Juries Research Paper

The ideal jury too conjures up multiple images: a thorough and impartial judge of the evidence presented at trial, a faithful representative of the community from which it is drawn, a compliant follower of its legal instructions, a protector of citizens against the power of the state, and a repository of commonsense justice that tempers the harsh hand of the law. Critics charge that juries fail to meet one or more of these standards. Behavioral scientists who study the jury find some variation from this set of ideal attributes, in part because the attributes can be inconsistent with one another, in part because the jury’s cognitive and motivational characteristics influence its behavior.

1. Jury Variations

The jury has gone through numerous incarnations over time and exists internationally in a variety of forms. The early English jury was limited to male property owners who were summoned to decide a case because they were familiar with the facts. They acted as witnesses, investigators, and tribunal, determining both the facts and the law. The modern American jury is drawn from the citizenry at large, with the parties entitled to eliminate some prospective jurors if they have preconceived notions about what the verdict should be before the trial begins. Jurors generally are expected to sit quietly through the trial, apply the law as it is described in the judge’s instructions, deliberate until they reach a verdict or an impasse, and disperse without personal consequences, except for the occasional inquiries of the American press in high-profile trials. The right of citizens to have both criminal and civil controversies resolved by groups of ordinary fellow citizens is guaranteed by the US Constitution and by every state constitution.

Although the majority of criminal trials decided by a jury occur in the USA, juries are also part of the criminal justice system in the countries of the British Commonwealth. Moreover, a resurgence in juries is taking place (e.g., in Spain and Russia), reflecting the perception of citizen adjudication in the justice system as a mark of democratic reform. In civil cases, jury trials occur almost exclusively in the USA and Canada. England eliminated juries in most civil cases by the 1930s, retaining the civil jury primarily in defamation cases. Most modern juries are small, compared to the ancient Greek jury of several hundred that tried Socrates. For example, the Brazilian jury has seven members, and some American jurisdictions have juries of six. Under the ancient Greek jury system and the modern Brazilian jury system, deliberations are omitted and verdicts are determined by the position taken by the majority in a secret ballot vote. Like the American and English juries, the Spanish jury includes deliberation, but it adds the requirement that the jury provide a rationale for its verdict.

Although the jury is prominent in discussions about the American legal system, legal disputes are infrequently resolved by the verdict of a jury, even in the USA. Most criminal cases in the USA end in dismissals or guilty pleas; most civil cases are dismissed or settled. An estimated 150,000 jury trials occur annually in state courts and an additional 10,000 in federal courts. The influence of the jury extends far beyond the trials it actually decides, however, as litigants and attorneys anticipate what a jury would do if asked to resolve the dispute. Inaccurate expectations are common, based on impressions gleaned from high-profile but idiosyncratic trials and from trials resulting in unusually high awards that attract media attention. The absence of direct and reliable feedback on what would have happened had a jury actually decided a case that was resolved without trial provides little opportunity to correct misimpressions.

2. Political Roles Of The Jury

In addition to adjudicating disputes, the jury is a potential source of legitimacy for the legal system. To the extent that the jury is viewed as representing a fair cross-section of the community, its verdict is likely to be seen as the product of fair consideration and can carry a legitimacy that the decision of the judge, as an employee of the state may lack. Even when its verdict is unpopular and even if observers believe that the jury does not fairly represent the community, the jury acts as a lightning rod, insulating the judge and other parts of the state legal system from criticism.

The jury also can act as a conduit for community standards. For example, in evaluating a claim of self-defense, the jury must determine what a reasonable person would be expected to believe, as well as what the particular defendant did believe. Although the jury is charged with applying to the facts the law it receives from the judge, the self-defense example illustrates the fuzziness of the division between law and facts. The jury must often inject its understanding of appropriate standards into its fact-finding even while scrupulously following the instructions that the judge provides.

A final political role for the jury is its educative function, identified by De Toqueville as the jury’s great strength. Surveys suggest that more than half of American adults have had some personal involvement with the courts, and of this subgroup, half have served on a jury. Citizens also receive information and misinformation on the courts from other sources, including the media. The extent to which jury service provides additional or corrective information is unclear, but jury experience tends to make jurors feel more positive about the jury system

3. Methodological Challenges In Studying The Jury

Study of the jury is a particularly thorny project because the jury speaks publicly only to deliver its verdict: deliberations occur outside the presence of any nonjuror. Although not all jurisdictions have legislation that bars access to jury deliberations, there have been only a few instances in which deliberations have been observed or recorded. Courts have been reluctant to permit observation even when no law forbids it. Researchers interested in the jury have generally been left to study the jury more indirectly. They have used a variety of approaches (each with strengths and limitations): archival studies of jury case characteristics and verdict patterns (records provide information on large samples of cases, but limited variables are recorded by courts, and local commercial jury verdict reporters systematically under-report cases); post-trial interviews with jurors (the jurors are reporting on the actual process of reaching a verdict, but what they report is limited to what jurors noticed, accurately recorded, remember, and are willing and able to report); surveys of other trial participants, such as judges and attorneys (these respondents are informed court observers, but they have only indirect information on jury behavior and their reports may be influenced by the verdict); field experiments (these can offer strong evidence on the impact of a legal reform like juror note-taking, but provide little information on process and are hard to implement correctly); and simulation experiments (simulations are strong on process information and provide unambiguous causal inference, but whether the findings can be generalized depends on correspondence with dynamics of real jury behavior).

4. How Jurors Evaluate Evidence

The traditional legal model of the jury trial portrays jurors as passive recipients of the evidence and legal instructions. Empirical studies of jury behavior find jurors to be active processors of incoming information. Early models of jury decision making included, first, averaging models in which jurors assess and weigh pieces of evidence, combining the results to reach a verdict and, second, Bayesian models in which jurors consider and evaluate each new piece of information, revising their position on the appropriate verdict in light of their prior position and the additional evidence. These formal models have enjoyed limited success as descriptions of how jurors actually decide cases. Explanation-based models of jury decision making, such as Pennington and Hastie’s (1986) story model, provide an account of jury behavior that comports better with empirical evidence. Consistent with the story model, jurors do not simply record and store the evidence for later use as they receive it. Rather, they actively select and/organize the trial evidence to construct a story about what happened. The story they construct is based on the evidence, but jurors also use it to fill in gaps in the evidence with inferences based on their understandings about how the world works. Jurors arrange evidence in the form of a sequence of motivated human actions that include important events, the circumstances of the case, inferences about character, and the parties’ motivations and states of mind. By influencing jurors’ understanding of what took place, the order in which facts are presented (i.e., in story order rather than witness order) can affect verdicts.

5. Jury Composition

The modern American jury is far more heterogeneous and representative of the citizenry at large than was the early English jury or even the jury in the early twentieth century. Nonetheless, the jury is not a random sample of citizens. It is the product of a multistage selection process that typically begins with a list of potentially eligible jurors drawn from voter registration lists and often supplemented by individuals holding drivers’ licenses in the general geographic area where the court sits. Prospective jurors may be excused from jury service on the basis of hardship, but losses also arise from geographic mobility, a failure to update the lists, and non-response by prospective jurors to a court summons. The loss of prospective jurors in the qualification and summons process results in a systematic under-representation of minorities, younger individuals, and those at lower income levels.

The final stage in jury selection occurs when prospective jurors are brought into the courtroom and questioned to determine whether they will serve in the particular case. Those who clearly express preconceived notions about what the verdict in the case should be or those with clear conflicts of interest are excused by the judge (the challenge for cause). In addition, the parties can excuse a limited number of prospective jurors without giving a reason (the peremptory challenge). The US Supreme Court has ruled that peremptory challenges based on race or gender are constitutionally prohibited, but it is likely that the prohibition fails to eliminate racially and gender motivated challenges. Courts generally do not require much justification from the party initiating the peremptory challenge when the opposing party charges that the challenge was improperly motivated. Also, the small number of challenged jurors in the typical trial means that an attorney can generally identify a unique and non-discriminatory reason for each challenge.

The result of this variety of shaping and sometimes cross-cutting forces is that juries tend to be somewhat more educated, wealthier and older, and less likely to include a representative number of minorities than the distribution of these groups in the adult population. The selection process that occurs before the jurors enter the courtroom is primarily responsible for the difference between the composition of the American jury and the adult population as a whole. Although the difference is likely to persist, the American jury today is more representative than it has ever been, and is more heterogeneous than the juries of other countries with jury system. Moreover, jury participation is extensive. Surveys indicate that 25 percent of American citizens are likely to serve on a jury trial at some point in their lives.

6. Jury Size And Decision Rule

Traditional English and American juries consisted of twelve members who were required to reach a unanimous verdict. Some American jurisdictions now permit juries with as few as six members and nonunanimous verdicts of 9: 3 or 10: 2; England permits a 10: 2 verdict if the jury has been unable to reach unanimity within a specified period of time. Reducing jury size increases the likelihood of an aberrant jury verdict. A majority decision rule tends to reduce the rate of hung juries and to shorten deliberations because jurors in the majority do not need to gain the support of all jury members. It may also result in less thorough deliberations if the deliberators can arrive at a verdict without considering the reasons why there is disagreement among the members of the jury.

7. Individual Differences

Attempts to predict juror verdict preferences from background characteristics have generally been able to explain only a modest amount of variance in outcomes. Demographic characteristics like gender, race, and age generally account for very little of the variation in response. Attitudinal characteristics can be more powerful, albeit also modest, predictors.

Expectations, beliefs, and values affect the way that jurors react to evidence. In that respect, jurors are no different from any other decision makers, because people ordinarily scrutinize more carefully and are more likely to reject information that is inconsistent with their beliefs and expectations, because it is generally easier for people to remember theory consistent information than theory-inconsistent information, and because ambiguous information tends to be interpreted as theory-consistent.

Some types of cases are more likely than others to implicate strongly held beliefs or values. A primary example involves the death penalty: even among jurors willing to impose the death penalty in some cases, the strength of their support for the death penalty can strongly influence the likelihood that they will vote for a death sentence.

8. Pretrial Publicity

The American constitutional right to a free press occasionally provides the public with information or misinformation about the case that a jury will be asked to decide. Under such circumstances, the constitutional rights to a free press and to a fair trial are potentially at odds, a conflict not faced in countries like Canada and Great Britain where the press is prohibited from writing about impending trials. Pretrial publicity about issues like a defendant’s alleged confession can affect the expectations and beliefs of prospective jurors in the USA. Although some limited research indicates that the effects of some types of pretrial publicity are generally small, it also suggests that jury selection and the passage of time cannot be depended upon to eliminate them. In some high-profile cases, the legal system faces not only the cost of moving a trial, but the increasing difficulty of identifying a location that media coverage has not saturated with pretrial coverage.

9. Competence, Including Reactions To Experts

Both criminal and civil trials increasingly involve the testimony of experts who present technical and scientific evidence (e.g., DNA analysis, econometric modeling, epidemiological and toxicological research). Such complex evidence presents a challenge for the experts who must communicate with a lay audience, for the judge who acts either as a gatekeeper in ruling on which experts can testify and what they can say or as the trier of fact, and for the lay jury.

Although jurors typically exert considerable effort in trying to understand the content of expert testimony, questions arise about the ability of jurors (and judges) to evaluate technical and scientific evidence. Jurors (and judges) can be confused by expert testimony, but that confusion can often be reduced or avoided if the expert is also a good teacher. Moreover, jurors frequently express skepticism about the trustworthiness of experts presented by parties within the adversary system and they adopt reasonable strategies to evaluate expert credibility. In addition, juries can and do draw on the expertise of their most competent members to assess the strength of the evidence, providing a resource that is unavailable to the trial court judge.

10. Reactions To The Law, Including Nullification

Jurors are instructed to apply the law as the judge describes it to the facts as the jury finds them. Juries may not always follow the instructions, but the primary cause of that failure is the inadequacy of the instructions rather than a willful disregard by the jury. Jurors may fail to follow the judge’s instructions on the law if they are either unmotivated or unable to apply the instructions, but they typically see themselves as obligated to apply the law and spend a significant portion of their time during deliberations discussing the law. Nonetheless, legal instructions often fail to provide jurors with helpful legal guidance. The major goal in writing jury instructions on the law is to produce language that will accurately reflect the relevant law so that appellate courts will find the instruction acceptable. Little attention is generally given to ensuring that the meaning of the instruction is clearly communicated. Although comprehension of instructions is often low, it can be significantly improved by using plain language, simplifying sentence construction, providing definitions for technical terms, and specifically correcting jurors’ inaccurate expectations and misconceptions.

Although the most common source of jury deviations from legal standards is a failure of the legal instructions to convey clearly what the appropriate legal standard is, jurors also may deviate from the path outlined in the instructions due to cognitive or motivational biases. For example, jurors admonished to disregard particular information may find it difficult to do so. Other legal instructions may ask the jurors to engage in demanding mental gymnastics—for example, to use a defendant’s criminal record only to assist in evaluating his credibility, but not as evidence of bad character; to forget that they learned about damaging evidence that the judge ruled inadmissible—and jurors may be unwilling or find it impossible to perform the required cognitive adjustments. It is unclear whether these failures are significantly less likely when the trier of fact is a judge, or whether they represent heuristic patterns of using information that neither can be expected entirely to overcome.

Finally, jurors may depart from the judge’s legal instructions when the application of the legal standard to the particular case so substantially violates the jurors’ sense of justice that they are persuaded to temper the letter of the law in that case. Although such deviations are rare, explicit jury nullification plays a central role in conceptions of the appropriate role of the jury and has been a source of extensive debate. Although courts have long recognized the power (as opposed to the right) of the jury to nullify, courts and commentators have argued about whether juries should be told about that power. When jurors are explicitly told that they have the right not to apply the law as the judge describes it, they are more willing to reach verdicts that avoid the literal application of the law.

11. Deliberations

Deliberations resulting in a group verdict distinguish the jury from its chief alternative, the trial court judge, in two ways. By requiring agreement from multiple jurors, the jury verdict in principle reduces the likelihood that the decision will represent an idiosyncratic view of a single deviant decision maker. Moreover, in theory, deliberations give the jury an opportunity to profit from the resources of its multiple members, to pool its knowledge and sensibilities, and to resolve differences, ultimately producing a verdict that reflects more than what could be achieved either by a single decision maker or by mechanically combining or averaging the preferences of the individual members.

The extent to which deliberations actually do affect jury verdicts, however, is in dispute. Some scholars (e.g., Kalven and Zeisel 1966) have suggested that jury verdicts simply reflect the position of the majority before deliberations begin. The picture they present is consistent with the verdict-driven jury that takes an immediate vote to see where each juror stands and then focuses its attention on persuading the minority to join the position initially held by a majority of the jurors. When a vote is immediate, it is likely to reflect predeliberation preferences. When a discussion of the evidence precedes a vote (the so-called evidence-driven jury), that vote will be affected by any changes that have occurred as a result of the discussion. Although jurors often call for an immediate vote, discussions can interrupt before a vote is completed, so that first votes often are not immediate and they imperfectly reflect the individual predeliberation preferences of the jurors. Nonetheless, most juries probably do end up with a verdict that reflects the majority that is visible by the time most of the jurors have expressed a verdict preference in deliberations. The majority, using both normative and informational pressure, persuades the minority to accept its position. The outcome of deliberations is less predictable when a majority position is less likely to emerge because there are multiple verdict choices or in civil cases where damages are at issue.

12. Civil Liability And Damages

Civil juries are sometimes viewed as pro-plaintiff when it comes to liability, although there is little evidence to support the claim that they are more likely than judges to find the defendant liable. Although jurors do hold corporations to a high standard of behavior, the standard primarily arises from an expectation that corporations are better able to control their behavior than an individual might be. On the issue of damages, the pattern of jury behavior is less clear. Compensatory damage awards generally vary with the severity of the injury (i.e., vertical equity), but there is some evidence that plaintiffs with small losses tend to be overcompensated and those with large losses tend to be undercompensated. Compared to special damages (e.g., lost wages, medical expenses), the difficult-to-measure general damages (e.g., pain and suffering), show greater variation in the amounts awarded for injuries at the same level of severity (i.e., horizontal inequity). In the absence of a standard for the ‘correct’ amount that will compensate for pain and suffering, some scholars have suggested that juries be supplied with information on the pattern of pain and suffering awards in previous jury trials involving similar injuries. Although the problem of defining ‘similar injuries’ remains, this additional information may reduce some unwarranted disparity across cases.

Civil juries are sometimes instructed that they can award damages for punishment and deterrence (i.e., punitive or exemplary damages) as well as damages for compensation. Punitive awards are rare, however. They most frequently occur in cases involving intentional harms and financial rather than physical harms.

13. The Jury vs. Alternative Triers Of Fact

Discourse on the performance of the jury frequently ignores a basic reality of legal systems: in evaluating the jury, the relevant comparison is not some hypothetical ideal decision maker, whatever qualities such a model decision maker would have. Rather, the appropriate comparison is the human alternative or set of alternatives that might be used in the jury’s stead. Alternatives to the jury include professional, legally trained judges and mixed tribunals composed of laypersons and legally qualified professionals. Studies that have compared the reactions of laypersons and legal professionals to the same criminal trials indicate, first, high levels of agreement on verdict (74–90%), and, second, a greater inclination to acquit by laypersons when they disagree with the professionals. In addition, agreement rates do not vary with the complexity of the trial, suggesting that disagreement is not a product of an inability of the laypersons to understand the evidence.

The assumption of the legal system that judges can ‘compartmentalize’ and discount legally inadmissible information when they are exposed to it appears to be an inflated expectation. However, the few studies that compare the process of decision making by judges and jurors show a surprising correspondence even in response to case characteristics that might be expected to influence laypersons more than professionals. Both laypersons and professional judges fail to disregard inadmissible evidence, are influenced by outcome information in their judgments about the probability of that outcome (the hindsight bias), and are reluctant to find for the plaintiff when presented with statistically based evidence. If judges are influenced by inadmissible evidence, the jury trial may provide an effective way to avoid burdening the trier of fact with much of the potentially biasing information that judges regularly confront. In addition, the trial judge in a jury trial retains the power to override a conviction by a jury if the judge determines that the conviction is unwarranted by the evidence, providing a rarely used but available extra protection for the defendant in a criminal jury trial.

14. Reactions To Jury Trial And The Reform Movement

As a lightning rod for popular debate, the jury is regularly the subject of calls for reform. Some proposed reforms, such as those advocating that jurors be permitted to take notes and to submit questions for witnesses during the trial, do not assume that juries are failing to perform adequately but rather are designed to assist them in reaching well-considered judgments, to improve the comfort of the conscripted citizens who serve as jurors, and generally to optimize jury performance and juror satisfaction. Other proposed reforms aim at reducing the right to jury trial or limiting the power of the jury, such as calls for a complexity exception to the right to jury trial in civil cases and for legislative caps that place a ceiling on jury awards. High-profile trials resulting in unpopular verdicts have stimulated some of the proposed changes in the jury system as have the concerted lobbying efforts of particular interest groups (e.g., the insurance industry). It is likely that calls for reform of all kinds will continue to follow the jury. The real question is whether the increasing scholarly literature on jury behavior will inform popular and political discussions about the jury.

Bibliography:

1. Abramson J 1994 We, The Jury: The Jury System and the Ideal of Democracy. Harper Collins, New York
2. Daniels S, Martin J 1995 Civil Juries and the Politics of Reform. Northwestern University Press, Evanston, IL
3. Diamond S S, Casper J D 1992 Blindfolding the jury to verdict consequences: damages, experts, and the civil jury. Law & Society Review 26: 513–63
4. Ellsworth P C 1989 Are twelve heads better than one? Law and Contemporary Problems 52: 205–24
5. Galanter M 1993 The regulatory function of the civil jury. In: Litan R (ed.) Verdict: Assessing the Civil Jury System. Brookings, Washington, DC
6. Greene E 1989 On juries and damage awards: the process of decision-making. Law and Contemporary Problems 52: 225–46
7. Hans V P, Lofquist W S 1992 Jurors’ judgments of business liability in tort cases: implications for the litigation explosion debate. Law & Society Review 26: 85–115
8. Hastie R, Penrod S D, Pennington N 1983 Inside the Jury. Harvard University Press, Cambridge, MA
9. Heuer L, Penrod S D 1996 Increasing juror participation in trials through note taking and question asking. Judicature 79: 256–62
10. Horowitz, I 1985 The effect of jury nullification on verdicts and jury functioning in criminal trials. Law and Human Behavior 9: 25–36
11. Kalven H Jr, Zeisel H 1966 The American Jury. University of Chicago Press, Chicago
12. Lempert R O 1993 Civil juries and complex cases: taking stock after twelve years. In: Litan R (ed.) Verdict: Assessing the Civil Jury System. Brookings Institute, Washington, DC
13. Lloyd-Bostock S, Thomas C 1999 Decline of the ‘Little Parliament’: juries and jury reform in England and Wales. Law and Contemporary Problems 62: 7–40
14. MacCoun R J 1989 Experimental research on jury decision making. Science 244: 1046–50
15. Munsterman G T, Munsterman J T 1986 The search for jury representativeness. Justice System Journal 11: 59–78
16. Pennington N, Hastie R 1986 Evidence evaluation in complex decision making. Journal of Personality & Social Psychology 51: 242–58
17. Saks M J, Marti M W 1997 A meta-analysis of the effect of jury size. Law and Human Behavior 21: 451–67
18. Sandys M, Dillehay R 1995 First-ballot votes, predeliberation dispositions, and final verdicts in jury trials. Law and Human Behavior 19: 175–95
19. Smith V L, Studebaker C A 1996 What do you expect?: The influence of people’s prior knowledge on crime categories on fact-finding. Law and Human Behavior 20: 517–32
20. Thaman S 1999 Europe’s new jury systems: the cases of Spain and Russia. Law and Contemporary Problems 62: 233–59
21. Vidmar N 1995 Medical Malpractice and the American Jury: Confronting the Myths about Jury Incompetence, Deep Pockets, and Outrageous Damage Awards. University of Michigan Press, Ann Arbor, MI