Yet whatever the temperament of the jury and its legal insight, we may sharply separate its ideas of deserved punishment from that far more important aspect of its function, the weighing of evidence. The juries may be whimsical in their decisions, they may be lenient in their acquittals or over-rigid in their verdicts of guilty, but that is quite in keeping with the democratic spirit of the institution. The Teutonic nations do not want the abstract law of the scholarly judges; they want the pulse-beat of life throbbing in the court decisions, and what may seem a wilful ignoring of the law of the lawyers may be a heartfelt expression of the popular sentiment. Better to have some statutes riddled by illogical verdicts than legal decisions severed from the sense of justice which is living in the soul of the nation.
But while a rush into prejudice or a hasty overriding of law may draw attention to some exceptional verdicts, in the overwhelming mass of jury decisions nothing is aimed at but a real clearing up of the facts. The evidence is submitted, and while the lawyers may have wrangled as to what is evidence and what is not, and while they may have tried by their presentation of the witnesses on their own side and by their cross-examinations to throw light on some parts of the evidence and shadows on some others, the jurymen are simply to seek the truth when all the evidence has been submitted. And mostly they do not forget that they will live up to their duty best the more they suppress in their own hearts the question whether they like or dislike the truth that comes to light. Whoever weighs the social significance of the jury system ought not to be guided by the few stray cases in which the emotional response obscures the truth, but all praise and blame and every scrutiny of the institution ought to be confined essentially to the ability of the jurymen to live up to their chief responsibility, the sober finding of the true facts.
It cannot be denied that much criticism has been directed against the whole jury system in America and Europe by legal scholars, as well as by laymen, on account of the prevailing doubt whether the traditional form is really furthering the clearing-up of the hidden truth. Where the evidence is so perfectly clear that every one by himself alone feels from the start exactly like all the others, the coöperation of the twelve men cannot do any harm; but it cannot do any particular good, either. Such cases do not demand the special interest of the social reformer. His doubts and fears come up only when difference of opinion exists, and the discussion and the repeated votes overcome the divergence of opinion. The skeptics claim that the system as such may easily be instrumental for suppressing the truth and bringing the erroneous opinion to victory. In earlier times a frequent objection was that lack of higher education made men unfit to weigh correctly the facts in a complicated situation, but for a long while this kind of arguing has been given up. The famous French lawyer who, whenever he had a weak case, made use of his right to challenge jurymen by systematically excluding all persons of higher education, certainly blundered in this respect, according to the views of to-day. Those best informed within and without the legal science agree that the verdicts of straightforward people with public-school education are in the long run neither better nor worse than those of men with college schooling or professional training. A jury of artisans and farmers understands and looks into a mass of neutral material as well as a jury of bankers and doctors, or at least their final verdict has an equal chance to hit the truth.
But the critics say that it is not the lack of general or logical training of the individual person which obstructs the path of justice. The trouble lies rather in the mutual influence of the twelve men. The more persons work together, the less, they say, every single man can reach his highest level. They become a mass, with mass consciousness, a kind of crowd in which each one becomes oversuggestible. Each one thinks less reliably, less intelligently, and less impartially than he would by himself alone. We know how men in a crowd do indeed lose some of the best features of their individuality. A crowd may be thrown into a panic, may rush into any foolish, violent action, may lynch and plunder, or a crowd may be stirred to a pitch of enthusiasm, may be roused to heroic deeds or to wonderful generosity; but whether the outcome be wretched or splendid, in any case it is the product of persons who have been entirely changed. In the midst of the panic or in the midst of the heroic enthusiasm, no one has kept his own characteristic mental features. The individual no longer judges for himself; he is carried away, his own heart reverberates, with the feelings of the whole crowd. The mass consciousness is not an adding-up, a mere summation, of the individual minds, but the creation of something entirely new. Such a crowd may be pushed into any roads; chance leaders may use or misuse its increased suggestibility for any ends. No one can foresee whether this heaping up of men will bring good or bad results. Certainly the individual level of the crowd will always be below the level of its best members. And is not a jury necessarily such a group with a mass consciousness of its own? Every individual member is melted into the total, has lost his independent power of judging, and has become influenced through his heightened suggestibility and social feeling by any chance pressure which may push toward error as often as toward truth.
But if such arguments are brought into play, it is evident that it is no longer a legal question, but a psychological one. The psychologist alone deals scientifically with the problem of mutual mental influence and with the reënforcing or awakening of mental energies by social coöperation. He should accordingly investigate the question with his own methods, and deal with it from the point of view of the scientist. This means he is not simply to form an opinion from general value impressions and to talk about it as about a question of politics, where any man may have his personal idea or fancy, but to discover the facts by definite experiments. The modern student of mental life is accustomed to the methods of the laboratory. He wants to see exact figures, by which the essential facts come into sharp relief. But let us understand clearly what such an experiment means. When the psychologist goes to work in his laboratory, his aim is to study those thoughts and emotions and feelings and deeds which move our social world. But his aim is not simply to imitate or to repeat the social scenes of the community. He must simplify them and bring them down to the most elementary situations, in which only the characteristic mental actions are left.
Is this not the way in which the experimenters proceed in every field? The physicist or the chemist does not study the great events as they occur in nature on a large scale and with bewildering complexity of conditions, but he brings down every special fact which interests him to a neat, miniature copy on his laboratory table. There he mixes a few chemical solutions in his retorts and his test-tubes, or produces the rays or sparks or currents with his subtle laboratory instruments, and he feels sure that whatever he finds there must hold true everywhere in the gigantic universe. If the waters move in a certain way in his little tank on his table, he knows that they must move according to the same laws in the midst of the ocean. In this spirit the psychologist arranges his experiments, too. He does not carry them on in the turmoil of social life, but prepares artificial situations in which the persons will show the laws of mental behavior. An experiment on memory or attention or imagination or feeling may bring out in a few minutes mental facts which the ordinary observer would discover only if he were to watch the behavior and life attitudes of the man for years. Everything depends upon the degree with which the characteristic mental states are brought into play under experimental conditions. The great advantage of the experimental method here is, as everywhere, that everything can be varied and changed at will and that the conditions and the effects can be exactly measured.
If we apply these principles to the question of the jury, the task is clear. We want to find out whether the coöperation, the discussion, and the repeated voting of a number of persons is helping or hindering them in the effort to judge correctly upon a complex situation. We must therefore artificially create a situation which brings into action the judgment, the discussion, and the vote; but if we are loyal to the idea of experimenting, we must keep the experiment free from all those features of a real jury deliberation that have nothing to do with the mental action itself. Moreover, it is evident that the situations to be judged must allow a definite knowledge as to the objective truth. The experimenter must know which verdict of his voters corresponds to the real facts. Secondly, the situation must be difficult, in order that a real doubt may prevail. If all the voters were on one side from the start, no discussion would be needed. Thirdly, it must be a rather complex situation, in order that the judgment may be influenced by a number of motives. Only in this case will it be possible for the discussion to point out factors which the other party may have overlooked, thus giving a chance for changes of mind. All these demands must be fulfilled if the experiment is really to picture the jury function. But it would be utterly superfluous, and would make the exact measurement impossible, if the material on which the judgment is to be based were of the same kind of which the evidence in the court-room is composed. The trial by jury in an actual criminal case may involve many picturesque and interesting details, but the mental act of judging is no different when the most trivial objects are chosen.
I settled on the following simple device. I used sheets of dark-gray cardboard. On each were pasted white paper dots of different form and in an irregular order. Each card had between ninety-two and a hundred and eight such white dots of different sizes. The task was to compare the number of spots on one card with the number of spots on another. Perhaps I held up a card with a hundred and four dots, and below it one with ninety-eight. Then the subjects of the experiment had to decide whether the upper card had more dots or fewer dots than the lower one. I made the first set of experiments with eighteen Harvard students. I took more than the twelve men who form a jury in order to reinforce the possible effect, but did not wish to exceed the number greatly, so that the character of the discussion might be similar to that in a jury. A much larger number would have made the discussion too formal or too unruly. The eighteen men sat about a long table, and were first allowed to look for half a minute at the two big cards, each forming his judgment independently. Then at a signal every one had to write down whether the number of dots on the upper card was larger, equal, or smaller. Immediately after that they had to indicate by a show of hands how many had voted for each of the three possibilities. After that an excited discussion began, three or four men speaking at the same time.
After five minutes of talking, the vote was repeated, again at first being written and then being taken by a show of hands. A second five-minute exchange of opinion followed, with a new effort to convince the dissenters. After this period the third and last vote was taken. This experiment was carried out with a variety of cards with smaller or larger difference of numbers, but always with a difference enough to allow an uncertainty of judgment. Here, indeed, we had repeated all the essential conditions of the jury vote and discussion, and the mental state was characteristically similar to that of the jurymen.
The very full accounts which the participants in the experiment wrote down the following day indicated clearly that we had a true imitation of the mental process despite the striking simplicity of our conditions. One man, for instance, described his inner experience as follows: