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Tuesday, September 29, 2009

Identifying Potential Leaders Critical to Jury Selection

Leaders become forepersons and forepersons control deliberations

In the most recent issue of The Jury Expert, the excellent online journal of jury behavior, published by the American Society of Trial Consultants, Barbara Bushell has contributed a very nice piece on how "leaders" affect jury deliberations and verdict choice.

Barbara begins by identifying some of the common characteristics of jury leaders (high status jobs, more formal attire, perceived expertise, etc.) and then discusses the kinds of behaviors engaged in by such people that often get them chosen as jury forepersons. I won't spend much time on these points here, but I recommend that you read the article. Among other things, Barbara reviews (and cites) some of the important research articles from which we have learned so much about leadership on juries.

What I find particularly salient is how leaders can exercise control over jury deliberations, especially when handed the title of "foreperson." Barbara mentions several of the levers at the foreperson's disposal. A foreperson controls the floor, determining who can speak when. She calls for votes when she thinks the time is most appropriate -- perhaps when she suspects she has a majority of support. The foreperson often controls whether the deliberation will be evidence-driven or verdict-driven (something I have discussed previously in The Jury Box), with all of the attending consequences of the two modes. Barbara also cites several studies confirming the influence of a foreperson's private evaluation of compensatory damages on the final award chosen by the jury.

Not All Leaders are Created Equal

Barbara goes on to make a distinction between instrumental leaders and emotional leaders, something I hadn't really thought much about before. An instrumental leader is someone who is respected and/or looked up to for a particular skill or attribute regarded as important to the case. It might be someone who takes thorough notes, or someone who has served on several juries before. Of course, jurors with case-specific expertise are often perceived as instrumental leaders.

An emotional leader, however, is someone who helps the jurors get through the process. She might be the queen of positive reinforcement, or the first to recommend a compromise that everyone can live with. Such a leader is seen as a positive influence on the deliberations, but she may not be especially knowledgeable or astute.

I think this distinction between leadership types can be quite important. An instrumental leader is more likely to have an agenda. Her influence is likely to be unidirectional. On the other hand, an emotional leader is more likely to lead the jury towards moderation.

A couple more points about leaders

I would recommend that all of you read Barbara's article. You might even find yourself consulting some of the empirical studies directly. I want to take just a little time here to add a couple of items not covered in the Jury Expert piece.

The first is that leaders (especially instrumental ones) are also likely to be unyielding in their opinions about the correct verdict. As I have written about in a couple of my recent posts, juries rarely reach unanimous consensus, even in those cases where they render unanimous verdicts. This means that some jurors have compromised their true opinions about the case to vote with everyone else (conforming dissenters). The folks most likely to be leaders are not going to be those vote-switching jurors. This means that it is especially important during jury selection to figure out not only whether a prospective juror is likely to perceive your case sympathetically, but also whether she is a stick-to-her-guns leader type or a wishy-washy follower type. You have a limited number of peremptory challenges. Your case can probably survive a non-supporter who doesn't make waves. Save your challenges for the obvious leaders, whenever you are concerned about which way they will lead.

My final point has to do with the methods by which juries vote. The jury foreperson will almost certainly control this procedural item. Since a jury is not instructed on how to take votes, the foreperson really is free to conduct voting however she pleases. Will the foreperson call for a secret ballot? Perhaps she'll go around the table. Maybe she's left-handed and will go around the table in the other direction! A strong-willed foreperson might suggest a verdict and challenge anyone to disagree (equivalent to calling for unanimous consent). I have written previously about the strategic consequences of these various types of jury voting. Adding this concern to the others raised by Barbara Bushell in her article, it really is critical that likely leaders on the jury be on your side of the ledger.

Thursday, September 24, 2009

Medical Malpractice Verdicts only tiny contributor to health care costs

Oh, the humanity!!!!

Arghh!!!!! Ack!!! WTF, WTF, WTF?????!!!!
Well, that was me yesterday about this time. You see, I had written about 5 pages of really good stuff about medmal cases and healthcare. I was on a roll!!! Then, "poof" -- it was gone! All the text disappeared from the Blogger editing window. As I sat there in horror, the auto-save kicked in, rewriting everything I had written with a blank page. I frantically googled "retrieve old versions of blog post drafts," but to no avail. It was...... gone. Let this be a lesson to all of you out there with blogs. Methinks I will start writing my blog posts in a standard word processing program and then copying them over.

Back to our regularly scheduled programming.

The healthcare debate rages on. Well, people are raging on, but it hardly qualifies as a debate, given that more false "facts" are circulating around than true ones. This is why David Leonhardt's article in the New York Times this week was such a breath of fresh air. Mr. Leonhardt collected the results of several recent studies on the impact of medical malpractice lawsuits on healthcare costs, interviewed several of the researchers, and presented his findings in an organized, cogent manner. Freaky, eh?

Don't blame the plaintiffs (or even their lawyers)

The first important finding is that money spent on medmal litigation is a truly negligible drop in the proverbial bucket when it comes to the cost of healthcare. According toLeonhardt,
All told, jury awards, settlements and administrative costs — which, by definition, are similar to the combined cost of insurance — add up to less than $10 billion a year. This equals less than one-half of a percentage point of medical spending.
Since this figure includes all the administrative and litigation costs, the amount that insurers pay out to plaintiffs is even smaller.

So, if medmal litigation really isn't particularly costly, why does it receive such media attention? Why do the insurance companies and conservative commentators succeed in convincing many Americans that there is a crisis in medmal litigation? First of all, those interested parties work really hard to make that argument. Second, the rare enormous damage award against a doctor or hospital is considered newsworthy. By contrast, when an injured person gets nothing, or doesn't even bother to bring suit, there is really nothing to report.

Does this mean that behavior related to medical malpractice litigation is unrelated to increasing healthcare costs? Not so fast, amigo. Leonhardt also surveys studies of "defensive medicine" and finds that fears of being sued does seem to drive some doctors to "over-treat" patients. According to Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association —
approximately $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate [of the cost of wasteful treatment.]
So, litigation, or more precisely, concerns about litigation, can have second-order effects on health care spending.

It turns out then that FDR was right all along: "The only thing we have to fear is fear itself." The system is not paying much associated with medical malpractice lawsuits, but propaganda about it has generated enormous inefficiencies in care.

Does the system work?

This is not to say that the medical malpractice system isn't broken. It's just broken in exactly the other direction. The real problem is that injured patients are very substantially under-compensated for the harm they suffer at the hands of negligent medical professionals. According to Leonhardt's review of current research,
After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim. For every notorious error, there are dozens more. You never hear about these other cases.

The system is actually stacked against plaintiffs in these suits and it is only getting worse. Consider recent reforms enacted in a wide variety of states. Damage awards have been capped for pain and suffering. The application of punitive damage awards has been curtailed (even by the Supreme Court in a series of highly dubious opinions). Preliminary tribunals have been established, manned by healthcare workers -- if they reject the merits of your case, you need to post a bond to take it to court. This all makes it harder, more expensive and more time-consuming to bring a medmal lawsuit, regardless of the merits of the case. As such, a health care provider is very unlikely to be successfully sued for negligent care. So, if the litigation system is adversely affecting incentives in the healthcare arena, it is doing so in the direction of encouraging poor care.

So, there are problems with medical malpractice litigation in both directions. First, every once in a while, a plaintiff really does walk off with way more money than she deserves. This is fundamentally a problem with how jurors try to calculate damages (more about this below). In the other direction, it is way too hard for a legitimately injured patient to successfully sue for the compensation she deserves. All in all, the system encourages doctors to "treat like hell" without sufficient attention to the care with which that treatment is administered.

What is a lowly trial consultant to do?

All of this implicates some pretty heavy issues, well beyond the scope of my expertise. Within the relatively narrow band of jury trial procedures, however, I do have some sensible suggestions. So, here goes.

Increase juror comprehension of medical issues

Experts need to do a better job of teaching jurors about the medical procedures being litigated. Lawyers need to do a better job of making sure their experts are in a position to teach those lessons. Make sure your expert has appropriate visuals and that the expert knows how to use them. Practice, for Pete's sake! Even better, put your expert's explanations before a focus group and find out if they actually understand what the heck she's talking about. Don't be penny wise and pound foolish. There's real money at stake here. Do you really want to count of winning despite your expert's testimony?

The courts should take a more active role in insuring that jurors understand the medicine involved in these cases. If the area of medicine is tricky or esoteric, the court should ask to hear the experts' presentations in advance. If the judge is not satisfied that the jury will properly learn the material from the scheduled experts, the judge should send the parties back to try again. If necessary, the judge should bring in a neutral expert to bring the jury up-to-speed. The adversarial system be damned, we must first-and-foremost insure that jurors understand the fundamentals of the case.

Jurors should be strongly encouraged to ask questions of expert witnesses after their testimonies. So many medical malpractice cases turn on evaluating the competing opinions of opposing experts that it is critical that the jurors understand what those experts are talking about. If a juror wants an expert to explain something over again, that expert should do so. One variation on this theme would be to have both experts available for questions at the same time, after both have testified. Perhaps this would take place immediately before closing statements.

Make the law easy to understand

Jurors in these cases have enough bewildering terms and jargon to sort through on the medical side of the ledger, they shouldn't have to worry about deciphering their instructions, too. Jury instructions should be in plain English, pre-tested for ease of comprehension (and given to the jury in writing). The verdict slip should be in the form of interrogatories whenever possible, so that the series of tasks to be completed is self-evident. This will help avoid the conflation of negligence and causation that plagues many a jury deliberation is such cases. Finally, the jury should be given a list of medical terms with definitions to bring into the jury room.

Pay special attention to damages calculations

These trials should be bifurcated. This has two major advantages. First, it reduces the effects of injury seriousness on the likelihood of the defendant being found negligent. We know from decades of experimental research that this is a serious problem. Second, jurors have very little guidance when calculating damage awards. We know that "anchors" are extremely influential, with the most salient one being the ad damnum (plaintiff's requested award) where one is permitted. By bifurcating the trial, the ad damnum can be held back from the jury until after the liability determination has been made. Once a defendant has been held liable, the defense team no longer feels compelled to avoid talking to the jury about damages. The damages phase of the trial will be more of a "fair fight", with both sides providing arguments about how much harm the victim has suffered. This will provide the jury with much more information to use in calculating an appropriate damage award.

Every little bit helps

If these relatively straightforward reforms were implemented, the likely outcome would be that plaintiffs would prevail somewhat more often on liability, but inappropriately high damage awards would largely disappear. In fact, I think that the variance in damage awards would be greatly decreased. All of this would serve to increase the predictability of jury trials in medical malpractice cases, enabling parties to successfully settle cases more often. Such a result would represent a significant savings in court costs. Hopefully, it would also effect a modest improvement in the quality of care received by patients.

Wednesday, September 23, 2009

Criminal jury verdicts aren't really unanimous: Implications for your practice

The Worst Kept Secret in Criminal Law

We all knew it. Right? There are lots of reasons why individual jurors vote with their peers despite misgivings. They want to be liked. They want to go home. They are tired of being brow-beaten by the others. They don't want to disappoint the judge by hanging the jury. They just don't care. What we didn't know was just how often it happened -- until now.

The statistic previously cited in the debate about the desirability and/or practicality of unanimity was hung jury rates. You've read my discussion of hung jury rates in this very blog. The estimate of the national average is between 6% and 7% of criminal trials end in a hung jury. For felony trials in some California counties, the rate is over 20%. In Oregon, which uses 10-2 verdicts, the rate is below 1%. The problem, of course, is that the hung jury rate is a very poor proxy for what we really wanted to know: How often do juries remain "deadlocked" after completing deliberations? (where deadlock refers to a situation where a unanimous consensus about the right verdict has not been reached).

Nicole Waters of the National Center for State Courts and Valerie Hans of Cornell Law School have finally taken a step towards answering this important question. As part of the National Center for State Courts project on hung juries, the authors gave out post-trial surveys to almost 4000 jurors across 4 states and got back completed forms from almost 3500. This covered 367 trials. Among the questions they asked was: "If it were entirely up to you as a one-person jury, what would your verdict have been in this case?" It is important to appreciate that all of these verdicts were unanimous, in that all the jurors officially voted for it. Therefore, each "conforming dissenter" (Authors' term) is someone who voted for a verdict she thought was wrong.

The Non-Unanimous Bombshell

Remember that estimates of hung jury rates range around 7%. These are the cases with a dissenter who refused to conform. In the Waters and Hans study, 38% of juries contained at least one juror who disagreed with the general outcome of the case but voted for it anyway (conviction or acquittal). This is the most conservative measure of dissent. Juries are often faced with multiple charges against the defendant or a choice among lesser-included-offenses. So, it is possible that a defendant can be convicted, but not of the charge that a juror thought was most appropriate. Taking this into account, 54% of juries contained at least one juror who disagreed with the jury's verdict on at least one charge. That is, more than half of the juries contained at least one juror who voted insincerely. Nearly half of the juries (46%) contained at least one juror who disagreed with the verdict for the most serious charge facing the defendant.

According to the authors, only 82 of 351 dissenting jurors ultimately hung their juries. The article suggests that the average number of dissenters for cases resulting in a hung jury was just over 3. Therefore, we can tease out that about 25 of these cases resulted in a hung jury, or about 7% of the sample (consistent with previous estimates). By contrast, there were typically about 1.5 conforming dissenters on any case that returned a verdict (if there were any conforming dissenters at all). So, for every single hung jury, there were approximately 8 cases in which the purported unanimous verdict was a farce. When debating the merits of unanimity in the future, hopefully scholars and pundits can move beyond the misleading metric of hung jury rates and focus on the real problem at hand: How do we feel about a system that forces jurors to compromise their own values and judgments to conform to the majority will?

Making use of these results in your next case

While we wait for the Supreme Court and the state legislatures to figure out what to do with these revelations (probably nothing), you should consider them carefully as you prepare for future cases.

The first lesson is that very few criminal cases result in truly unanimous juries, even after prolonged deliberations. If you are a criminal defense attorney, you should always hammer away at the "personal responsibility" angle of jury service. Remind jurors that each has taken an oath to hear all the evidence and reach a conclusion based on her own wisdom and conscience. Emphasize that the Court would never want any juror to vote for a verdict she did not believe was correct. I would include language about being sympathetic to their plight: "Sometimes peer pressure can be strong. Sometimes it is just easier to go along with everyone else, to avoid conflict, to be cooperative. I recognize any sympathize with these instincts. But just remember that the Court has not tasked you with being accommodating or friendly or cooperative. The Court has tasked you with doing the right thing."

The authors of this study have examined some of the things that lead dissenters to hold their ground and hang the jury, rather than giving in to the majority. The first result, supported elsewhere, is that dissenters who favor acquittal are less likely to switch their votes than are dissenters who favor conviction. So, in a case with substantial support on both sides, an acquittal is much more likely than a conviction. A prosecutor needs to be certain that she will secure a very substantial majority for conviction in order to avoid a hung jury. By contrast, a defense attorney can secure an acquittal, even if a handful of jurors initially favor conviction.

Procedures matter. I have written in my column for Lawyers Weekly USA about the consequences of different methods of taking votes in the jury room. As I predicted in that piece, Waters and Hans discovered that juries that took secret ballots were more likely to have dissenters on them. The logic here is that a dissenter will worry less about sticking out like a sore thumb if she can register her objection in private. A secret ballot also allows potential dissenters to discover whether they have any allies on the jury. There might be three or four jurors who are reluctant to be the only one raising a hand in favor of the minority position. As a result, none of them do. A potential block of dissenters is never discovered. A secret ballot avoids this game of "chicken."

I have previously discussed in The Jury Box the importance of "straw poll timing" for the nature of jury deliberations. Juries that immediately take a vote find themselves embroiled in "verdict-driven" deliberations, while those who delay voting spend more time in the generally superior "evidence-driven" mode of deliberations. After a vote is taken, jurors tend to fall into camps, with spokespersons emerging for each. As a result, fewer jurors participate in discussion and jurors tend to get locked into their views. The Waters and Hans study shows a small but significant effect of early polling of jurors. When a jury takes an early vote, it is more likely that at least one juror will disagree with the final verdict. This is probably because an initial dissenter is more likely to feel "outvoted" than "convinced" if the deliberations devolve into a discussion of how to get everyone to vote the same way -- rather than getting everyone to agree.

If you have a case in which you are advocating what you fear will be the "unpopular" position (thought legally defensible), you would be advised to encourage jurors to vote by secret ballot. While you cannot instruct the jury to vote in a particular way, keep in mind that they have no explicit instructions about procedures. As such, a subtle suggestion in closing can be effective. "I want you all to keep an open mind. As you tear up those little slips of paper to cast your ballots, I hope that you will consider everything my client has said on the stand..."

It is much harder to find a way to suggest that jurors take an early straw poll. In fact, many judges now recommend to juries that they not be in a hurry to take a vote, first spending a fair amount of time just sorting through the evidence. Remember that an early vote is a two-edged sword. While it might cause your supporters to harden their positions a bit, it also reduces their abilities to sway the votes of jurors on the other side.

One important question is how volatile are juror evaluations of cases. That is, do they generally change their minds during a case? The answer to this question is a bit unclear. Over 62% of jurors indicated that they had changed their minds at least once during their case. But what does a juror mean when she says she "changed her mind"? Given that 40% of conforming dissenters admitted to changing their minds during deliberations, as compared to 25% of holdouts (those who hung their juries), I fear that many respondents equated changing their votes with changing their minds. The percentage of jurors who reported changing their minds at some stage prior to deliberations is closer to 25% (difficult to pinpoint from the reported data). Some of these respondents are undoubtedly reporting an earlier change as a compensatory mechanism for cognitive dissonance -- they don't want to admit to themselves that they were bullied into changing their votes during deliberations. That said, it would seem a conservative estimate that about one in five jurors really does change her evaluation of the case at some point in the proceedings.

The lesson here would seem to be that a case is not really won or loss during jury selection, as many cynics would argue. There are a substantial number of jurors who can be convinced to re-evaluate their initial positions during a trial. So, pay close attention to your trial technique. Make sure your case is coherent and clear. Finally, be sure to hit the high points in closing to reinforce the items that might have gotten jurors rethinking their views.

This brings us to the question of jury selection. It turns out not to be so critical to select a jury fully comprised of your supporters. These juries seem few and far-between. Most cases result in at least some form of disagreement among jurors that must be resolved during deliberations, either through a genuine exchange of ideas or, more likely, the conversion of conforming dissenters. This reinforces something that trial consultants like me have been trying to explain to clients for years. When evaluating a prospective juror, it is important to consider not only whether the juror is likely to be sympathetic to your case, but also what role the juror is likely to play on the jury. If the juror turns out to favor the other side, is she going to be a holdout or a conforming dissenter? I can't always tell if a prospective juror is going to be pro-prosecution or pro-defense, but I usually have a good sense about whether she is likely to be a leader or a follower, whether she seems more eager to please the court or those around her, whether she relishes the opportunity to be a contrarian. These characteristics are critical and must be explored during jury selection.

OK. This post is really, really long. That's because I think these results are really, really important. Among other things, they emphasize the importance of relying on data, not conjecture. Those who presumed that unanimous verdicts were produced by unanimous juries are just dead wrong. What else might they be wrong about? Do you really want to rely on conjecture the next time you need to pick a jury, or prepare a witness, or select a trial theme? There is no substitute for good research. OK, there's my quick sales pitch.

Please comment on this post! Let's see if we can stir up some trouble.

Saturday, September 19, 2009

Bowen v. Oregon: Why non-unanimous jury verdicts are Constitutional in criminal cases

A Rejoinder to the Amicus Brief filed by Samuel Gross, et al.

In Bowen v. Oregon, the Supreme Court of the United States is asked to reconsider its decisions in Johnson v. Louisiana and Apodaca v. Oregon (companion cases from 1972), finding that non-unanimous jury verdicts in criminal cases are consistent with the 6th Amendment of the Constitution. Some of the most respected scholars in the field of jury behavior -- political scientists, law professors, psychologists, sociologists and economists -- have banded together to submit an Amicus Curiae (friend of the Court) brief in support of the petitioner. That is, they all want unanimous verdicts to be Constitutionally mandated.

I always teach the Apodaca and Johnson cases in my class on the civil and criminal procedures of jury trials because the opinions are wonderful examples of arguments based on conjecture without empirical foundation. The majority argues that there is no evidence to suggest that jurors won't deliberate responsibly, regardless of the decision rule. The minority contends that there is no guarantee that the jurors will deliberate responsibly without unanimity. What we are left with is a disagreement about human nature, with neither side supported by any data. In 1972, the "optimists" won by a nose, with a jumble of separate opinions spread over two cases.

Gross and his colleagues recognize explicitly in their brief that the Court lacked empirical data in 1972, but point out that there have been many empirical studies on jury deliberation and decision-making over the past 37 years. As such, we no longer need to rely on conjecture. Let the data speak for themselves.

I hate the movie, "Twelve Angry Men." As drama, it is pretty compelling, but as a lesson in deliberation and jury behavior, it is the pits. My students all rally around the idea that unanimity is critical because otherwise Henry Fonda never would have been able to save that young man's life! It is truly ironic, then, that I find myself as a minority of one, disputing the conclusions of more than a dozen esteemed colleagues, some of whom are good friends. The problem is: they're just plain wrong.

They are, of course, correct that there has been a lot of empirical research on jury behavior over the past few decades. Much of the best work has been conducted by the very scholars who have signed the brief. Unfortunately, the data just don't tell us the story these folks wish they did. I will outline a few things here, but a complete rebuttal can be found in my 2000 article, co-authored with Warren Schwartz, published in the USC Interdisciplinary Law Journal, entitled "And So Say Some of Us...: What to do when jurors disagree." You can access the full article here.

The Rest of the World

We inherited our common law system from England, as did Canada and Australia. It is important to realize that England has been using a 10-2 decision rule from criminal trial since before the Apodaca and Johnson decisions. There has been no crisis of confidence in jury verdicts in England. No-one is crying out for the return of unanimity. In fact, with the hung jury rate rising to 0.7% (That's 7 hung juries for every 1000 cases), there have been calls to relax the decision rule even further. The states of Australia use a variety of decision rules and the couple retaining unanimity have seen recent public clamor to dump it in favor of 10 - 2 or 9 - 3.

Most other countries in the world use some form of "lay judges" for certain kinds of criminal cases. These folks usually sit in judgment with a small group of professional judges. None of these countries employ a unanimity rule. They usually employ some form of qualified majority that prevents the judges from "out-voting" the laymen. Japan just implemented jury trials for the first time since the Second World War. They use mixed panels (3 judges and 6 laymen) with a simple majority rule.

It is also worth pointing out that the courts that evaluate jury verdicts for "miscarriages of justice" and other decision-making infirmities make their decisions by simple majority rule. Military courts martial are conducted with a 2/3 majority rule. Similarly, when the Senate acts as a jury in impeachment proceedings, it uses a 2/3 majority rule. Let's not forget that George Bush won the 2000 Presidential election by a vote of 6 - 3. In light of the thousands of soldiers and civilians who have lost their lives as a result, it is hard to imagine any judicial decision with larger implications.

Does deliberation suffer without unanimity?

In light of the exceptionalism of the American unanimity rule, one might sensibly wonder,"What is everyone so worked up about?" Well, criminal defense attorneys are clearly concerned that conviction rates will go up. But what about the academics who signed this amicus brief? The rallying point for this group is that deliberations are superior when a unanimity rule is used than when a majority or supermajority rule is used.

One of the primary forms of evidence for this proposition is the post-study participant satisfaction survey. Mock jurors are asked how "satisfied" they are with their experience and how "confident" they are in the verdict chosen by their panel. Unsurprisingly, jurors in the unanimity setting express greater satisfaction and verdict confidence. Cognitive dissonance can be a wonderful thing. Since all of the jurors in the unanimity setting voted for the same verdict, by definition, they are, of course, inclined to report satisfaction with the result. To admit otherwise would be to impugn their own decisions to vote with everyone else. By contrast, a juror who was outvoted can prop up her own self-image by claiming that the deliberative process must have been flawed in some way. Such opinions can only be expressed in the non-unanimous setting. Hence, regardless of the objective quality of both the deliberations and resulting verdict, we would expect to see the differences in self-reporting that are regularly reported.

Another metric that is often summoned to support unanimity is the length of time that a mock jury spends deliberating. In most studies, juries using unanimity deliberate for longer than do juries using some form of supermajority rule. But this begs the question: "Is all deliberation good deliberation?" Imagine a twelve person jury that spends two hours carefully reviewing all the evidence and testimony, establishing a timeline they can all agree to, and coming to a mutual understanding of what their instructions are asking them to decide. They then take a vote and discover that 10 jurors have been convinced of the defendant's guilt beyond a reasonable doubt and two have not. The two "holdouts" are somewhat more mistrustful of the police officer's testimony and seem to have a somewhat more demanding conception of reasonable doubt. So far, everyone on the jury has behaved admirably. Information has been shared, opinions expressed and conclusions drawn after careful consideration. In order to reach a verdict, however, the 10 majority jurors will have to convince the other two to change their votes. Through browbeating, exasperation and sometimes personal attacks, such a majority will usually get the holdouts to acquiesce. This process usually takes a while, so "deliberation" has taken longer. But what has been accomplished? Two jurors have been forced to vote against their consciences, civility has been sacrificed and the public has been lied to. Is this "better" than letting the jury hand down a 10-2 verdict?

Are unanimous verdicts really unanimous?

One of the studies often used to support the "unanimous deliberations are superior" hypothesis is by Nemeth (cited in the amicus brief). He compared six-person juries operating under unanimity with those operating under a 4-2 rule (He carefully constructed the juries so that half of each sample started with a 4-2 majority for acquittal and the other half started 4-2 for conviction). What no-one (but me) seems to focus on is that the self-reporting of participants after the study indicates that virtually none of the unanimous verdicts were the result of actual unanimous consensus among the jurors. Consider the table I made from Nemeth's data.

To underscore the important point that a unanimous verdict does not necessarily reflect unanimous consensus, we turn to a very recent study conducted by Valerie Hans, one of the signers of the amicus brief. In her article with Nicole Waters, entitled "A Jury of One: Opinion Formation, Conformity and Dissent on Juries," ( 6 (3) Journal of Empirical Legal Studies, 513 (2009)), the authors reveal that roughly one-third of jurors in actual criminal cases admitted that they actually disagreed with the verdict they had voted for. That is, on average, a unanimous jury verdict in a criminal case was actually only 8 - 4.

Finally, let's remember that, every time a defendant is retried after a hung jury, the resulting verdict has previously been rejected by at least one juror who heard the case. Otherwise, there wouldn't have been a hung jury in the first place. Who's to say that the jury that could reach consensus was more representative, more attentive, smarter or more deliberative than the one that couldn't reach consensus. We also know from the data outlined above that the second jury might just have had jurors more willing to compromise their principles to generate a unanimous verdict.

This begs another obvious question: "If unanimity is a big fat lie, why should anyone want to preserve it?" Perhaps the general public wants to be lied to in this way. Perhaps there is comfort in not considering the implications of sending people to prison (or worse) despite reservations of some jurors. Maybe we don't really want to know how the sausage is made. Even so, it is hard to imagine this as a legitimate rationale for the scholars who penned the amicus brief in support of Bowen's position.

The Future of Unanimity

Unanimity in criminal jury verdicts is what polite lawyers refer to as a "legal fiction." As such, I don't see it as being worth preserving. I would much rather have majority verdicts, handed down by jurors who are strongly encouraged to stick to their principles and vote their consciences. As I have written in both scholarly papers and elsewhere, the elimination of the unanimity requirement would also support the elimination of peremptory challenges, a practice that disenfranchises many Americans from the jury system. It is interesting to note that many of the scholars who signed the amicus brief in support of Bowen's case have also called for the curtailing of peremptory challenges. Eliminating peremptory challenges would create more fully deliberative juries because they would better represent a fair cross section of the community. More voices would be heard. In addition, such a reform would dispense with the need for the ruling in Batson v. Kentucky and its progeny, prohibiting peremptory strikes made along racial lines. Batson, as Marshall predicted in his concurrence more than 20 years ago, has been largely ineffective at reducing overt and subconscious bias in the exercise of peremptory challenges. Non-unanimous verdicts, coupled with truly randomly selected juries, would eliminate this problem once and for all.

Friday, September 18, 2009

Future Podcast on Jury Behavior and Jury Trials

I am in discussions with a major legal podcast producer to host a regular podcast on juries and jury trials. I would review the latest developments in jury research, discuss possible reforms to the jury system, and highlight the interesting implications of ongoing and recent jury trials. I would try to have at least one guest on each show and listener input will be very important.

Before I undertake this endeavor, I want to get a sense of how podcasts are used by litigators and others in the legal profession. To this end, I have posted a poll about podcast listening habits on LinkedIn. I would very much appreciate it if anyone reading this post would click the link and complete the quick poll (LinkedIn membership is NOT required). You can view the results so far after registering your response.

LinkedIn Podcast Poll (<-- Click me!)

Of course, if you have suggestions about the format of such a podcast, I am all ears. Feel free to email me, or leave a comment below, to tell me what you think makes for a compelling podcast. What makes you yawn? What makes you just shut the damn thing off? (We don't want that!) If there is a particular podcast that you really like, let me know so I can check it out.