Comparing Legal Factfinders: Real and Mock, Amateur and Professional

The excellent articles by Brian Bornstein and Sean McCabe1 and Jennifer Robbennolt2 in this Symposium document the current state of two longstanding debates in jury scholarship—one on the external validity of mock jury experiments, the other on the relative fact-finding ability of juries versus judges. Over a decade ago, I examined the state of evidence in each debate.3 With respect to what Bornstein and McCabe refer to as “consequentiality”—the question of whether decisions result in real outcomes4—in 1989 I noted that “[e]xperiments comparing mock jurors with subjects who thought they were actually trying a case have been inconclusive; different studies have found mock jurors’ verdicts to be more lenient, less lenient, and no different from those of ‘actual’ jurors.”5 Bornstein and McCabe note with some frustration that there is no new evidence to clarify these results6—indeed, no studies have examined the issue since 1986.7 In stark contrast, Robbennolt shows that there has been considerable empirical progress on the second issue since 1993,8 when I was able to identify only two direct experimental comparisons of judge and juror judgmental performance.9 Perhaps framing these questions as “debates” is misleading, since in neither case can we expect empirical research to provide an unequivocal, dichotomous verdict like “mock jury research is valid” or “judges are superior.” Both issues involve inevitable trade-offs among goals— epistemological goals in the first case and legal policy goals in the second.