? One answer lies in a broader version of positivism. Guilt might be what the sovereign, broadly construed, says it is. As both H.L.A. Hart and John Austin noted, the sovereign in a democracy is ultimately the electorate. A broader version of positivism, then, suggests that guilt is what the electorate would decide in any given case. Viewed in this light, a jury is simply a sample of the larger universe of the electorate, and a jury verdict can be compared to the result the electorate would have reached had it judged the case.

In a similar vein, Ronald J. Allen has observed, “The jury system is based upon a relativistic or communitarian theory of knowledge. Community consensus determines what is true for purposes of after the fact determinations.” This broad positivist conception of guilt comports with our societal preoccupation with sensational jury trials […]. One reading of this public attention is that society reserves for itself the ultimate decision on the defendant’s guilt, with the jury merely functioning as a convenient way of attempting to express the societal judgment. Thus, reporters asked many people concerning these three trials, “Did you agree with the verdict?” Implicit in this question is the notion that the defendants’ “true” guilt depends on society’s view rather than on the actual jury decision.

Other reasons support the positivist argument that society is the appropriate benchmark for evaluating whether a trial jury reached the “right” verdict. First, society bears the systemic consequences of jury verdicts – incorrect acquittals free guilty defendants while incorrect convictions reduce confidence in the process. The entity that bears the systemic consequences of trial jury decisions ought to provide the ultimate standard by which these decisions are evaluated. Second, the society-as-jury concept parallels the Greek understanding of juries.

Our working hypothesis is that “true” guilt means nothing more, or less, than the judgment that society as a whole would reach in a given case. We may, therefore, evaluate verdicts by considering the trial jury a sample of society. Obviously, for practical reasons, society’s judgment cannot function in individual cases as a finding of guilt, but it can serve as a frame of reference for evaluating jury’s findings.

We recognize that using society as a mechanism for ascertaining “true” guilt is somewhat unsatisfying. Society is simply a larger (indeed, the largest possible) jury panel. Why should reference to a larger panel produce the “truth” about guilt? Our only answer is that empirical guilt is unverifiable. Without recourse to the broad positivist conception of guilt as society’s judgment, no standard exists for determining which jury verdicts are erroneous. Ultimately, we believe that deciding which jury configurations are likely to produce verdicts consistent with society’s judgment is a more satisfying basis for jurisprudence than the anemic doctrine that “lines must be drawn somewhere.”

Filed under: Academia, Juries, Press, Theory |