Document Type

Working Paper

Publication Date

5-18-2014

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Social Insurance Research Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

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 decisionmaking 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 membersThe 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 factfinder whether jury or judge The grouplevel 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

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