Criminal Jury Uncertainty and Democratic Theory
University of Oregon School of Law
Western Political Science Association 2011 Annual Meeting Paper
Like the legislature, the criminal jury is a facet of American government that has traditionally enjoyed robust democratic credentials. In some ways, it perhaps even surpasses the legislature given its composition of only randomly-chosen lay citizens, who serve their civic duty with no apparent interests—electoral or otherwise. Yet although we may think of the jury as democratic in nature, almost as an intuitive matter, it is not exactly clear why we should think so. Indeed the electoral mechanism is conspicuously absent in the jury. What is it about the jury then that makes it a democratic institution?In this paper, I probe this question further and suggest a possible answer. I proceed by theoretically constructing, examining, and critiquing different democratic conceptions of the criminal jury. Ultimately, I find that most conceptions of the jury, which conceive of it as populist institution, representative institution, or deliberative institution, all capture important insights, but also all fall short due to problematic theoretical assumptions. After spelling out each of these conceptions and identifying their strengths and weaknesses, I will offer a more democratically defensible conception of the jury premised upon its role in institutionalizing uncertainty in the legal process.
Date posted: February 22, 2011
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