The Hung Jury: American Exceptionalism Strikes Again

Hung Juries: Judicial Flukes or Systemic Problem?

The American juridical system is one of the few in the world that allows for the possibility of a hung jury. All of the "mixed" systems of Europe and South America, wherein a group of laypersons deliberates with a small group of judges, use decision rules that preclude hung juries. A supermajority might be required for a conviction (like 8 votes out of 13), but a failure to secure that many guilty votes always results in an acquittal.

Even those countries that inherited the British Common Law system have largely moved away from voting procedures that encourage hung juries. England abandoned unanimity in 1974, allowing 10 votes out of 12 to determine a verdict. most Australian states have adopted some form of supermajority rule. Only the United States, and our neighbor to the north, Canada, insist on unanimity in jury verdicts.

As such, the hung jury is a fairly uniquely American phenomenon. Estimates of the frequency of hung juries vary quite a lot. Most scholars use an estimate of about 7% of criminal trials. The number is higher for felony trials and higher still for felony trials in ethnically diverse communities, such as New York, Chicago or Los Angeles. Recent estimates for felony trials in Los Angeles put the hung jury rate at over 20%.

An understudied phenomenon

There has not been a great deal of scholarly attention paid to the hung jury. Occasionally, some group or another will try to measure the hung jury rate in some locality or another. It is difficult to get a handle on why some juries hang and others do not because jurors are not obligated to discuss their deliberations with the public.

As followers of The Jury Box Blog know, I am extremely interested in consequences of maintaining the unanimity requirement in criminal trials in the United States. We allegedly celebrate our diversity of opinions and values and yet we insist that everyone on a jury reach the same conclusions.

As one small step in the direction of understanding the hung jury situation in the united States, I have started a new Twitter feed, called HungJuries, dedicated to exploring the frequency of American hung juries, as well as the causes and consequences of juries failing to reach unanimous consensus.

I am hoping that you will find the news articles and scholarly pieces I link to from this account of interest for your own practice. Please feel free to retweet anything you see there and tell your friends about the new HungJuries twitter feed.