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.