Group Agency and Legal Proof; or, Why the Jury Is an 'It'

66 Pages Posted: 18 May 2014 Last revised: 20 Jun 2015

See all articles by Michael S. Pardo

Michael S. Pardo

University of Alabama School of Law

Date Written: 2015

Abstract

Jurors decide whether certain facts have been proven, according to the applicable legal standards. What is the relationship between the jury, as a collective decision-making body, on one hand, and the views of individual jurors, on the other? Is the jury merely the sum total of the individual views of its members? Or do juries possess properties and characteristics of agency (for example, beliefs, knowledge, preferences, intentions, plans, and actions) that are in some sense distinct from those of its members? This Article explores these questions and defends a conception of the jury as a group agent, with agency that may differ from that of its members.

The Article then argues that this conception of the jury contains important implications for law and legal proof. These implications are both theoretical and practical. On the theoretical side, recent debates in evidence law have focused on whether legal proof is probabilistic or explanatory in nature. These debates, however, have largely assumed a single, unified fact-finder (whether jury or judge). The group-level perspective reveals new conceptual problems for the probabilistic theory that are alleviated by the explanatory theory; it thus provides further vindication for the explanatory account. On the practical side, the conception of the jury as a group agent, coupled with the explanatory account of proof, clarifies doctrinal issues on whether and when jurors must agree on factual details; in both criminal and civil cases, these issues have caused considerable confusion and uncertainty for courts and commentators.

Keywords: group agency, juries, verdicts, collective epistemology, voting rules, evidence, proof, probability, explanations, conjunction paradox, doctrinal paradox, discursive dilemma

Suggested Citation

Pardo, Michael S., Group Agency and Legal Proof; or, Why the Jury Is an 'It' (2015). 56 William & Mary Law Review 1793 (2015); U of Alabama Legal Studies Research Paper No. 2437959. Available at SSRN: https://ssrn.com/abstract=2437959

Michael S. Pardo (Contact Author)

University of Alabama School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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