Group agency and legal proof; or, why the jury is an 'it'.

• Author: Pardo, Michael S.
• Position: Introduction through III. The Jury as Group Agent, p. 1793-1824

Abstract

Jurors decide whether certain facts have been proven according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent with agency that may differ from that of its members.

The Article then argues that this conception of the jury contains important implications for law and legal proof. These implications are both theoretical and practical. On the theoretical side, recent debates in evidence law have focused on whether legal proof is probabilistic or explanatory in nature. These debates, however, have largely assumed a single, unified fact-finder (whether jury or judge). The group-level perspective reveals new conceptual problems for the probabilistic theory that are alleviated by the explanatory theory; it thus provides further vindication for the explanatory account. On the practical side, the conception of the jury as a group agent, coupled with the explanatory account of proof, clarifies doctrinal issues on whether, and when, jurors must agree on factual details. In both criminal and civil cases, these issues have caused considerable confusion and uncertainty for courts and commentators.

TABLE OF CONTENTS INTRODUCTION I. GROUP AGENCY: A CONCEPTUAL OVERVIEW II. GROUP KNOWLEDGE: A CONCEPTUAL OVERVIEW III. THE JURY AS GROUP AGENT A. Why Jury Agency Is Non-Summative B. COLLECTIVE EPISTEMOLOGY AND JURY AGENCY IV. THEORETICAL IMPLICATIONS: EVIDENCE THEORY AND PARADOXES OF PROOF A. Two Conceptions of Proof B. The Conjunction Paradox C. Groups and Conceptual Problems 1. Problem 1: The Discursive Dilemma and Jury Verdicts 2. Problem 2: Plaintiffs with Worse Cases Win 3. Problem 3: Juror Disagreements on the Details V. PRACTICAL IMPLICATIONS: JUROR AGREEMENT IN CIVIL AND CRIMINAL CASES A. Disjunctive Explanations B. Civil Cases C. Criminal Cases VI. COUNTERARGUMENTS A. The Probabilist's Rejoinder B. Inconsistent Criminal Verdicts CONCLUSION INTRODUCTION

A jury is a collection of individuals--each assesses evidence and determines whether certain facts have been proven, according to the applicable legal standards. The views of individual jurors are aggregated, and if there is sufficient agreement, the jury's group decision will constitute a verdict. (1) What is the relationship between the jury as a collective decision-making body, on one hand, and the beliefs, knowledge, intentions, preferences, and decisions of its individual members, on the other? In other words, what is the relationship between the jury as a potential "group agent" and the agency of its members? (2) Is there any coherent sense in which the jury has group agency that differs from the agency of its members? Or is the jury just a "they," and not an "it?" What implications follow from the answers to these questions?

These questions animate the discussions in this Article. I will defend the view that the jury does indeed possess a type of group agency that is distinct from the agency of its individual members. In other words, I will argue that the jury is in fact an "it" (as well as a "they"). Moreover, I will discuss several theoretical and practical implications that follow from this conception of juries. Before outlining the details of the arguments to follow, I will first set the stage by describing the distinct strands of scholarship that form the background for the discussion and upon which the analysis will draw.

There are five such strands. The first is a collection of "they, not an it" arguments applied to collective decision-making bodies. For example, scholars frequently point out that Congress, the executive branch, the White House, the judiciary, the Supreme Court, administrative agencies, corporations, boards of directors, the school board, and so on, are a "they," and not an "it." (3) There are a number of important truths--typically grounded in social-choice theory--contained in these arguments. (4) Focusing on the "they" aspects draws attention to the fact that any action taken by the collective body is done through the actions of individuals who have distinct beliefs, desires, preferences, intentions, and plans. This perspective exposes some pernicious myths about collective decisions. (5) However, an extreme focus on the "they" aspects can obscure important aspects in which groups can indeed display "it" characteristics. (6)

The second strand is recent philosophical work exploring the "it" aspects of groups. A rich and sophisticated literature on "group agency" has shown that the relationship between groups and individuals is not always a simple one. (7) A group of individuals acting in concert may come to possess properties that individuals in the group do not. A legislature, a board of directors, a city council, an appellate court, and (as this Article argues) a jury possess powers collectively and can engage in certain actions collectively that no individual members of that group can by themselves. For example, groups can pass a law, adopt a mission statement, adopt a resolution, overrule a prior precedent, or render a verdict. The relationships between these groups and their members present a number of puzzling possibilities: groups may engage in actions that no individuals in the group want, and groups may endorse conclusions that no individuals believe to be true; likewise, groups may fail to engage in actions that all members of the group would prefer, and groups may fail to endorse conclusions that all members believe to be true. (8) The idea of a group acting and believing in ways that deviate from the actions and thoughts of its members has an air of mystery to it, as though the group has emerged to take on a life--and a mind--of its own. But the process is not mysterious, and groups are not magical entities. Rather, the process is extraordinarily complex and this complexity often obscures aspects of group decision making.

The third strand is a subset of the second. One topic within the subject of group agency is "collective epistemology," which explores group knowledge and collective decision making on factual matters. (9) The branch of philosophy concerned with knowledge--epistemology--has in recent years focused on so-called social epistemology, which explores, among other issues, the extent to which various social practices and institutions affect knowledge and true belief. (10) A key topic in social epistemology is when, and under what conditions, groups possess knowledge or other epistemic states.

The fourth and fifth strands focus on law, legal proof, and juries. The fourth strand concerns the academic literature on the process of legal proof and its conceptual components. The primary theoretical debate in recent years has focused on whether to conceptualize this process in probabilistic or explanatory terms. (11) Under one conception, the process of proof involves explicitly probabilistic conclusions by jurors and judges on the formal elements of crimes, civil causes of action, or affirmative defenses; under the alternative conception, jurors and judges evaluate competing possible explanations of the evidence and disputed events.

The fifth strand concerns the scholarly literature on difficult doctrinal issues: On what exactly must jurors agree to constitute a verdict? (12) For example, must jurors only agree on whether a defendant committed a particular crime, or must they also agree on a particular factual scenario, theory, or means by which the defendant committed the crime? When are juror disagreements acceptable, and when do they undermine verdicts?

This Article will draw upon the first three strands of scholarship to present a conception of the jury as an "it" (as well as a "they"). The Article will then argue that this conception contains implications for the fourth and fifth strands. In particular, this conception will vindicate the explanatory conception of proof and, in the process, clarify the practical doctrinal issues regarding juror agreement.

Part I provides a general overview of group agency. This Part specifies the basic requirements for a group to act as an agent, clarifies the relationship between the agency of a group and the agency of its individual members, and explains why a group can exhibit characteristics of agency that deviate from the agency of its members. The basics of group agency depend on whether the group faces choices, can assess evidence and make judgments about its options on the choices, and has the power to choose between its options. The relationship between groups and individuals is complex. Although group agency depends upon, and is fixed by, the agency of individuals, the agency of individuals may be aggregated in a variety of different ways. These differences provide the mechanisms by which group agency may differ from the individuals on which it depends. Part I is devoted to unpacking these notions.

Building on Part I, Part II provides a general overview of group knowledge. This Part articulates a basic account of group epistemic judgments, which parallels individual epistemic judgments. Just like individuals, groups may endorse or accept certain propositions as true. And, just like individuals, sometimes these conclusions will be true and warranted by the evidence, and sometimes they will be false or unsupported by the evidence. This Part also explores reasons why group epistemic judgments may deviate from the epistemic conditions of its individual members: a group may know things its members do not, and members may know things the group fails to know.

Part III applies...