Saturday, 2 March 2013
An English jury, in a criminal trial, must decide whether the prosecution has shown, beyond reasonable doubt, that the accused committed the crime. Normally, all 12 jurors must agree, but judges sometimes allow verdicts agreed on by only ten jurors.
Suppose that a jury starts its deliberations, and after some discussion, takes a vote. Eight say that the prosecution has shown guilt beyond reasonable doubt, but four say that it has not. All of these opinions have been reached by considering only the evidence presented in court, and comments by jurors on that evidence. After more discussion, it becomes clear that no juror is going to change his or her opinion, so long as only those things are considered.
Jurors might then consider the pattern of voting. Any one of the eight might reason as follows.
"Some people in the jury room think that the prosecution has not discharged its burden of proof. There is no ground to think that they are not reasonable people, and in any case, it is unlikely that one would get four unreasonable people among 12 randomly chosen people, although one might get one or two. If the prosecution had discharged its burden of proof, they would probably have been convinced, because reasonable people generally hold reasonable views on such questions. They are not convinced, so I should change my view and vote for acquittal."
(It might be thought that there would be a mirror-image argument for the four: "Eight apparently reasonable people have concluded that the prosecution has discharged its burden of proof, and they would not have concluded that if it had not, so I should change my view". But that argument should be excluded by the fact that the burden of proof is on the prosecution. Doubt trumps certainty. The views of the four could plant doubts in the minds of the eight, but the views of the eight could only plant doubts over whether to acquit in the minds of the four, and a doubt as to whether to acquit is not enough to convict.)
Clearly, this reasoning is not always followed in practice. If it were, we would never get deadlocked juries, because the reasoning would transform deadlock into acquittal. The psychological explanation may well be that at least some jurors think their job is to decide whether the accused is guilty, rather than to decide whether the prosecution has shown guilt beyond reasonable doubt. A seemingly more respectable reason would be that jurors made up their minds individually, on the basis of the evidence presented and other jurors' comments on that evidence, and did not consider that their views should be influenced by the views of other jurors. And yet, we may ask whether that reason really would be respectable. It would imply that each juror should decide on the basis of the standard of reasonableness of doubt that he or she would use when he or she had no-one else's guidance available, rather than on the basis of a standard of reasonableness of doubt that had been tested by reference to the conveniently available sample of 11 other people in the jury room. Would not such a test be likely to improve one's grasp of the appropriate standard? The concept at work should be as objective as possible: doubt that is reasonable, not doubt that an individual, with his or her foibles, might happen to consider reasonable.
Occasionally, comparable considerations are tackled explicitly in legislation. The UK is about to have a general anti-abuse rule put into its tax legislation. Assuming that the legislation follows the draft that was published in December 2012, the use of a tax avoidance scheme will only be caught by this new rule, removing the anticipated tax saving, if that use "cannot reasonably be regarded as a reasonable course of action in relation to the relevant tax provisions". (Even if the use of a scheme is not caught by the new rule, it may very well be caught by other rules.) For the text and commentary, see GAAR Guidance Part A, 11 December 2012, section 5.2, available here:
This is known as the double reasonableness test. If there are reasonable views on both sides, both that the use of a scheme was a reasonable course of action and that it was not, then use of the scheme will not be caught. It is natural, and very likely to be correct, to determine whether a view is reasonable by considering whether it is supported by arguments that a substantial proportion of people who are well-informed about the subject matter would consider to be reasonable, and whether there is an absence of any manifest objection that would lead most well-informed people to reject the view.
We should note a subtlety here. The legislation focuses on the reasonableness of a view, not of people who hold it. A reasonable person may happen to hold some unreasonable views. As the official commentary points out, it is not enough simply to produce an eminent lawyer or accountant, who states that a course of action was reasonable. (Ibid., paragraph 18.104.22.168)
If, however, a substantial number of eminent lawyers and accountants stated that a course of action was reasonable, it would be hard to maintain that this view was unreasonable. When we test for reasonableness, as distinct from correctness, the number of votes among experts carries some weight. (It may also carry weight in relation to correctness, but in a rather different way, and a minority of one can be correct.)
This reflects the fact that reasonableness is a normative concept that is directly related to the adoption of views, in a way that, where there is real debate among experts, correctness is not. What should you do? In fields in which there is such a thing as expertise, and in which you are not yourself an expert, you should limit yourself to adopting reasonable views, or suspending judgement. How can you avoid adopting unreasonable views? See what the experts think, and limit yourself to views that are adopted by decent numbers of experts (or to suspension of judgement).
Correctness of views is an aspiration, at least in relation to views of a type that have any prospect of being classified as correct or incorrect, but in areas where there is real debate among experts, views do not carry labels, "correct" and "incorrect", so the concept of correctness does not regulate the conduct of non-experts directly. We can only adopt strategies that are likely to lead to the avoidance of incorrect views, like limiting ourselves to reasonable views, or making ourselves experts and studying the evidence ourselves.