Jury ignorance and political ignorance.

AuthorSomin, Ilya
PositionThe Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. VOTER KNOWLEDGE VS. JUROR KNOWLEDGE A. The Problem of Rational Political Ignorance B. Rational Irrationality C. Implications for Juries II. THE EVIDENCE ON JURY IGNORANCE AND BIAS A. Favorable Evidence on Jury Knowledge and Objectivity B. Negative Evidence on Jury Knowledge and Objectivity C. Implications III. IMPLICATIONS FOR THE USE OF JURIES BEYOND THE COURTROOM CONCLUSION INTRODUCTION

For centuries, juries have been hailed as a model of popular participation in government. In the nineteenth century, Alexis de Tocqueville famously praised the American jury as "both the most effective way of establishing the people's rule and the most efficient way of teaching them how to rule." (1) Modern defenders of the jury have also often emphasized its role as a tool for democratic participation in the justice system. (2)

But even as he praised the jury's role as a political institution, de Tocqueville worried that jurors might lack the knowledge needed to perform their judicial function properly:

The jury system arose in the infancy of society, at a time when only simple questions of fact were submitted to the courts; and it is no easy task to adapt it to the needs of a highly civilized nation, where the relations between men have multiplied exceedingly and have been thoughtfully elaborated in a learned manner. (3) Another nineteenth-century writer, Mark Twain, expressed the same concern in much blunter terms:

The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury.... I desire to tamper with the jury law. I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers. (4) Today's society is arguably even more "highly civilized" than that described by de Tocqueville in the 1830s, or at least more complex. And today's trials often require jurors to evaluate evidence and testimony far more complicated than that of de Tocqueville's time or Twain's. (5) These changes make it all the more vital that jurors "possess intelligence and honesty," while avoiding "ignorance and stupidity," as Twain put it. (6) It is therefore essential to ask whether jurors have the knowledge and cognitive abilities needed to cope with the challenges of modern trials.

A great deal of evidence suggests that voters often fail to acquire the knowledge needed to cope with the enormous size, scope, and complexity of modern government. (7) The majority of the public is often ignorant of very basic political information, and voters also often do a poor job of evaluating the political information they do know. (8) Given the oft-made analogy between jury service and political participation, it is important to ask whether jurors are prone to similar pitfalls. Do they also often make poor decisions out of ignorance or illogical evaluation of evidence?

This Article considers that question. My tentative conclusion is that jurors are likely superior to voters in terms of both acquiring knowledge and utilizing it in a rational way. But ignorance and irrationality do sometimes compromise jury decision making, especially in complex cases. They are even more likely to bedevil efforts to use jury-like institutions to make broad public policy decisions, as opposed to merely decide discrete cases.

Part I summarizes the problem of political ignorance in the case of voters, and explains some theoretical reasons why we would expect jurors to acquire greater relevant knowledge than voters do and to use it more wisely. Jurors have stronger incentives to both acquire political information and analyze it in a rational way. Unlike voters, who have only an infinitesimal chance of influencing electoral outcomes, jurors presumably realize that their individual votes are likely to make a decisive difference to the outcome of a trial.

Part II discusses the relevant empirical evidence on jury knowledge and rationality. Much of that evidence shows juries performing fairly well. But it also suggests that ignorance and bias undermine the quality of jury decisions in unusually complex cases, such as ones involving scientific evidence, punitive damages, and complex jury instructions. Overall, juries perform better than voters in large part because of the ways in which trials differ from elections. Unlike voters, jurors usually decide only a narrow, specific case rather than a broad set of policy issues, and they are required to listen to extensive evidence from both sides before making a decision.

Finally, Part III expresses skepticism about the possibility of using jury-like mechanisms to help decide broad policy questions. Such proposals break down some of the key differences between jury service and voting that make the former function more effectively than the latter.


    Widespread political ignorance among voters gives us some reason to worry that similar ignorance might impair jurors. At the same time, however, there is reason to believe that the problem of jury ignorance during trials is likely less severe than that confronting voters in elections.

    1. The Problem of Rational Political Ignorance

      Extensive evidence suggests that political ignorance is widespread among voters. Over sixty years of survey data reveal that most of the public has a fairly low level of political knowledge. (9) That has not changed in recent years. Soon after the important 2010 congressional midterm election, only 46 percent of adults knew that the Republican Party had won control of the House of Representatives, but not the Senate. (10) In 2003, 70 percent of the public was unaware of the enactment of President George W. Bush's massive prescription drug plan, the biggest federal program in almost forty years. (11) In 2009, only 24 percent of Americans realized that the important "cap and trade" proposal then recently passed by the House of Representatives as an effort to combat global warming addressed "environmental issues." (12) Forty-six percentbelieved that it was either a "health care reform" or a "regulatory reform for Wall Street." (13)

      This kind of ignorance extends beyond specific issues to structural features of American politics, the nature of political ideology, and the activities of prominent individual politicians. (14) For example, a 2006 Zogby poll found that 58 percent of Americans cannot name the three branches of the federal government: executive, legislative, and judicial. (15) Only 28 percent can identify two or more of the five rights protected by the First Amendment. (16) Right before he was nominated for the vice presidency in the summer of 2012, 43 percent of Americans had never heard of Representative Paul Ryan and only 32 percent knew that he was a member of the House of Representatives, as opposed to a senator, governor, or secretary of state. (17) This degree of ignorance was striking in view of the fact that Ryan had been a prominent figure in national politics for several years and the GOP's leading spokesman on entitlement policy and spending issues. (18)

      Pollsters and public opinion scholars have found numerous other examples of widespread political ignorance. (19) Such ignorance is not of recent origin, but has been a common finding of public opinion research for many decades. (20) It is not merely an artifact of recent generations and has persisted despite major increases in education levels and intelligence as measured by IQ scores. (21) The rise of the Internet and other electronic media has also had little impact on political knowledge levels. (22)

      Political ignorance persists at least in large part because it is rational. Because the chance of any one vote influencing the outcome of an election is infinitesimally small, there is little incentive to become knowledgeable about politics if the only reason for doing so is to increase the likelihood of casting a "correct" ballot. (23) In a presidential election, for example, one voter's odds of casting a decisive ballot are about one in sixty million or even less. (24) Even in smaller-scale elections at the state and local levels, the chance of casting a decisive ballot is still very low, albeit higher than in a presidential contest. (25)

    2. Rational Irrationality

      In addition to having little incentive to acquire political information, most voters also have little reason to try hard to evaluate the political knowledge they do possess in an unbiased way. Indeed, the theory of rational ignorance implies that most of the political knowledge we have is likely to be acquired for reasons other than learning the truth about politics and public policy. (26) Such reasons include entertainment value, validating preexisting views, or cheering on one's preferred party or ideology. (27) This leads to what economist Bryan Caplan labels "rational irrationality"--a tendency to assess political information in a highly biased way that often leads to illogical and seriously misguided conclusions. (28)

      Just as sports fans evaluate new information about their favorite team and its rivals in a biased fashion, "political fans" tend to be similarly biased in favor of their preferred party and ideology. (29) This is individually rational behavior for the same reason that political ignorance is rational for most voters. Since there is little payoff to getting at the truth of political issues, biased "political fans" can enjoy following politics without suffering negative consequences for their cognitive errors. But such individually rational behavior is collectively harmful, as voter bias influences public policy and electoral results. (30)

      Ironically, those most interested in politics may be most prone to this kind of bias. (31) Just as the most committed sports fans tend to be both the most knowledgeable about the sports they watch and the most biased in favor of their preferred teams, so too the most dedicated...

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