The Dissenters Dilemma: Holdout jurors face hostility and threats

One holdout's harrowing tale

JoAnn Chiakulas was a juror on the trial of former Illinois Governor Rod Blagojevich, charged with many counts of corruption, stemming, in part, from his alleged attempt to sell President Obama's former Senate seat for cash and political considerations. In the end, the jury hung with respect to 24 of 25 counts, finding him guilty only of lying to federal agents.

Despite an apparent agreement among the jurors to simply return home after the trial, eschewing interviews with the press, Ms. Chiakulas found herself "outed" as the holdout juror almost immediately. Forewarned that her house had been surrounded by press, she sought refuge at her daughters house and tried to ignore the incessant ringing of her cell phone. In an interview with Ira Glass on PRI's This American Life, she discusses at length the reasoning behind her position on Blagojevich's guilt, as well as the environment of hostility to which she was subjected by the other jurors. The interview is fascinating and well worth a listen.

Interpretation, Intensity and Isolation

According to Ms. Chiakulas, she was not the only juror to have doubts about whether the state had made its case against Blagojevich. Since no money or favors ever changed hands, all of the evidence against the Governor was circumstantial and open to interpretation. Among the open questions,

What exactly was he asking for?

Was this kind of posturing and horse-trading common among politicians?

Given how emotional and irrational the Governor seemed to be, was he just "talking trash?" 

Again, according to Ms. Chiakulas, the vast majority of the jury had decided by the end of the trial that Blagojevich was guilty of pretty much everything he had been charged with, making deliberations a mere formality. In addition, the jurors discussed openly the pressure they felt from the public to punish Blagojevich for his transgressions. It was, then, through this "fait accompli" lens that most of the jurors viewed Ms. Chiakulas' reluctance to convict.

While the jurors were apparently cordial enough at the beginning, things turned sour when it became clear that Ms. Chiakulas wasn't going to "come around." Pretty soon, she felt as if she were under siege. Pleasant conversation turned to insults and accusations. Her rationality and emotional soundness were questioned, as were her motives. Some of the jurors sent a note to the judge, asking that she be removed from the jury, on the grounds that she wasn't deliberating in "good faith."

When chiding, challenging and pleading failed to change her mind, certain jurors turned to intimidation in order to change her vote. Ms. Chiakulas tells one rather haunting story of a juror who had been sitting at another part of the table for several days. Finally fed up with Ms. Chiakulas' recalcitrance, this juror moved to directly opposite her and spent hours intently glaring directly at her.

Most holdouts buckle

Regardless of whether you agree with the way in which Ms. Chiakulas interpreted the evidence in this case, you have to applaud her resolve under such withering scrutiny. She was the target of intense hostility and bullying, without any way to escape, and she stuck to her guns. Most of us would not hold up so well.

Don't flatter yourself in thinking that you would hold out under such attacks. The data say otherwise. As I reported in a Jury Box Blog posting last year, Nicole Waters and Valerie Hans, as part of the National Center for State Courts project on hung juries, 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 numbers were staggering. Clearly Ms. Chiakulas is pretty unique in refusing to cave in to majority pressure. Here is how I summarized the study's findings in that earlier post:

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.

So, when deliberations in criminal cases fail to generate unanimous consensus, the last holdout is more than five times more likely to give up and vote with the majority than to hang the jury. Given the sort of behavior Ms. Chiakulas describes, can we really be surprised by this statistic?

The Solution? Unanimity has to go.

It is important to realize that the majority jurors in the Blagojevich case weren't "wrong." Neither was Ms. Chiakulas. With so much discretion in the hands of a jury, from interpreting the credibility of witnesses, to balancing the relative importance of competing evidence, to resolving "mens rea" issues, reasonable people can -- and do -- disagree. Even when twelve disparate people do succeed in agreeing about who did what to whom when, there is always the thorny issue of "reasonable doubt", a term without a definition. Each juror is free to impose her own threshold. We know from experimental research that there is huge variation in how certain people need to be in a defendant's guilt to vote for conviction.

So, the problem is not that the jurors in the Blagojevich trial could not all agree. The problem is that the criminal justice system forces them all to vote the same way to deliver a verdict. The usual rationale for this requirement is that it instills confidence in the correctness of the verdict. But, as the Waters and Hans study clearly shows,

The "unanimity" of criminal verdicts is an illusion!

Legal scholars are trumpeting something that does not exist. Criminal verdicts are just as likely to be the result of bullying, intimidation, compromise, fear and just plain exhaustion as real unanimous consensus. In difficult cases, where reasonable people can disagree about the correct verdict, real unanimous consensus seems almost completely absent, with verdicts always dependent on some jurors voting against their true beliefs.

Here is what we do know about a system that requires a unanimous verdict.

1. There is a huge premium placed on jury selection, to avoid the possibility that "ouliers" will end up on the jury. This is critical because such outliers are most likely to reach different conclusions than their peers, endangering unanimous consensus. This is really the only argument propping up the morally, ethically and legally bankrupt practice of peremptory challenges.
2. The extensive use of peremptory challenges, along with judicial sensitivity to jurors who might be "biased," results in juries that fail miserably in any effort to reflect a fair cross-section of the community from which they are drawn. Essentially, anyone with strong views on topics relevant to the case at hand will be dismissed. This has a detrimental impact on the completeness and inclusivity of jury deliberations.
3. Jurors who reach conclusions that differ from the majority of other jurors come to be seen as obstructionist. Their views are resented because they interfere with the delivery of a verdict. Many jurors who find themselves in the minority choose to remain silent for fear of the reactions their opinions might engender.
4. Jurors in the majority are placed in the unenviable position of being asked to convert any dissenters by whatever means possible. The judiciary has declared that it does want to know how the jury verdict sausage is made. As such, juries are simply told to do whatever it takes to return a unanimous verdict. Even jurors who don't really want to resort to bullying and cajoling may feel forced to do so in order to satisfy the Court.
5. Lots and lots of jurors in criminal case in the United States are lying to us. When asked by a judge, "So say you all?," the foreman replies, "So say we all." And it's all a big lie that everyone knows about but no one is willing to expose. Why should we endorse a system that forces jurors to take an oath to vote sincerely and then imposes a voting requirement that begs them to violate that very oath?
6. England abandoned unanimity for jury trials in 1968. Did you hear about the riots? That's because there weren't any. Oregon and Louisiana have used non-unanimous verdicts in criminal cases for centuries. No riots there either. In Australia, the states that still have unanimity are under pressure from the public to move away from unanimity.

The solution is to move away from unanimity to a more reasonable voting system for criminal trials. For instance, we could require 8 guilty votes for a conviction. Absent that number, the defendant is acquitted. This would, of course, also eliminate the wasteful spending associated with retrials following hung juries. I do believe that that concern that a majority will simply vote for a conviction and refuse to listen to dissent is a real one. There are two possible solutions to this concern. First, one could impose a minimum deliberation time (which would presumably increase with the seriousness of the offense). Alternatively, one could impose a unanimity requirement for the decision to stop deliberating. So, if the jurors are not unanimous as to the correct verdict, but they are unanimous in thinking that further discussion will not be productive, they can vote to end deliberations and render a verdict.

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.

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.

Dynamite Charge might Blow Up in Judge's Face

A Tennessee jury was having trouble reaching a verdict in a major medical malpractice case. The doctor, Michael Goodman, was being sued for $12 million. His patient, Kristen Freeman, went into cardiac arrest, following a colonoscopy performed by Dr. Goodman, and suffered permanent, debilitating brain damage.

After two days of deliberations, the jury informed Judge Jacqueline Bolton that they were deadlocked and could not reach a unanimous verdict. After reminding the jurors of the time, expense and emotional energy that had been invested in the case, Judge Bolton proceeded to give the jury a very strong version of an Allen, or dynamite charge:

If a substantial majority of your number are in favor of finding a verdict, those of you who disagree should reconsider whether or not your doubt is a reasonable one, since it appears to make no effective impression upon the minds of the others.

According to affidavits from four jurors, this instruction caused them to rethink whether each juror was responsible for evaluating for herself which verdict would be correct. Rather, they felt as if the judge had suggested that they acquiesce to the majority position if that position had been resistant to arguments from the jurors in the minority.

One juror stated

When I heard the additional instruction again, I felt the court was instructing me to abandon my opinions and agree with the majority so that the case could be resolved by this jury and not have to be retried.

The jury ultimately found Dr. Goodman 51% responsible, which generated a damage award in excess of $6 million.

In light of the Allen charge and the subsequent affidavits, the defense is filing an appeal, alleging, among other things, judicial misconduct.

The unanimity rule employed by Tennessee is a major culprit in this drama. We know that at least two-thirds of the jury was genuinely in favor of finding for the plaintiff in this case. Would it have been more "just" to have found for the defense? That would implement tyranny of the minority. Would a hung jury have been a superior result? Well, if the entire matter has to be retried, the ultimate result would be that one side or the other would prevail. Why not let the first jury take care of that? This jury seemed pretty conscientious. Do we have any faith that the next one would be "superior" in any way?

Ultimately, several jurors in this case voted "insincerely." Four of them voted to hold the defendant liable despite the fact that they didn't really believe it. The 51% responsibility assigned to Dr. Goodman suggests a compromise: the members of the majority coalition agreed to reduce the doctor's responsibility level as low as possible, while still permitting the plaintiff to collect. It seems as if the jurors who wanted to find for the plaintiff didn't vote their true position either.

The courts have long turned a blind eye -- or a knowing wink -- to this kind of behavior by jurors. Judges know that holdouts are coerced into going along with the majority. They know that jurors cut deals to find a compromise they can all live with. The Allen charge is a not-very-subtle endorsement of this kind of "creative" verdict crafting. Most verdicts reflect only one kind of true unanimity: a unanimous willingness to suspend the rules in order to generate a verdict.

So, the legal fiction that is unanimity soldiers on. Meanwhile, the courts choose to ignore the implications for the legitimacy of our civil jury system (I have written extensively about the problems with unanimity in the criminal context elsewhere). Jurors are jaded about the fairness and transparency of our court system. Such an attitude can only be reenforced when the jurors themselves are forced to cut back-room deals to resolve cases. The slavish commitment to unanimity also leaves a trail of anguished jurors who have been forced to check their principles at the door in order to churn out a verdict. Regret of the sort experienced by the jurors in this Tennessee case is not uncommon. I have to think that they would have slept better at night had they been permitted to vote their consciences, even having been out-voted in the end. People don't mind losing, so long as they feel that they have had a chance to speak their piece and that the rules of the game were fair.

As for this particular appeal, I think that the defense has an uphill battle. One obstacle is the prohibition against jurors serving as witnesses with respect to their deliberations. Federal Rule of Evidence 606(b) (and its state counterparts) forbids jurors from testifying about their deliberations, or mental processes associated therewith, after a verdict has been handed down. There is an exception carved into the rule for "extrinsic influences" on the deliberations. This category typically includes unauthorized research by jurors, juror tampering and exposure to publicity about the case. I believe that the jurors can only testify about the effects of the judge's instructions if there is a "substantial risk of a miscarriage of justice" associated with the judge's alleged error.

I do not believe that an appellate judge is likely to be sympathetic to the defense claims here. After all, this kind of jury behavior happens all the time. The only difference here is that the judge chose to articulate what usually remains unsaid.

Itsy-bitsy jury can cause massive migraines

In following the trial of George Tiller, the Kansas abortion doctor on trial in Wichita, I noticed that Kansas uses six-person jurors in criminal cases. Dr. Tiller's attorney made a motion for a jury of twelve in the case, against the objection of the prosecution. The judge denied the motion and seated six jurors and two alternates. Such an arrangement, while offering some cost-savings, is a recipe for disaster from a justice perspective.

The Supreme Court Perspective

The US Supreme Court, in Williams v. Florida (399 U.S. 78, 1970), decided that the Constitutional guarantee of a jury trial did not require a twelve-member jury. The historical analysis seems in keeping with other 6th Amendment jurisprudence of the time. The Court, however, gave rather short shrift to whether it was a good idea to use such small juries. Their complete attention to the question is captured is the following passage from Justice White's opinion:

To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representatives cross-section of the
community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12--particularly if the requirement of unanimity is retained. And, certainly the reliability of the jury as a factfinder hardly seems likely to be a function of its size.

So, the Court does identify some of the Constitutionally pertinent features of a jury trial affected by its size, but the Court gets all of its conjectures about jury behavior completely wrong.

Group Deliberation

A jury as small as six is much more likely to be dominated by a strong personality than is one with more members. Often, the people who try to control deliberations prove to be "false experts" and to have extreme, inflexible views. Such personality traits work contrary to open and complete deliberations, but they typically go unchecked in such a small group.

When juries handle difficult cases, the kind that reveal fundamental disagreement among the jurors, camps tend to form (hopefully not right away). Each camp usually has a de facto spokesperson and the ongoing debate becomes largely a dialogue between the spokespersons, with occasional input from others. In a six-person jury, it is much more likely that no one will want to assume the spokesperson role for one of the sides.

Jurors get facts wrong. These errors can lead deliberations in bad directions. Sometimes, a jury will reach a verdict that it would not have reached had it correctly recalled the evidence and testimony. We would, presumably, want to minimize the chance that a verdict would be based on an erroneous factual foundation. Studies have shown, without fail, that larger juries tend to raise a larger number of probative case facts during deliberation, allow factually mistaken statements to go uncorrected less often and have greater confidence in their verdicts than do smaller juries.

Outside Influences

The Court speaks of "outside intimidation," by which is presumably means jury tampering and/or pre-trial publicity. Suppose, for a moment, that a defendant in a criminal trial had successfully bribed or intimidated a juror. The chance that the juror could convince all 11 other jurors to vote with him, contrary to the evidence, is pretty slim. On the other hand, if he could convince only a few others on a six-person jury, he could probably secure an acquittal (Empirical evidence shows a majority "tipping-point" for acquittals. If half the jury favors an acquittal, the rest typically falls in line quickly.) If a defendant is committed to getting to all the jurors on a jury, his job is certainly made easier by cutting the number in half. So, I would think that jury tampering is a bigger concern with smaller juries.

Trial courts typically do an awful job of dealing with the pretrial publicity problem. Jurors routinely fail to volunteer when they have seen, heard or read about a case in advance. When they do admit to being exposed to pretrial publicity, the judge typically asks them exactly the wrong question: "Notwithstanding what you have seen, can you remain fair and impartial in this trial?" The ones who say "yes" get seated. All the empirical studies say that jurors who admit that it might be difficult to ignore pretrial publicity tend to be fairer to defendants than those who swear that they can be impartial. So, it is a given that some jurors who are affected by pretrial publicity will make it onto the jury. Each such juror will be more influential on a six-person jury than on a larger one. Should it become clear that a juror is making arguments based on "extra-legal" material, another juror is more likely to cry "foul" when the jury is larger.

A similar dynamic is at play when it comes to unauthorized juror research, such as consulting dictionaries, googling witnesses, or visiting crime scenes. The influence of one juror who breaks the rules is larger on a smaller jury.

Representative Juries

One need not be a statistical genius to realize that, in expectation, a larger random sample will be more representative of the general population than will be a smaller random sample. This problem is only exacerbated by the exercise of peremptory challenges. Such challenges, to the extent that the attorneys are successful at evaluating the tendencies of potential jurors, eliminate people whose views lie at either end of the distribution of opinion. In Dr. Tiller's case, for instance, each side had 5 peremptory challenges. So, of the 18 people who were deemed qualified to serve on the jury, the lawyers could strike more than half. To the extent that the population is at all heterogeneous with respect to attitudes pertinent to the case at hand, using six-person juries substantially hinders the likelihood of obtaining a representative jury.

The Constitution is silent about the identifying the dimensions on which we'd like juries to be representative. If we would like a good distribution of talents and life experiences, it will be hard to achieve this goal with a six-person jury.

Dr. Tiller's case has incited strong passions in the Wichita community. It remains to be seen how the use of a six-person jury will affect the ability of such passions to influence the verdict.