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!
…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.