Jury voting paradoxes.

• Author: Iuliano, Jason
• Position: Special verdicts

The special verdict is plagued by two philosophical paradoxes: the discursive dilemma and the lottery paradox. Although widely discussed in the philosophical literature, these paradoxes have never been applied to jury decision making. In this Essay, I use the paradoxes to show that the special verdict's vote-reporting procedures can lead judges to render verdicts that the jurors themselves would reject. This outcome constitutes a systemic breakdown that should not be tolerated in a legal system that prides itself on the fairness of its jury decision-making process. Ultimately, I argue that, because the general verdict with answers to written questions does not suffer from these paradoxes, it should be adopted in place of the special verdict.

TABLE OF CONTENTS INTRODUCTION I. JURY VERDICT TYPES II. JURY VOTING PARADOXES A. The Discursive Dilemma B. The Lottery Paradox III. ELIMINATING THE JURY VOTING PARADOXES A. Preventing the Discursive Dilemma B. Preventing the Lottery Paradox CONCLUSION INTRODUCTION

Imagine you find yourself in court, unjustly accused of damaging your neighbor's car. Fortunately, you have truth on your side. Using that to your advantage, you mount a stunning defense and convince all of the jurors that you are not liable. Despite this feat, the judge renders a verdict in your neighbor's favor, forcing you to pay the car repair bill. How can this be? After all, not even a single juror believed that you were at fault. The answer is simple: you were the victim of a jury voting paradox.

In this Essay, I introduce two voting paradoxes that plague the jury system. Both paradoxes stem from the use of special verdicts. In particular, the problems occur because the jury's factual findings and the judge's application of the law to those findings do not always match up. This is not due to any malevolence on the part of the judge. Instead, owing to the nature of special verdicts, judges are prone to draw legal conclusions from the jury's findings that the jurors themselves would have soundly rejected. (1) The problem arises because special-verdict forms simplify jurors' responses and, in doing so, eliminate information that the judge needs to accurately apply the law to the jury's factual findings.

The two paradoxes that I discuss in this Essay are known in the philosophical literature as the discursive dilemma and the lottery paradox. The discursive dilemma results from the fact that individually consistent sets of judgments, when aggregated, can produce collectively inconsistent sets of judgments. (2) Because special verdicts hide this inconsistency, judges can rule in a way that jurors do not intend.

The lottery paradox results from the fact that information is lost when probabilistic judgments are converted into dichotomous judgments. (3) Humans do not hold beliefs with absolute certainty. Instead, there is a probabilistic element inherent in all of our judgments. Each of the propositions that I accept as true is held with a specific degree of belief--or credence. For instance, I am nearly 100% certain that I live on planet Earth. I am slightly less certain that my car is parked in the driveway. Perhaps it was stolen in the last several hours, or perhaps my memory is failing me and I actually parked it in my garage. Going one step further, I am even less certain that the stock market will go up tomorrow. If I were equally certain about all of these propositions, I would either be set to make a killing off the stock market or disturbed by my inability to remember which planet I live on. Neither is the case, so it seems undeniable that I have different degrees of belief in each of these propositions. In fact, it is so obvious that each of us has different credences for different propositions that it is extremely hard to imagine a functioning world in which that is not the case. Unfortunately, what is obvious to all of us is not obvious to the legal system. Because the special verdict disregards the distinction between probabilistic and dichotomous judgments, it hides information from judges that is necessary to understand the jury's factual findings. Without such information, judges may reach legal conclusions that do not follow from the jurors' factual findings.

The problems posed by the discursive dilemma and the lottery paradox strike at a foundational tenet of our judicial system: that the jury serves as the trier of fact and the judge as the applier of law. (4) It is fine to have different actors who are supreme in their own domains. When the judge's conclusions rely on the findings of the jury, however, the judge must understand what the jury has actually found.

The special-verdict form, as it is implemented today, is defective. It obfuscates the jurors' true beliefs, and, in doing so, it leads the judge to reach conclusions that the jurors themselves would not have accepted. Simply put, the jury voting paradoxes that I have identified are endemic to special verdicts. The general verdict, the other major verdict type, avoids these issues but suffers from other drawbacks. Specifically, in complex cases that require many factual findings, the general verdict offers little guidance to jurors. Of the verdict types in use, only the general verdict with answers to written questions sidesteps the jury voting paradoxes while still offering sufficient guidance to jurors. Unfortunately, this hybrid verdict is rarely adopted, and when it is, the verdict is often used inappropriately. (5) But this verdict form can be salvaged. In this Essay, I provide a method to do so and argue that properly using the general verdict with answers to written questions represents the best solution to the jury voting paradoxes.

In Part I, I discuss the three types of jury verdicts and outline the advantages and disadvantages of each. In Part II, I detail the jury voting paradoxes and explain why they present problems for the legal system. Finally, in Part III, I show how judges can eliminate the jury voting paradoxes by employing general verdicts with answers to written questions.

1. JURY VERDICT TYPES

   There are three basic types of jury verdicts: (1) general verdicts, (2) special verdicts, (6) and (3) general verdicts with answers to written questions. (7) I will first describe how these verdicts differ from each other and then discuss their respective advantages and disadvantages.

   The general verdict--the form most popular in Hollywood courtroom dramas--simply directs the jury to find in favor of one party or the other. (8) Behind closed doors, the jury finds the facts of the case and then applies the law, as instructed by the judge, to those agreed-upon facts. In open court, the jury only renders a final judgment on the issues in dispute; it does not reveal the analysis or factual findings that led each of the jurors to reach the verdict. For this reason, general verdicts are often called "black box" verdicts (9) and have even been described as being "as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi." (10) General verdicts are used in the vast majority of criminal trials. (11)

   The second type of verdict is the special verdict. This verdict is most commonly used in civil trials. (12) In contrast to a general verdict, a special verdict asks the jury to pronounce on the facts of the case and nothing more. (13) This type of verdict requires the judge to apply the law to the jury's factual findings. In the words of William Blackstone, special verdicts are "[where the jury] state[s] the naked facts, as they find them to be proved, and pray the advice of the court thereon." (14)

   The third and final type of verdict is the general verdict with answers to written questions. This is a hybrid verdict in which the jury both issues specific findings of fact and renders a general verdict. (15) The dual nature of this verdict form helps guide the jury's deliberations and allows the jury to provide a rationale for its decision. It achieves these benefits while still permitting the jury to resolve the central question of which party should prevail.

   The U.S. Court of Appeals for the Ninth Circuit has neatly summarized the basic differences among the verdict types as follows:

   If the jury announces only its ultimate conclusions, it returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict. (16) The basic differences among each of the three verdict types lead to distinct advantages and disadvantages. The general verdict's primary advantage is that it keeps the power to decide cases in the hands of the jury. Many prominent legal scholars argue that reserving this power for the jury is necessary to ensure that the jury system functions as it was designed. (17) Proponents of the general verdict fear that, without absolute power over a case's outcome, jurors will lose their ability to rein in harsh laws when justice so demands. (18) In fact, U.S. Supreme Court Justices Black and Douglas believed so strongly in the importance of the general verdict that they opposed incorporating Rule 49--which permits judges to use special verdicts--into the Federal Rules of Civil Procedure. Justices Black and Douglas stated that

   [o]ne of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government.... Rule 49 is but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments. (19) Although the general verdict provides jurors with more discretion, it does so at the cost of clarity. By its very nature, the general verdict is less transparent than the special verdict. The...