36 Pages Posted: 1 Apr 2011 Last revised: 3 Apr 2011
Date Written: March 31, 2011
Jury size, selection options, and selection sequencing all introduce uncertainty into the adjudicatory system in different ways. Large juries, like those the ancient Greeks used (500), effectively make bribery of the jury infeasible, but also make the juries more representative of the community's values and consistent from case to case in their verdicts - a seeming virtue that is nevertheless susceptible to systemic errors. Small juries, like those used in the United States, are more quirky and random, less consistent across cases and less likely to represent the average values of the community, but serve a useful purpose of adjudicatory diversification. In other words, small juries, despite their downsides, provide a helpful safeguard against systematic injustices or errors in the legal system.
Strikes - whether peremptory or "for cause" - do not maximize the neutrality or fairness of juries, despite our frequent rhetoric to the contrary, because litigants cannot select jurors - the strike system is a method of de-selecting jurors whose biases are most evident or predictable. This means that the jurors who comprise the final panel at the end of voir dire are generally unpredictable or their leanings uncertain. The strike system maximizes uncertainty for both parties, which at that moment in the trial sequence directly impacts the parties' incentives for settlement.
The sequence for jury selection varies between jurisdiction, with two main approaches to the timing of empaneling (beginning or end of voir dire), two approaches for strikes (alternating or simultaneous-blind), and two approaches for culling individuals from the venire to take a spot in the jury box (random or in order of seating in the courtroom). These three sets of binary options recombine differently across jurisdictions. Each sequencing system presents litigants with different types of uncertainty, or uncertainty at different points in the voir dire. This varying uncertainty directly impacts the optimal strategy for each side in using their strikes.
Keywords: jury, juries, peremptory, strikes, uncertainty, Taleb, Black Swan, Athens, Athenian, game theory, randomness, Knightian
JEL Classification: C72, C73, D82, D84, D82, K40, K41, K00, K19
Suggested Citation: Suggested Citation
Stevenson, Drury D., Intentional Uncertainty within Jury Systems (March 31, 2011). George Mason Law Review, 2012. Available at SSRN: https://ssrn.com/abstract=1799808