Evaluating Juries by Comparison to Judges: A Benchmark for Judging?

Abstract

Proposals to substitute judicial decisionmaking for that of the jury or to make other jury reforms have been put forth without a clear understanding of the similarities and differences in how juries and judges decide legal cases. Compared to the extensive study of the decisionmaking of jurors and juries, there has been relatively little examination of trial judges' decisionmaking, and even fewer studies have directly compared the decisionmaking of juries and judges. While there are reasonable arguments for why judges and juries might differ in how they make legal decisions, these arguments are, in the absence of more research, speculative at best. This Article examines what the limited, but growing, body of empirical research has revealed about the similarities and differences in juror and judicial decisionmaking. It describes the range of methods available for comparing jurors and judges - studies of judge-jury agreement, comparisons of jury and bench trials, and simulation experiments - and reviews the existing research of each type. The Article concludes by discussing the normative difficulties in focusing on the comparison of juries to judges, the relative advantages and disadvantages of judicial and jury decisionmaking, and how future research might be structured in order to develop a more useful picture of how these two types of decisionmakers compare.

Keywords: Juries, judges, empirical

JEL Classification: K10, K41