BRITT, Elizabeth C.

Spring 2009, 39:2, pages 103 - 123

Dangerous Deliberation: Subjective Probability and Rhetorical Democracy in the Jury Room

Abstract:  

Anxiety about the deliberative abilities of ordinary citizens, feared to be too easily influenced by the powers of rhetoric, has accompanied democracy since its birth. This anxiety is reflected in critiques of the American jury system. This article examines efforts in the middle of the twentieth century to rationalize jury decision making through the use of mathematical probability. These efforts-one a trial in which a prosecutor used dubious statistics to help convict a couple of a robbery and the other a call for juries to use formulas for assessing the likelihood of guilt-reflect a desire to simultaneously harness and contain the dangerousness of rhetoric. More significantly, proposals to mathematize jury decision making individualize deliberation and privilege expert over everyday knowledge, signaling a threat not only to this important feature of American democracy but also to the ability of citizens to deliberate collectively in debates increasingly dominated by statistical reasoning.