We have attempted in this article to "begin over again and concentrate" by taking a fresh look at the interplay between guilt and jury verdicts. Somewhat to our surprise, we discovered that guilt is undefinable without reference to the larger society. We also discovered that our risk-of-error experiments implicated the principle of double jeopardy. When we began this thought experiment, we intended only to test the risk of error in various jury configurations and verdicts. We ended, however, by articulating a more fundamental principle: guilt is nothing more, and nothing less, than the judgment of society. Any verdict that accurately represents how society would have voted is valid, and any acquittal, even if de facto, brings the bar of the Double Jeopardy Clause into play.
George C. Thomas III & Barry S. Pollack,
Rethinking Guild, Juries, and Jeopardy,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol91/iss1/2