This essay was the runner up in the undergraduate category of the 5th Annual Oxford Uehiro Prize in Practical Ethics

Written by University of Oxford student Angelo Ryu

1. Introduction

Many legal systems have juries decide cases of an especially grave nature. Because a jury consists of a group of individual jurors, they need a decision-making procedure before it may act. One such procedure is a voting rule: most require either unanimity or supermajority to deliver a verdict. An inability to do so results in a mistrial.

Mistrials are often treated as a sort of failure which ought to be avoided. To that end judges sometimes intervene if deadlock seems likely. In England there is the Watson direction, which refers to a collective obligation to return a verdict. The United States has the Allen charge, which informs jurors of a duty to agree upon a verdict, if possible.

These instructions are often criticised as an impermissible judicial intervention infringing on jury autonomy. At best they are treated as a sort of necessary evil, which must only be used in extraordinary cases. But I argue there is nothing objectionable about such instructions because they simply track the obligations already held by jurors. They serve an important function in informing jurors of their moral position. There may indeed be an imperative for legal systems without such recourse to implement one, as jurors may not always know the duties incumbent upon them in the exercise of their authority. But all this presumes that jurors face an obligation which mirrors these jury instructions. The aim of this essay is to defend that claim.

2. The duty to decide

It seems intuitive that judges hold a professional obligation to decide cases properly before them. There seems something wrong about a judge that refuses to hear a case because it is too hard. Or a judge that hears a case but at the end declares that she is unable to reach a decision. Part of being a judge is to decide. This is an often-overlooked point in discussions of judicial recusal. If the reason for recusal is illegitimate, a judge is not just allowed but bound to hear the case. Other stringent professional obligations can be easily seen. Firefighters are expected to put themselves in harm’s way to save others. So too are police officers. We might think that an officer who waits outside a school during a mass shooting commits a serious wrong, as was the case in the recent shooting in Parkland, Florida.

But while the professional obligations of judges are widely examined, the obligations of jurors are given little attention. This is so despite judges and juries having similar roles while acting as triers of fact. Admittedly, jurors are not professionals in the same way as judges. Being a juror is not a permanent job. But neither is being a volunteer firefighter, yet we still expect them to risk their lives in case of a fire. An objector might argue that volunteer firefighters consent while jurors

do not. A possible argument in response is that jurors do consent to jury service by taking part in civic life and taking advantage of the benefits of citizenship. This tracks the idea of consent in social contract theory. But this argument need not obtain for a juror to hold a professional obligation, for this sort of obligation derives from the person’s special circumstances and the rights of others, not consent. A doctor has a duty to use his skills in an emergency, even if she is

on vacation in Barbados. The special abilities of the doctor and the patient’s right to life are what grounds the doctor’s obligation, not her consenting to work.

The same goes for jurors. By being a member of a jury, they hold special power over a person’s liberty. That person has a right to have their case heard and decided at the end of trial. In other words, parties have a right to a decision. This grounds the obligation to decide cases, applying to judges and juries alike. But one might point out that jurors face other obligations as well. For example, they owe it to the community to convict those, but only those, who have flouted the duties under which we jointly live. In cases of strident disagreement, one can imagine jurors reasonably believing that these duties are in conflict. One might faithfully believe the defendant guilty in the face of disagreement. How jurors ought to resolve such conflict is difficult, and the Watson and Allen instructions do not purport to offer an answer. But I argue that recognising the existence of a duty to avoid deadlock is important, and these instructions aim to do just that.

3. The jury as group agent

Juries are often justified as promoting certain democratic goods in the sense that it is drawn from the general polity and can act as a check to legal elites. But the argument for a jury as opposed to a public vote is clear: the fair adjudication of a trial requires the careful consideration of evidence. It also requires the careful exclusion of facts not in evidence. Further, the formal rules in law must be followed when applying factual findings to a verdict. The careful consideration of these reasons, both evidential and legal, need time and intellectual commitment. A smaller group formed for the specialised purpose of making factual determinations in trial is better positioned than the general polity.

The group nature of juries is important in examining its ethical obligations. For one might say that jurors can only deliver a verdict as a group, and it is the group that fails if they cannot decide. I argue, however, that a duty of decision flows from a jury to its members. While a jury must act as a group to deliver a verdict, it does so through joint action. By this I mean something more than a mere aggregate of the individual juror’s vote. This is because a jury must deliver a verdict through intentional action, as only an intentional group satisfies a defendant’s right to be judged by an agent capable of acting in response to proper (good) reasons. There are two parts to this claim, which I will defend in turn. First, that this right exists. Secondly, that only an intentional group agent can satisfy this right.

Defendants have a right to be heard by someone who acts in response to proper reasons. This is why we are entitled to an unbiased tribunal, as bias affects an adjudicator’s responsiveness to proper reasons. Such a right seems fundamental to justice. We would find judgement by chance, through perhaps a coin flip, highly objectionable. Trial by combat is another example of a judgement relying upon improper reasons. A state cannot arbitrary exercise its power to punish its citizens because it would unjustly infringe this right. But any act which is in response to reasons is performed intentionally. That is, to act for reasons is to act intentionally.

Say that Sam accidentally tripped Amy on the street, causing her to fall and break her leg. This in turn makes her miss an important job interview. But we could not explain Sam’s act by way of reason. He did not trip Amy to make her miss the interview, or for that matter any reason at all. He would have no answer as to why he tripped Amy. As such he acted unintentionally. Acting for a reason requires two steps: considering what reasons there are to act and deciding upon a course of action because of a reason. So if Sam had a reason for tripping Amy (like, say, to hurt her) he must have tripped her intentionally.

Therefore, a jury must be an intentional agent if it is to respond to reasons. This requires goodfaith deliberation. To see why, consider a jury incapable of intentional action, like a voting machine. Jurors would consider the evidence individually and cast their vote, with the verdict being decided by pre-set voting rules. Such a procedure, I argue, would likely result in an irrational joint act. While jurors cast their vote on a binary decision of guilty or not guilty, they may do so for differing evidential reasons. A jury which fails to unify its reasoning could suffer from collective irrationality. For example, jurors might vote to convict on reasons which are mutually exclusive. Juries are formed as deliberative bodies so that they may discuss among themselves the various reasons which act upon them, allowing for coherent action.

One might think a jury need not respond to reasons as a single agent. What is wrong with a jury consisting of persons who individually respond carefully to reasons? Such a process need not be arbitrary: a well-ordered jury system is structured towards truth finding, avoids bias or elite capture through random selection, and gives the defendant a fair shot at convincing each juror. It could, in other words, be a fair process. But I argue that this is not enough when deciding upon guilt in a criminal setting. It requires the community to act more deliberately and precisely than this, as the group verdict ought to be based on articulable, coherent reasons.

I would, however, distinguish between delivering a verdict while offering reasons and doing so based on coherent reasons. The former serves an explanatory function while the latter goes to more fundamental demands of justice. The right to a decision based on coherent reasons does not depend upon whether those reasons are made public. As a jury returns with a single answer, I argue that it is not enough for each juror to act rationally. The joint action must itself be rational, which requires the jury to act as a single, unified agent.

4. Finding an individual obligation

We have thus far found two important things. First, juries have a group obligation to deliver a verdict. Second, juries must be rational actors capable of intentional joint action. From this I follow Kantian lines to find a pro tanto duty to do an act which, if collectively done, leads to the fulfilment of the group obligation. In this case, jurors qua individuals hold a duty to agree with each other, since such agreement allows the jury to deliver a verdict. The argument progresses as follows. An ideal world would have all rational beings satisfying their moral obligations. This rational being need not necessarily be human, as groups can also be rational actors capable of intentional action. We should act with the aim of doing our part in realising this world into existence. To adopt this ideal world as a moral aim, however, means adopting the means necessary to achieve that end. A group obligation to act entails an individual duty because individual action supervenes on group action. A difference in group action is only possible if and only if there is some change in the individual actions of its members. Thus, a group obligation entails a duty on its members to act because it is a necessary means to meet that group obligation.

One might respond by implementing a simple majority voting rule for juries. But this creates two problems of its own. The first is conceptual and the other prudential. First, how might one say there was no reasonable doubt in the outcome if 5 jurors vote to convict and 4 to acquit? This illustrates the difficulty one might have in reconciling a close vote with a very high burden of proof. The second is that a stricter voting rule encourages deliberation, because it places a higher bar on joint action. And as we have seen, robust deliberation is necessary if a jury is to act intentionally.

5. Conclusion

I have argued jurors face an associational duty to do their bit in avoiding deadlock. This tracks the obligation described in jury instructions like the Watson and Allen charge. Thus, they are unobjectionable. They inform jurors of certain obligations which ought to guide the way they do their job, and are therefore a practical way to address the moral problem of jury deadlock.