The curious case of the jury-shaped hole: A plea for real jury research
| Author | Lewis Ross |
| DOI | http://doi.org/10.1177/13657127221150451 |
| Published date | 01 April 2023 |
| Date | 01 April 2023 |
| Subject Matter | Articles |
The curious case of the jury-shaped
hole: A plea for real jury research
Lewis Ross
Department of Philosophy, London School of Economics, London, UK
Abstract
Criminal juries make decisions of great importance. A key criticism of juries is that they are
unreliable in a multitude of ways, from exhibiting racial or gendered biases, to misunderstand-
ing their role, to engaging in impropriety such as internet research. Recently, some have even
claimed that the use of juries creates injustice on a large scale, as a cause of low conviction
rates for sexual criminality. Unfortunately, empirical research into jury deliberation is under-
mined by the fact that researchers are unable to study live juries. The indirect sources of evi-
dence used by researchers suffer from various problems, the most important of which is
dubious levels of ecological validity. Real jury research—studying live jury deliberation—is con-
troversial. However, as I argue, the objections to it are unconvincing. There is in fact a moral
imperative to facilitate real jury research.
Keywords
bias, criminal law, criminal procedure, jury trial, mock juries, rape conviction rates, real jury
research
Introduction
Jury trials are among few situations where private citizens direct the coercive machinery of the state.
Unsurprisingly then, the merits of jury trials are a topic of perennial debate. Given that most trials
across the world are decided by professional judges, the right to be tried in front of a panel of lay
peers can seem like a cumbersome affordance.
1
However, defenders of trial by jury claim a number of
advantages, such as instantiating or symbolising democracy,
2
improving the character of those who
Corresponding author:
Lewis Ross, Department of Philosophy, Logic and Scientific Method, London School of Economics, Lakatos Building, London,
WC2A 2AE, UK.
Email: l.ross2@lse.ac.uk
1. Here, I focus on juries in criminal trials. I won’t discuss the (less common) use of juries in civil trials, although much of what I say
applies.
2. E.g. Abramson (2000).
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(2) 107–125
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DOI: 10.1177/13657127221150451
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participate,
3
serving as the ‘conscience of the community’,
4
and even acting as a bulwark against state
oppression.
5
Periodically, fuel is added to the debate in the form of conjecture and empirical evidence suggesting
the poor performance of trial by jury. Taking a topical and much vexed example, some suggest that jury
trials are partly responsible for the execrably low conviction rate for sexual crimes, creating what has
been called a ‘justice gap’for complainants.
6
This concern has been buttressed by evidence suggesting
that jurors are influenced by a variety of ‘rape myths’when deliberating.
7
This is an example of an epi-
stemic objection against trial by jury. Broadly, epistemic objections contend that juries are unreliable arbi-
ters of truth or that they reach the truth in an unsafe or deficient manner. Understanding the nature and
weight of epistemic challenges to jury trial is crucial for sensibly comparing juries with alternative
systems, like trial by professional judge, and thus essential for deciding in whose hands criminal adjudi-
cation should lie.
But there is a glaring shortcoming that undermines debate about jury trials: namely, the paucity of evi-
dence on real juries engaged in live deliberation. Research on jury deliberation is almost entirely indirect,
typically using mock juries or various types of self-report survey. There are many problems with the
current research paradigm. Among other issues: the ecological validity of current methods is extremely
dubious; most research is from the United States and does not readily generalise to other jurisdictions; and
there are contradictory results between high-profile research programmes that employ different method-
ologies. After explaining issues with the current research paradigm, I defend the obvious solution:
researchers should be permitted to study real juries by allowing transcription of deliberations. The objec-
tions to this suggestion turn out to lack force. Real jury research is not only defensible and prudent: given
the weighty interests at stake, it is a moral imperative.
Epistemic objections to jury trial
Trial by jury can be evaluated across two primary dimensions: (i) moral and political value, and (ii) epi-
stemic efficacy or accuracy. How these dimensions relate is somewhat complex. The moral and political
value of the jury can stand partly independent of its epistemic power. For example, the egalitarian or
democratic value of juries might be decisive even if juries are somewhat less reliable than judges (just
as elections might be preferable even if less reliable than having a benign dictator appoint public offi-
cials). However, whenever a jury makes a mistake, this is not just an epistemic problem. It is a moral
problem whenever a jury finds an innocent person guilty, given the wrongful punishment and condem-
nation resulting from such errors. It is also a moral problem whenever a jury returns a false negative—
when it acquits the guilty—since a common view is that states are under a moral obligation to deter crime,
incapacitate the dangerous and/or offer the appropriate retributive penalty for wrongdoing. No matter
what other strengths trial by jury may have, there is presumably some threshold of reliability
that juries must surmount in order to be morally acceptable. The democratic value of the jury
3. This argument is an old one and often ascribed to Mill (e.g. 1975: 75–76) but is now widely championed in work on ‘deliberative
democracy’.
4. E.g. see Lee (2018: Section IV) for general discussion.
5. E.g. see Huemer (2018).
6. In the UK, the recent ‘End-to-End Rape Review Report’suggested that the complaint-to-conviction level for sexual crimes is
below 2% (see: https://www.gov.uk/government/publications/end-to-end-rape-review-report-on-findings-and-actions). Some
causes of the low conviction rate problem are found much earlier in the criminal justice process than jury trials, such as the deci-
sion not to prosecute certain types of crime. But these are intimately related: prosecutors will only proceed when they think there
is a reasonable chance of a jury opting to convict. Nevertheless, the conviction rate conditional on prosecution for sexual crimes
is still lower than that of other serious crimes.
7. Leverick (2020) and Chalmers et al. (2021a) discuss the current state of play, with Thomas (2020) providing a more sceptical
perspective. These results will be discussed in detail below.
108 The International Journal of Evidence & Proof 27(2)
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