# A Philosophical Essay on Probabilities/Chapter 13

CHAPTER XIII.
CONCERNING THE PROBABILITY OF THE JUDGMENTS OF TRIBUNALS.
Analysis confirms what simple common sense teaches us, namely, the correctness of judgments is as much more probable as the judges are more numerous and more enlightened. It is important then that tribunals of appeal should fulfil these two conditions. The tribunals of the first instance standing in closer relation to those amenable offer to the higher tribunal the advantage of a first judgment already probable, and with which the latter often agree, be it in compromising or in desisting from their claims. But if the uncertainty of the matter in litigation and its importance determine a litigant to have recourse to the tribunal of appeals, he ought to find in a greater probability of obtaining an equitable judgment greater security for his fortune and the compensation for the trouble and expense which a new procedure entails. It is this which had no place in the institution of the reciprocal appeal of the tribunals of the district, an institution thereby very prejudicial to the interest of the citizens. It would be perhaps proper and conformable to the calculus of ​probabilities to demand a majority of at least two votes in a tribunal of appeal in order to invalidate the sentence of the lower tribunal. One would obtain this result if the tribunal of appeal being composed of an even number of judges the sentence should stand in the case of the equality of votes.
I shall consider particularly the judgments in criminal matters.
In order to condemn an accused it is necessary without doubt that the judges should have the strongest proofs of his offence. But a moral proof is never more than a probability; and experience has only too clearly shown the errors of which criminal judgments, even those which appear to be the most just, are still susceptible. The impossibility of amending these errors is the strongest argument of the philosophers who have wished to proscribe the penalty of death. We should then be obliged to abstain from judging if it were necessary for us to await mathematical evidence. But the judgment is required by the danger which would result from the impunity of the crime. This judgment reduces itself, if I am not mistaken, to the solution of the following question: Has the proof of the offence of the accused the high degree of probability necessary so that the citizens would have less reason to doubt the errors of the tribunals, if he is innocent and condemned, than they would have to fear his new crimes and those of the unfortunate ones who would be emboldened by the example of his impunity if he were guilty and acquitted? The solution of this question depends upon several elements very difficult to ascertain. Such is the eminence of danger which would ​threaten society if the criminal accused should remain unpunished. Sometimes this danger is so great that the magistrate sees himself constrained to waive forms wisely established for the protection of innocence. But that which renders almost always this question insoluble is the impossibility of appreciating exactly the probability of the offence and of fixing that which is necessary for the condemnation of the accused. Each judge in this respect is forced to rely upon his own judgment. He forms his opinion by comparing the divers testimonies and the circumstances by which the offence is accompanied, to the results of his reflections and his experiences, and in this respect a long habitude of interrogating and judging accused persons gives great advantage in ascertaining the truth in the midst of indices often contradictory.
The preceding question depends again upon the care taken in the investigation of the offence; for one demands naturally much stronger proofs for imposing the death penalty than for inflicting a detention of some months. It is a reason for proportioning the care to the offence, great care taken with an unimportant case inevitably clearing many guilty ones. A law which gives to the judges power of moderating the care in the case of attenuating circumstances is then conformable at the same time to principles of humanity towards the culprit, and to the interest of society. The product of the probability of the offence by its gravity being the measure of the danger to which the acquittal of the accused can expose society, one would think that the care taken ought to depend upon this probability. This is done indirectly in the tribunals where one ​retains for some time the accused against whom there are very strong proofs, but insufficient to condemn him; in the hope of acquiring new light one does not place him immediately in the midst of his fellow citizens, who would not see him again without great alarm. But the arbitrariness of this measure and the abuse which one can make of it have caused its rejection in the countries where one attaches the greatest price to individual liberty.
Now what is the probability that the decision of a tribunal which can condemn only by a given majority will be just, that is to say, conform to the true solution of the question proposed above? This important problem well solved will give the means of comparing among themselves the different tribunals. The majority of a single vote in a numerous tribunal indicates that the affair in question is very doubtful; the condemnation of the accused would be then contrary to the principles of humanity, protectors of innocence. The unanimity of the judges would give very strong probability of a just decision; but in abstaining from it too many guilty ones would be acquitted. It is necessary, then, either to limit the number of judges, if one wishes that they should be unanimous, or increase the majority necessary for a condemnation, when the tribunal becomes more numerous. I shall attempt to apply calculus to this subject, being persuaded that it is always the best guide when one bases it upon the data which common sense suggests to us.
The probability that the opinion of each judge is just enters as the principal element into this calculation. If in a tribunal of a thousand and one judges, five ​hundred and one are of one opinion, and five hundred are of the contrary opinion, it is apparent that the probability of the opinion of each judge surpasses very little 1/2; for supposing it obviously very large a single vote of difference would be an improbable event. But if the judges are unanimous, this indicates in the proofs that degree of strength which entails conviction; the probability of the opinion of each judge is then very near unity or certainty, provided that the passions or the ordinary prejudices do not affect at the same time all the judges. Outside of these cases the ratio of the votes for or against the accused ought alone to determine this probability. I suppose thus that it can vary from 1/2 to unity, but that it cannot be below 1/2. If that were not the case the decision of the tribunal would be as insignificant as chance; it has value only in so far as the opinion of the judge has a greater tendency to truth than to error. It is thus by the ratio of the numbers of votes favorable, and contrary to the accused, that I determine the probability of this opinion.
These data suffice to ascertain the general expression of the probability that the decision of a tribunal judging by a known majority is just. In the tribunals where of eight judges five votes would be necessary for the condemnation of an accused, the probability of the error to be feared in the justice of the decision would surpass 1/4. If the tribunal should be reduced to six members who are able to condemn only by a plurality of four votes, the probability of the error to be feared would be below 1/4. There would be then for the accused an advantage in this reduction of the tribunal. In both cases the majority required is the same and is ​equal to two. Thus the majority remaining constant, the probability of error increases with the number of judges; this is general whatever may be the majority required, provided that it remains the same. Taking, then, for the rule the arithmetical ratio, the accused finds himself in a position less and less advantageous in the measure that the tribunal becomes more numerous. One might believe that in a tribunal where one might demand a majority of twelve votes, whatever the number of the judges was, the votes of the minority, neutralizing an equal number of votes of the majority, the twelve remaining votes would represent the unanimity of a jury of twelve members, required in England for the condemnation of an accused; but one would be greatly mistaken. Common sense shows that there is a difference between the decision of a tribunal of two hundred and twelve judges, of which one hundred and twelve condemn the accused, while one hundred acquit him, and that of a tribunal of twelve judges unanimous for condemnation. In the first case the hundred votes favorable to the accused warrant in thinking that the proofs are far from attaining the degree of strength which entails conviction; in the second case, the unanimity of the judges leads to the belief that they have attained this degree. But simple common sense does not suffice at all to appreciate the extreme difference of the probability of error in the two cases. It is necessary then to recur to calculus, and one finds nearly one fifth for the probability of error in the first case, and only 1/8192 for this probability in the second case, a probability which is not one thousandth of the first. It is a confirmation ​of the principle that the arithmetical ratio is unfavorable to the accused when the number of judges increases. On the contrary, if one takes for a rule the geometrical ratio, the probability of the error of the decision diminishes when the number of judges increases. For example, in the tribunals which can condemn only by a plurality of two thirds of the votes, the probability of the error to be feared is nearly one fourth if the number of the judges'is six; it is below if this number is increased to twelve. Thus one ought to be governed neither by the arithmetical ratio nor by the geometrical ratio if one wishes that the probability of error should never be above nor below a given fraction.
But what fraction ought to be determined upon? It is here that the arbitrariness begins and the tribunals offer in this regard the greatest variety. In the special tribunals where five of the eight votes suffice for the condemnation of the accused, the probability of the error to be feared in regard to justice of the judgment is 65/256, or more than 1/4. The magnitude of this fraction is dreadful; but that which ought to reassure us a little is the consideration that most frequently the judge who acquits an accused does not regard him as innocent; he pronounces solely that it is not attained by proofs sufficient for condemnation. One is especially reassured by the pity which nature has placed in the heart of man and which disposes the mind to see only with reluctance a culprit in the accused submitted to his judgment. This sentiment, more active in those who have not the habitude of criminal judgments, compensates for the inconveniences attached to the inexperience of the jurors. In a jury of twelve members, if the plurality ​demanded for the condemnation is eight of twelve votes, the probability of the error to be feared 1093/8192, or a little more than one eighth, it is almost 1/22 if this plurality consists of nine votes. In the case of unanimity the probability of the error to be feared is 1/8192, that is to say, more than a thousand times less than in our juries. This supposes that the unanimity results only from proofs favorable or contrary to the accused; but motives that are entirely strange, ought oftentimes to concur in producing it, when it is imposed upon the jury as a necessary condition of its judgment. Then its decisions depending upon the temperament, the character, the habits of the jurors, and the circumstances in which they are placed, they are sometimes contrary to the decisions which the majority of the jury would have made if they had listened only to the proofs; this seems to me to be a great fault of this manner of judging.
The probability of the decision is too feeble in our juries, and I think that in order to give a sufficient guarantee to innocence, one ought to demand at least, a plurality of nine votes in twelve.