Trial by jury is a fundamental feature of democratic governance. But what form should jury decision-making take? I argue against the status quo system in which juries are encouraged and even required to engage in group deliberation as a means to reaching a decision. Jury deliberation is problematic for both theoretical and empirical reasons. On the theoretical front, deliberation destroys the independence of jurors’ judgments that is needed for certain attractive theoretical results. On the empirical front, we have evidence from (...) both legal and non-legal contexts that group deliberation often leads to group judgments that are worse in a number of respects than judgments generated by non-interactional methods of judgment aggregation. Finally, I examine some possible alternatives to free-wheeling jury deliberation, including the constrained and structured deliberation embodied in the DELPHI method, voting, and averaging of probabilistic judgments. (shrink)

In this article it is argued that the standard theoretical account of risk in the contemporary literature, which is cast along probabilistic lines, is flawed, in that it is unable to account for a particular kind of risk. In its place a modal account of risk is offered. Two applications of the modal account of risk are then explored. First, to epistemology, via the defence of an anti-risk condition on knowledge in place of the normal anti-luck condition. Second, to legal (...) theory, where it is shown that this account of risk can cast light on the debate regarding the extent to which a criminal justice system can countenance the possibility of wrongful convictions. (shrink)

This paper offers an articulation and defence of the modal account of legal risk in light of a range of objections that have been proposed against this view in the recent literature. It is argued that these objections all trade on a failure to distinguish between the modal nature of risk more generally, and the application of this modal account to particular decision-making contexts, such as legal contexts, where one must rely on a restricted body of information. It is argued (...) that once the modal account of legal risk is properly understood as involving information-relative judgements about the modal closeness of the target risk event, the objections to the view are neutralized. (shrink)

The right to trial by jury and the requirement of proof beyond a reasonable doubt are two of the most fundamental commitments of American criminal law. This article asks how the two are related, that is, whether disagreement among jurors implies anything about whether the beyond a reasonable doubt standard has been satisfied: Does the due process requirement of the beyond a reasonable doubt standard also require jury unanimity in criminal cases? Drawing on literature about the epistemological significance of disagreement, (...) this article considers the “equal-weight view” and its implications for the unanimity rule in criminal jury decision-making. The equal-weight view says that, roughly speaking, when people disagree on a topic, each view should be given equal weight. This implies, this article concludes, that the unanimity rule is required as a way of enforcing the beyond a reasonable doubt requirement. This article further concludes, however, that jurors should not always be instructed to apply the equal-weight view in their deliberation. Jurors, when applying crime definitions to particular cases, make determinations about both historical facts and normative issues through moral terms like “reckless,” “unjustifiable,” “depraved,” “cruel,” and “heinous,” which are common in criminal law. This article argues that while the equal-weight view should guide the jurors in determining factual issues, it is not the correct model for moral issues, not only because it would imply that acquittals are appropriate in many cases involving controversial moral questions but also because having the jurors follow it would undermine the basic justification for having the criminal jury as an articulator and enforcer of morality. (shrink)