Changing views of jury power

This article highlights the major events and empirical research in the continuing debate over the power and competence of the jury in civil and criminal trials. The concept ofjury nullification, the power of the jury to return a verdict based upon their moral conscience despite the evidence and the law, is used as a convenient filter to discuss the legal and behavioral assumptions about jury power and performance. The legal, historical, and even behavioral contexts reflect a bipolar theme in the level of trust Americans have exhibited towards the jury system. One pole reflects the notion that juries lack predictability and rationality in their verdicts and are moved by emotional concerns. Antipodally, juries have been thought to reflect an historical competence at applying common sense notions of equity and rationality to conflicted and ambiguous cases. This article traces the history of these two views of jury power and competence. A critical review of the empirical research that may inform the debate about the jury's competence in both criminal and civil arenas is provided.     

Jurors' interpretations and jury decision making

In arriving at their verdicts, jurors must determine what really happened in the case at hand. Their interpretations then guide their decision making and become influential in the group deliberation process. This article uses conversational data from simulated jury deliberations to describe jurors' practice of articulating schematic interpretations as accounts for their verdict choices, and as means for persuading other jurors. As jurors contribute additional interpretations during deliberations, the group decision-making task becomes more complex, deliberations las longer, and they are more difficult to resolve. A significant negative relation is established between the number of interpretations articulated and the jury's likelihood of reaching a unanimous verdict. Articulating multiple interpretations in support of a candidate verdict appears to militate against its unanimous adoption.I am endebted to Andre Modigliani and Joseph Sanders for their invaluable assistance on this project.     

A quota jury: affirmative action in jury selection

It is not too naive to believe that the use of affirmative action policies in the jury selection for the Rodney King beating trial of White police officers would have prevented the uprisings that followed their acquittal. The public outrage and riots that followed the verdict demonstrated the need for affirmative inclusion of racial minorities on jury trials to preserve and restore the public’s confidence and legitimacy of verdicts in racially motivated cases. While racially mixed juries offer many benefits, current jury selection procedures fail to provide much protection to members of racial minorities in criminal trials. From the source list to the discriminatory use of peremptory challenges, the current selection procedures provide almost no protection to racial minorities. The issue of preferential treatments of racial minorities in education, employment, and business has divided the nation and even some minority communities themselves. Affirmative action in jury proceedings and trials, however, has yet to receive much deserved attention and critical scrutiny. This article empirically examines public perceptions of possible applications of affirmative action mechanisms in criminal jury proceedings, focusing on the uses of mandatory racial quotas to engineer racially integrated juries in criminal trials. Three different types of racially mixed juries—the jury “de medietate linguae,” the Hennepin jury model, and the social science model—are examined, and the public’s perceptions of affirmative mechanisms ensuring minority participation on juries are analyzed. This article argues that the affirmative mechanism to secure racially mixed juries is essential to both the appearance and substance of fairness in criminal jury proceedings, and both the Hennepin model and the social science model are overwhelmingly supported as the ideal types of affirmative jury structures in creating racially heterogeneous juries.     

The objective reality of evidence and the utility of systematic jury selection

Significant relationships between jurors' demographic characteristics, attitudes, and verdicts have stimulated an interest in systematic jury selection. However, critics of this approach argue that verdicts are based on the strength of the evidence presented rather than on the composition of the jury. This analysis of demographic and attitudinal data and the responses to a vignette collected from a jury-eligible sample explores the association between perception of strength of evidence and both case-relevant attitudes and demographic characteristics and then examines the amount of variation in verdict explained by juror characteristics when strength of evidence is already taken into account. The findings point to the inclusion of strength of evidence in systematic jury selection procedures.     

JUST: a measure of jury system trustworthiness

ABSTRACT

Three studies developed and tested a new measure of the perceived trustworthiness of the jury system, the 23-item Jury System Trustworthiness (JUST) scale, and assessed the scale’s convergent and discriminant validity. Study 1 assessed the scale’s factor structure and relation to other relevant constructs. In Studies 2 and 3, the JUST scale was administered to participants in two separate mock juror studies. The results of all three studies supported the hypothesized factor structure of the measure but showed that a simplified, 7-item measure was also effective. Overall, participants’ perceptions of juries were moderately positive, and the JUST scale was related to attitudes toward the police, authoritarianism, belief in a just world, juror bias, preference for a jury (vs. a bench) trial, and intention to respond to a jury summons. It also explained a unique portion of the variance in jury-specific beliefs and behavioral intentions, such as preference for a jury trial and response to a summons, beyond that accounted for by other legal attitudes. The JUST scale was not related to verdict decisions in either mock trial after controlling for authoritarianism. Several individual differences (e.g. age, race/ethnicity) were also related to attitudes toward the jury system.     

The jury: Social and psychological variables

The selection of a jury is an important phase of the American court system. Many lawyers believe that wise choices at this point may mean the difference between winning and losing a case. Various means of selecting jurors have been practiced by attorneys, and there seem to be among lawyers general impressions about the type of people best suited for certain cases. These ideas have most often concerned social, economic and psychological variables rather then genetic factors.The purpose of this study is to add to the limited body of knowledge in this area by identifying and testing some of these variables. The first step was to design a research instrument to gather significant data relating to the jury system. Included in this examination were both psychological and socio-economic information. Also incorporated into the study were questions designed to reveal the respondents’ jury backgrounds. Items sought to disclose how a juror perceived the trial, interacted with the group, and voted.After the construction of the research tool, a survey was made using it in one of the counties of Florida. The interviews were conducted to gather data regarding perceptions of jurors and test the research tool. The people chosen to be interviewed came from the venire furnished by the county clerk. Analysis of the information was conducted. Statistical tests of significance revealed that the people illustrated a strong support for the jury system and a relatively high degree of commonality of attitudes. Comparisons were done on groups voting guilty with those voting not guilty. Voting tests on national origin and income further supported a homogeneity of attitudes. The importance of a trial vote to testing jurors was found.This case study aided in identifying some plausible hypotheses and providing data on the relationship of variables that are of import to understanding the jury system.     

Statistical techniques for juror and jury research

Juror and jury research is a thriving area of investigation in legal psychology. The basic ANOVA and regression, well‐known by psychologists, are inappropriate for analysing many types of data from this area of research. This paper describes statistical techniques suitable for some of the main questions asked by jury researchers. First, we discuss how to examine manipulations that may affect levels of reasonable doubt and how to measure reasonable doubt using the coefficients estimated from a logistic regression. Second, we compare models designed for analysing the data like those which often arise in research where jurors first make categorical judgments (e.g., negligent or not, guilty or not) and then dependent on their response may make another judgment (e.g., award, punishment). We concentrate on zero‐inflated and hurdle models. Third, we examine how to take into account that jurors are part of a jury using multilevel modelling. We illustrate each of the techniques using software that can be downloaded for free from the Internet (the package R) and provide a web page that gives further details for running these analyses.     

The Swedish jury system in press cases: An offspring of the English trial jury?

In the area of press freedom the English influence has for more than 200 years been strongly felt in Sweden. The introduction of a jury system in press cases in 1815 was clearly inspired by the English example. The Swedish variant had, admittedly, some strange features but it was nonetheless, in essence, a jury. Thus it should, historically and systematically, be looked upon as an offspring of the English trial jury.

Since 1815 the Swedish jury has grown more ‘English’ in some respects. Those greater similarities notwithstanding, there are still important differences between the two systems. At least two of the differences are the result of Swedish innovations.

In 1949 the Swedes in the new Freedom of the Press Act included a provision, stating that the court of first instance not only may but must review a verdict of conviction. If also the court convicts and, consequently, fixes the penalty, the defendant can always take the case at least to the appropriate court of appeal. Thus, there is a double‐check or even a triple‐check against an unwarranted conviction. From the defendant's point of view the Swedish jury system can be described as fool‐proof.³⁵

In 1949 the Swedes also introduced a new method of choosing the jury. The jurors are drawn by lot but not, as in England, with the electoral register as the starting point but from a panel chosen by politically elected councils. Furthermore, one third of the jurors must be present or former lay assessors. Through that method of selecting the jurors the Swedes have reasonably counteracted the traditional charges that juries are ignorant or confused or both. On the other hand, the Swedish system may be sensitive to political influence on the administration of justice since the composition, not exactly of this or that jury but of the whole panel, is the indirect result of political elections. However, once more, unwarranted convictions are almost certainly reversed by the courts.

With their method of choosing the jurors the Swedes also avoid a problem which has, in recent years, caused considerable disquiet in Great Britain ‐ jury vetting. The ancient practice of ‘Stand by for the Crown’ is still a reality in English courts. How often the prosecution uses its right to influence the composition of juries by vetting proposed jurors is not known. However, the practice has caused serious concern among lawyers. ‘The fear of “packed” juries is still with us’, to quote an expert in the field, John F. McEldowney.³⁶

The Swedish jury in press cases is certainly not the most important or the best known offspring of the English trial jury ‐ that is, of course, the American jury. However, the Swedish jury has survived for more than 165 years and is still going strong. It is quantitatively of modest significance ‐ there are in ‘normal’ years no more than a dozen cases in the country. However, the jury has an umbrella effect outside the printed media, i.e. what you are allowed to say in a newspaper or in a book you can almost certainly say at a public meeting or on a stage.

In recent decades the Swedish jury has shown a considerable capability of development. It has approached the English model on some points while, at the same time, making innovations on others. It is possible that Sweden during the 1980s may somewhat expand the jury system within the area of free speech, i.e. outside the printed media.     

The Jury between the Civil and the Criminal Law

This article comprises two case studies of a ``problem' within the Anglo-Welsh legal process of jury trial. In that tradition, the judge not only instructs on the law to be applied by the jury, s/he also ``summarises' the evidence after counsel have already done so. This summarising is largely unconstrained by appellate control. The ``problem' that the two cases present is that they were trials of ``civil' issues in which the subject matter is also categorised as ``criminal'. Where such overlaps occur the relevant law is not easy nor clear. This can present difficulties for the judge, which may and in these cases were transmitted and amplified to the jury. In the first case study, the rhetorical direction of the judge's language are analysed. In the second, the language is analysed as a generator of confusion rather than direction. In both cases the outcome in the jury's verdict reflect the judicial language. Under current British law, investigation of the conversion process from judicial ``Summing-up' through collective jury deliberation to verdict is illegal.     

Race and peremptory challenges during voir dire: Do prosecution and defense agree?

Recent litigation in state and federal courts in the United States suggests that black prospective jurors may be systematically excluded from sitting on trial juries through the issue of peremptory challenges during the voir dire process. Numerous trial and appellate cases have reaffirmed the importance of excluding prospective jurors without cause through peremptory challenges. An insufficient number of studies have examined peremptory challenge data to determine if a systematic bias against black prospective jurors actually exists. This study analyzes peremptory challenges issued by both prosecution and defense to determine if both adversary parties agree on the proclivity of black jurors to influence a jury verdict in a given direction. The study concludes that both prosecution and defense agree, as evidenced in the issue of peremptory challenges, that black jurors are prone to move a jury toward a verdict of acquittal.     

Transplanting Jury Trials in South Korean Legal Soils: Comparative Analysis with Jury Trials in the United States

Jury trials, known as common-law institution centering on the UK and the USA, for the first time in Korean adjudicatory history, have been transplanted into Korean legal soils under cultural and political climate with legal roots of the “Civil Participation in Criminal Trial Act (CPCTA) of 2007” since 2008. This research examines legal and operational issues of jury trials through comparative analysis between the United States and South Korea. Several legal characteristics of 2013 revision bill of CPCTA, proposed by the Committee of Civil Participation in the Judiciary (CCPJ), are to be pointed out: so-called “civil participation” approach, de facto binding power of jury verdict and sentencing, and a stricter standard for a jury verdict or decision (3/4 majority). Statistical results from planting jury trials in both American and Korean legal system proved to be very similar. Meanwhile, a 2013 revision bill has to overcome several practical and legal obstacles, such as low usage of jury trials, the high rate of judicial dismissal of defendants’ petitions, and violation of Article 27 of the Korean Constitution. Under the current legislative scheme, judges in Korean courts need to operate jury trials in such a careful and respectful way that the revision may neglect neither a defendant’s right to jury trial nor jury’s verdict. Legal scholars, experts, and legislators with interests in implementing jury trials in Korea should research on ways to expand the system to other judicial procedures such as juvenile, civil, family, and administrative cases.     

An alternative method of capital jury selection

The purpose of this research was to develop and evaluate an alternative method of capital jury selection. Subjects who were classified as excludable and nonexcludable from capital jury service were exposed to a crime questionnaire which contained 16 brutal crimes. Sixty-five percent of the excludables indicated that they would consider imposing the death penalty in one or more scenarios, with 76% maintaining the new position 48 hours later. Furthermore, the rehabilitated excludables were significantly more tolerant of ambiguity and more due process oriented than the nonexcludables. A second study showed that the crime questionnaire did produce a small amount of bias against the defendants in terms of conviction rates and penalties. The advantages of the alternative system for providing a more objective, standardized questioning procedure and a more representative, less attitudinally biased jury are discussed.     

Impact of hypnotic testimony on the jury

In the past decade, the forensic use of hypnosis to enhance the memories of victims, witnesses, and defendants has sharply increased. A great deal of controversy surrounds this issue. Some commentators argue that testimony derived from hypnosis should not be allowed as evidence because of its inherent unreliability and the unduly powerful impact it may have on a jury. In the present research, we used a jury simulation technique to study the impact that a hypnotically refreshed witness has upon jurors' decision making. A major finding is that jurors view hypnotic testimony with a certain amount of skepticism. In some respects, its impact is comparable to that of testimony based on delayed recall, and rarely does it have the impact of testimony from an immediate report. In addition, jurors' judgments about hypnotically refreshed testimony affected the way they evaluated other evidence at trial: Jurors who learned that a prosecution witness had been hypnotized were less believing ofother prosecution witnesses than were jurors not exposed to hypnotic testimony. The forensic application of these findings is discussed.This research was supported by a grant from the National Science Foundation, Law and Social Sciences Program. We thank Jane Goodman, Doug Leber, Bonnie Sawnson, Russ Wade, Karen Guest, Jonna Barsanti, Don Kline, Elaine Sullivan, and David Kuykendall for their help at various stages of the project.     

Race and the decision making of juries

The relationship between race and jury decision making is a controversial topic that has received increased attention in recent years. While public and media discourse has focused on anecdotal evidence in the form of high‐profile cases, legal researchers have considered a wide range of empirical questions including: To what extent does the race of a defendant affect the verdict tendencies of juries? Is this influence of race comparable for jurors of different races? In what ways does a jury's racial composition affect its verdict and deliberations? The present review examines both experimental and archival investigations of these issues. Though the extant literature is not always consistent and has devoted too little attention to the psychological mechanisms underlying the influence of race, this body of research clearly demonstrates that race has the potential to impact trial outcomes. This is a conclusion with important practical as well as theoretical implications when it comes to ongoing debates regarding jury representativeness, how to optimize jury performance, jury nullification and racial disparities in the administration of capital punishment.     

The effect of jury nullification instruction on verdicts and jury functioning in criminal trials

Jury nullification is a mechanism, and a defense, which allows the jury, as representatives of the community, to disregard both the law and the evidence and acquit defendants who have violated the letter, but not the spirit of the law. Should juries simply follow the law as articulated by the trial judge, or should they act as “conscience of the community,” and neglect the strict requirements of the law when it would lead to unjust or inequitable verdicts? The present study was aimed at providing empirical data for the following question: will the jury operate in a manner which is different than its normal functioning if given explicit nullification instructions? Three nullification instructins varying in explicitness as to nullification were combined with three criminal cases to yield a 3×3 factorial design. Forty-five six-person juries (270 subjects), were randomly assigned to the nine experimental groups. The results showed that juries given explicit nullification instructtions were more likely to vote guilty in a drunk driving case, but less likely to do so in a euthanasia case. The third case, which dealt with murder, did not show any differences due to instructions. Juries in receipt of nullification instructions spent less deliberation time on the evidence and more on defendant characteristics, attributions, and personal experiences.     

The basis of citizen's perceptions of the criminal jury

Two studies examined citizens' perceptions of the criminal jury and their evaluations of 6- or 12-person juries operating under unanimous or majority decision rules. Study 1 was a telephone survey of 130 adult citizens in which respondents evaluated alternative jury structures in the abstract. In Study 2, students were asked to evaluate jury structures for a hypothetical trial in which they were either the defendant or the victim in a crime with a mild or serious outcome. In both studies, jury size and decision rule were related to ratings of procedural cost, and the severity of the crime moderated procedural evaluations. In Study 1, juries were preferred to judges and the 12-person unanimous jury was preferred over other jury structures when the crime involved was serious. In Study 2, there were no direct effects due to variations in jury structure, but subjects appeared to trade off procedural cost and thoroughness of deliberation as a function of the seriousness of the crime. Procedural fairness emerged as the strongest independent predictor of desirability for jury procedures, and fairness was related to representativeness and accuracy. The role manipulation did not influence subjects' responses. In both studies, respondents were very supportive of the jury as an institution, despite a perception that erroneous jury verdicts do occur.     

Mixed Court and Jury Court: Could the Continental Alternative Fill the American Need?

For cases of serious crime a number of European countries employ a variant of the jury called the mixed court, in which laymen and professional judges sit together in a single panel that deliberates and decides on all issues of verdict and sentence. Trials in the mixed court proceed quite rapidly, in large measure because the mixed court dispenses with most of the time-consuming practices of jury control that characterize Anglo-American trial procedure. Consequently, the legal system can process all cases of serious crime to full trial. The present article describes the German mixed-court system and contrasts it with the American jury, asking to what extent the mixed court serves the purposes of the jury. The conclusion is that the mixed court serves the jury policies well, though not fully; and that it is a superior alternative to the indigenous nontrial devices—plea bargaining and bench trial—that have displaced the jury from routine American practice.     

Juror experience and jury verdicts

Most trial attorneys believe that repeated jury service produces several effects in jurors, one of the most important of which is an increased disposition toward conviction of criminal defendants. However, case law reveals a reluctance to accept the proposition that prior service per se would disquality a juror from sitting on an instant case because of actual or implied bias. The need for direct empirical investigation of the effects of prior jury service prompted the present study, which examined a complete docket of 175 consecutive criminal trials across onecalendar year in a state circuit court which required a 30-day term of its venire. The results indicated that as the number of jurors with prior jury experience increased there was a modest, but significant, increase in the probability of a conviction. Analysis of the relationship between initial verdicts and subsequent service disconfirmed the alternative hypothesis that attorneys deselected jurors on the basis of their first verdicts. Several parameters of experience were also related to foreperson selection. Implications for legal practice and for additional research are discussed.Support for this research was provided, in part, by National Science, Foundation grant No SES-8209479. A portion of this work was conducted while the senior author was a James McKeen Cattell Foundation Fellow.