Dawkins doesn’t get juries

For some reason, this old Richard Dawkins article critiquing the jury system is getting linked a lot today. I wrote about it once before, but since I think it’s both really interesting and very wrong, it’s worth revisiting.

Dawkins begins by discussing how one would test for innate pecking behaviors in chicks. Testing one chick doesn’t establish anything because it could be reacting randomly. You have to test multiple chicks. These chicks have to be tested independently, not in a group, or you run the risk that an initial random behavior could influence the whole group. In principle, testing a group of chicks together is really no better than testing a single chick.

Dawkins then carries this idea over to juries. The supposed advantage of juries is that having 12 people pass judgment instead of one makes the risk of a unanimous wrong verdict very small. But, he says, this doesn’t hold true because the twelve jurors aren’t independently sampled. Strictly speaking, 12 jurors are no better than one, since the group of jurors could be unduly influenced by individuals in the group. The jurors are just like chicks. So far, so good.

But then his argument starts to go off track:

Turning to courts of law, why are twelve jurors preferred to a single judge? Not because they are wiser, more knowledgeable or more practised in the arts of reasoning. Certainly not, and with a vengeance… Twelve jurors are preferred to one judge only because they are more numerous… Twelve heads are better than one, because they represent twelve assessments of the evidence.

But for this argument to be valid, the twelve assessments really have to be independent. And of course they are not. Twelve men and women locked in a jury room are like our clutch of twelve gull chicks. Whether they actually imitate each other like chicks, they might. That is enough to invalidate the principle by which a jury might be preferred over a single judge.

Not so fast. If trials were only about judging the facts of a case or matters of law, the case for juries over judges would indeed be weak. But the jury system is valued not for these reasons but because, unlike state-employed judges, juries act as a check on the government’s power to prosecute.

This makes Dawkins’ proposed test for whether judges or juries are more reliable very problematic:

I’ll call it the Two Verdicts Concordance Test. It is based on the principle that, if a decision is valid, two independent shots at making it should yield the same result. Just for purposes of the test, we run to the expense of having two juries, listening to the same case and forbidden to talk to members of the other jury. At the end, we lock the two juries in two separate jury rooms and see if they reach the same verdict. If they don’t, nothing can be proved beyond reasonable doubt, and this would cast reasonable doubt on the jury system itself.

To make the experimental comparison with Trial by Judge, we need two experienced judges to listen to the same case, and require them too to reach their separate verdicts without talking to each other. Whichever system, Trial by Jury or Trial by Judge, yields the higher score of agreements over a number of trials is the better system and might even be accredited for future use with some confidence.

I expect that judges would win this contest. This is partly because they’re more reliable judges of fact. But it’s also because judges are bound by law and precedent, so even if a law is unjust they have no choice but to enforce it. Juries are not bound like this and they are free to acquit rather commit injustice. Some juries will nullify and others won’t, so they clearly won’t win the Two Verdicts Concordance Test. But as computer programmers like to say, that’s not a bug, it’s a feature!

Dawkins concludes:

…should I be charged with a serious crime here’s how I want to be tried. If I know myself to be guilty, I’ll go with the loose cannon of a jury, the more ignorant, prejudiced and capricious the better. But if I am innocent, and the ideal of multiple independent decision-takers is unavailable, please give me a judge.

Innocent of what? Of murder? Then ok, he’s probably right. But what if he’s being charged with a victimless drug crime, or better yet, teaching evolution in a public school? If he’s “guilty” of violating these unjust laws, judges would have to convict him. Juries could conscientiously acquit. That’s what’s so great about juries, a virtue Dawkins never bothers to acknowledge.

Dawkins’ analysis only makes sense in a world where all laws are just. The jury system wasn’t designed for such a fantasy world, however. It was designed for the real world in which the government routinely violates the rights of its citizens. In cases regarding freedom of religion, freedom of speech, the Fugitive Slave Act, and Prohibition, American juries played an important role in fighting oppression. It’s true that this power of juries has been largely forgotten or denigrated in the past century, but by ignoring nullification, Dawkins misses the whole point of the system.

Dawkins of all people ought to take note of the notorious Scopes trial about teaching evolution in Tennessee. The defense had to essentially concede its case because the judge forbade nullification arguments, reducing the case to the purely factual question of what Scopes was teaching in the classroom. Scopes was convicted, of course. Judges failed him. A jury free to hear nullification arguments might have reached the just conclusion. (The defense’s appeal lost, too; Scopes got off on a technicality. It was another 40 years before judges ruled that such bans violate the Establishment Clause.)

I hope Dawkins isn’t really crazy enough to want to abolish trial by jury. That said, his point does raise the interesting possibility of splitting up the traditional jury of 12 into 2 or 3 smaller juries The juries would attend the same trial but be forbidden from communicating with each other, satisfying the scientific requirement for independent sampling.

My question is whether or not having multiple smaller juries would increase or decrease the likelihood of nullification. Perhaps, as Dawkins suggests, splitting up the jury would prevent one or two influential jurors from leading the entire group, increasing variance. Or perhaps the knowledge that there are other juries deciding the same case would cause potential nullifiers to abdicate responsibility, letting them take the easy way out in the hopes that a person on one of the other juries would vote to acquit. Either one of these scenarios seems plausible to me.

Comments

  1. Barzelay says:

    Your focus is on jury nullification as a check on government authority. In some cases, juries acquit even when the defendant is guilty of breaking the law. But the converse is also common: juries convict when the defendant is innocent.

    For instance, if one is accused of molesting a child, one would want to be tried by a judge whether or not one is innocent, because juries will almost always convict, even without any evidence at all. In that case, judges are a check on the ignorance, prejudice, and capriciousness of the public. Either the judge throws out the case, or else the defendant is convicted.

    In any case, the judges disallowing nullification arguments in the Scopes trial is always the case now. If a lawyer mentions nullification or even hints at it, pretty much every judge these days will instantly declare a mistrial, the lawyer is possibly going to be held in contempt of court, and there will be talk of disbarring him. In addition, if any juror or the bailiff mentions to the judge that some juror mentioned jury nullification during deliberation, the verdict will be set aside and the trial will be declared a mistrial. Jury nullification, in other words, is a right that has to be spread outside court.

    As for Dawkins, I have great problems with the jury system myself. My biggest problem with it is that only the lower classes serve on juries. Most middle and upper class people easily find excuses to get out of jury duty and so juries inevitably consist of the most poor, uneducated members of society.

    Personally, I say why have deliberations at all? If it would be better to split the jury into three groups, why not split it into 12. Following the trial, have every juror cast his vote, without speaking to anyone else. He is free to deliberate, alone, and when he is read, he submits his vote to the bailiff. The bailiff collects the votes, and, if a single juror votes to acquit, the defendant is acquitted.

  2. Jacob Grier says:

    It’s probably true that judges do have the advantage over juries in cases such as molestation, like you mention. The only thing I’d add to that is that there is a useful asymmetry: judges can review a conviction, but they can’t review an acquittal. I think this is as it should be.

    Have you read anything from the Fully Informed Jury Association? As you say, nullification is a right that has to be spread out of court these days, and they’re doing a lot of work to do just that.

    I could go for the no deliberations idea. How certain are people that anything good comes out of deliberations? Plus, the lack of deliberations would allow jurors to nullify without risking reprisals by the court for what they say in deliberations. (Google the name Carol Asher for a recent example.)

  3. Zhubin says:

    There have been studies have show that jury deliberations actually radicalize the collective opinion, which is a huge problem for a system based on the assumption that deliberation results in reasoned decision-making.

    I also have issues with arguments that juries will help prevent injustices, since one could probably come up five or six times the number of cases where the juries actively promoted injustices (e.g., black men on trial for “raping” white women).

    That being said, I agree that juries are very problematic, but I have the same opinions about them that Churchill had about democracy. Especially when you add the safety valve of the appeals system, which prevents the egregious errors of juries.

  4. Jeff says:

    Here’s the problem I have with judges: they may be less ignorant but they’re just as prejudiced and capricious as jurors. Furthermore, they’re more subject to popular scrutiny, especially if these judges are elected (as they are here in N.C.). Do you think that a judge who (rightfully) acquitted an innocent man in a high-profile molestation case would be elected next year? Hell no! Some douche will run against him saying “Judge So-and-so lets child molesters roam the streets” and he’ll be out on his ass. Even if they’re unelected, judges who make such decisions would never be elevated to a higher post without a public outcry over the appointment. Judges know this, and rare is the courageous judge who is willing to sacrifice his/her career for a single defendant. (H. Lee Sarokin, who overturned the racially motivated conviction of Rubin Carter and was summarily removed by the electorate at the next election, is a notable counterexample.)

    So juries won’t have as much of a reason to think about public opinion, and would therefore clearly be preferable in high-profile hot button cases in states where judges are elected.

    Now. I happen to think that Dawkins’ argument is somewhat silly. If juries simply stated their views out loud without deliberation, Dawkins may have a point – a wavering juror may be pressured into agreeing. But these doubts would generally be aired during deliberation. And let’s face it – no judge is perfect; the likelihood that a single judge catches a small hole in the prosecution’s case is probably lower than the likelihood that one of the twelve jurors catches it and airs it during deliberation.

  5. Jeff says:

    Incidentally, read this old BBC article:

    http://news.bbc.co.uk/1/hi/uk/1588246.stm

    Yes, Dawkins is seriously advocating abolition of jury trial. Seems like the Brits are a little more lukewarm on jury trial than we are.

  6. Dariel says:

    Two things came to mind when I read this – the first being a practice that we as public defenders in Colorado have during jury selection. Assuming we have time, we often talk to the jurors about the requirement that their verdict be the consolidation of twelve independent judgments from twelve individuals. We try to empower them to disagree with each other and refuse to change their minds, and to get them all to agree that they won’t pressure or bully anyone into changing their minds. It seems to lead to more hung juries than we have seen in the past.

    The second is the assumption that judges may be better than juries because they understand the law and can evaluate the facts more dispassionately than jurors. The problem with this in many jurisdictions is that most state judges are elected. Jurors at least have anonymity – and 11 other people – to rely on if they decide to walk a child molester. Judges are often so concerned about their evaluations and elections that they are even more hesitant than a jury would be to acquit that guy who raped and murdered three nuns.

    The idea of no deliberation is an interesting one but ultimately not one, I think, that could be put into practice. There would be so many hung juries, and so many retrials, that the court system would grind to a halt. And juries have to be unanimous to acquit as well as to convict, so that rule could also work to the detriment of a defendant, giving him a hung jury where perhaps with deliberation he would be acquitted.

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