Monday, July 06, 2009

Quantifying Doubt in Criminal Trials

In his article "In Two States, a Lower Bar for Conviction" Adam Liptak of the New York Times writes:
A unanimity rule [for jury verdicts in criminal trials] would seem to reinforce the requirement that prosecutors prove their cases beyond a reasonable doubt. Two jurors out of 12, if you do the math, represent about 16 percent of the panel. That’s a fair amount of doubt.
This eminently silly statement proves that you can do sums and fractions and still produce ridiculous propositions. For example, would Mr. Liptak conclude that if a jury of twelve convicts, it is certain that the accused is guilty? Or does he think that each juror's amount of doubt should be measured and then averaged to determine how much doubt there "was"? Perhaps a successor to C.P. Snow should write a book called THE THREE CULTURES. There are people who are in the sciences. There are people who are in the humanities. Then there are people who...
Robert McNamara, who died today, also knew how to do his sums and fractions back in the 1960s. But his computations (which involved the number of enemy fatalities in the Vietnam war) were, for various reasons, largely meaningless.

The rest of Mr. Liptak's article is more interesting (and sensible).

If Justices Scalia and Thomas cling to their original intent mantra, they will rule that the Sixth Amendment requires unanimous jury verdicts for convictions in criminal trials. The question is whether three other Justices will endorse this bottom line.

Incidentally, wouldn't Scalia and Thomas also have to endorse a unanimity requirement and twelve member juries for the trial by jury that is guaranteed by the Seventh Amendment in some civil trials?

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