Over the last two years, a group of scholars from disciplines including political science, political theory, cognitive psychology, information science, statistics and computer science have met under the auspices of the MacArthur Foundation Research Network on Opening Governance. The goal of these meetings has been to bring the insights of different disciplines to bear on fundamental problems of collective problem solving. How do we best solve collective problems? How should we study and think about collective intelligence? How can we apply insights to real world problems? A wide body of work leads us to believe that complex problems are most likely to be solved when people with different viewpoints and sets of skills come together. This means that we can expect that the science of collective problem solving too will be improved when people from diverse disciplinary perspectives work together to generate new insights on shared problems.
Political theorists are beginning to think in different ways about institutions such as juries. Here, the crucial insights will involve how these institutions can address the traditional concerns of political theory, such as justice and recognition, while also solving the complex problem of figuring out how best to resolve disputes, and establishing the guilt or innocence of parties in criminal cases.
Melissa Schwartzberg is an associate professor of political science at New York University, working on the political theory of democratic decision making. I asked her a series of questions about the jury as a problem solving institution.
Henry: One of the most common forms of collective problem solving in our every day lives are juries - citizens are supposed to come together to decide on a legal verdict. How did juries come into being?
Melissa: Juries date at least to ancient Greece. In the sixth century BCE, Solon is thought to have instantiated a people's court, the heliaia, to hear public suits (graphai), for which 6,000 citizens were eligible to serve. Under Cleisthenes, in the fifth century, the heliai became a set of "People's Courts," the dikasteria. These courts and the assembly (ecclesia) constituted the two fundamental institutions of classical Athenian democracy.
Henry: Juries imply that we respect citizens equally - every citizen is in principle equally likely to be selected for jury service. Yet they are also supposed to deliver good verdicts. Are there ever situations in which these two principles - respect for the equality of citizens' ability to judge, and the desire to reach the 'right' verdict – come into conflict with each other?
Melissa: One way to answer this question is to examine the sorts of judgments juries are asked to render. Note, for instance, that the civil jury itself is relatively rare worldwide, and even in the United States is in serious decline. There are many reasons why the use of civil juries is diminishing, but some have called for the abolition of civil juries on the grounds that they are incompetent, particularly in complex cases involving technical evidence. Yet the seventh amendment of the United States constitution provides for civil jury trials, and the ability to serve as a member of a jury was hard-won, particularly for African-Americans and women. So even in that familiar context, we might confront a tradeoff between rendering just verdicts and protecting the rights of citizens to judge.
Henry: You think that it may be a bad idea to require that juries reach unanimous verdicts. Why?
Melissa: We tend to think unanimous verdicts are "more legitimate": that is, unanimity reflects agreement among the members of the jury, and signals to the rest of us that we should have confidence that the verdict is just. However, one primary concern about the unanimity requirement for verdicts is that it seems to yield some risk of coercion for "holdout" members of the jury. That is, a lone juror who opposes the verdict that the rest of the jury wishes to reach may be subject to brow-beating, and even threats, and is likely to capitulate. So a unanimous vote is not always evidence of "true" consensus. Reducing the threshold so that one or two jurors can dissent without hanging the jury might enable them to vote their conscience, while still preserving the ability of the jury to render a verdict; the dissent might also be valuable on appeal. And when we have a unanimous verdict under a weaker threshold, we can properly draw the sort of confidence in the verdict that unanimity is supposed to offer us.
Henry: Are there any general ways for figuring out the kinds of issues that juries (based on random selection of citizens and some voting rule) are good at deciding on, and the issues that they might have problems with?
Melissa: This is a difficult question, in part because we don't have unmediated access to the "true state of the world": our evidence about jury competence essentially derives from the correlation of jury verdicts with what the judge would have rendered, but obviously that doesn't mean that the judge was correct. One way around the question is to ask instead what, historically, have been the reasons why we would wish to assign judgment to laypersons: what the "jury of one's peers" signifies. Placing a body of ordinary citizens between the state and the accused serves an important protective device, so the use of the jury is quite clearly not all about judgment. But there is a long history of thinking that juries have special access to local knowledge - the established norms, practices, and expectations of a community, but in early periods knowledge of the parties and the alleged crime - that helps to shed light on why we still think "vicinage" is important.