Egyptologists have King Tut's tomb. Anthropologists have Olduvai Gorge. Those interested in juries have the Arizona Jury Project. Like those other troves of information, the Arizona Jury Project's lessons keep coming long after its initial "discovery." Most recently, the project's data has been compiled to tell us what really happens when juries aren't required to be unanimous.
What changes in the jury room when unanimity isn't required?
It's a perennial question, appearing in thoughtful musings at sites like PrawfsBlawg and in major research projects like the National Center for State Courts's 2002 paper, "Are Hung Juries A Problem?", led by prominent researchers Paula Hannaford-Agor and Valerie Hans. The ABA addressed the unanimity issue in its 2005 "Principles for Juries and Jury Trials," recommending that “In civil cases, jury decisions should be unanimous wherever feasible.”
The problem has always been that we have more curiosity than data. "[B]oth scholars and courts have been hampered by a lack of information about how juries deliberate when jurors are permitted to reach nonunanimous verdicts," explain Shari Seidman Diamond, Beth Murphy, and Mary Rose in their new paper, "Revisiting The Unanimity Requirement: The Behavior Of The Non-Unanimous Civil Jury," in the Northwestern Law Review. (The cite is 100 Northwestern U. Law Rev. 201-230; SSRN has the abstract, and an unofficial version available for download, here.) "Until recently," Diamond and her colleagues continue, "all empirical research on non-unanimous jury decisionmaking consisted of laboratory experiments and post-trial juror surveys, conducted almost exclusively on criminal trials."
Real juries, real data
Until the Arizona Jury Project. Arizona was testing a new rule allowing jurors to discuss the case before deliberations formally began. To understand the rule's impact, the Arizona Supreme Court allowed Prof. Diamond and Duke professor Neil Vidmar to videotape deliberations in fifty actual civil trials between 1998 and 2001. The resulting hours of tape showed how the discussion rule worked in practice -- and in the process, illuminated dozens of other facets of real juries and how they work.
Since it takes only six of eight jurors to reach a civil verdict in Arizona, one of the things the researchers got to watch is how a non-unanimous jury really operates. That's the issue Diamond, Rose, and Murphy address in the new Northwestern paper. They watched, and recount, real moments like this:
Juror #6 (foreperson to the bailiff): I have a question, a procedural question. If one juror disagrees with the others, does that person have to stay? We have enough of a consensus for a verdict, but we’re arguing on some points, but there’s one person who didn’t agree with the verdict that we came to a consensus with. Does that person have to stay or can he be excused or do we all have to be here?
[The bailiff confirms that the juror will stay and then leaves the jury room]:
Juror #6 [to Juror #4]: All right, no offense, but we are going to ignore you.
Conclusions
Diamond and her colleagues list these conclusions from the data:
Non-unanimous juries don't rush to judgment. "[J]uries generally engage in extensive debate on the issues."
But holdouts, as might be expected, can lose their voice: "[J]urors are quite conscious that they need not resolve all of their disagreement to reach a verdict. This awareness in some instances translates into dismissive treatment of minority jurors ('holdouts') who are not required to produce the requisite quorum."
The disenfranchised holdouts aren't all on the same side: "We . . . find no evidence that the outvoted holdouts are more likely to favor the plaintiff or the defendant, although the jury’s task is particularly awkward when the holdout opposes liability and the jury must decide on damages."
And the holdouts aren't, as fable would have it, wacky eccentrics we ought to be ignoring: "Further, we find no evidence that these outvoted holdouts are irrational or eccentric in ways that justify isolating them or failing to seriously consider their views."
A unanimous verdict seems to be more satisfying for the jurors themselves: "[Q]uestionnaire data reveal that both outvoted holdouts and majority jurors are less positive about their juries than jurors who reach unanimous verdicts, giving lower assessments of their jury’s thoroughness and the open-mindedness of their fellow jurors."
Reviewing it all (and extensively reviewing the prior literature), the authors favor unanimity:
[A] slight increase in hung juries and the potential for a longer deliberation may be costs outweighed by the benefits of a tool that can stimulate robust debate and potentially decrease the likelihood of an anomalous verdict.
It matters
However you come out on this, we know the issue matters. Juan Luna, recently convicted of a mass killing at a fast food restaurant in Illinois, won't be executed for the crime, solely because a single juror last week refused to vote for the death penalty. The work done by Diamond and her fellow authors contributes not only to scholarship but to our stewardship of the jury system itself.
(Photo by Kirsty Andrews at http://www.flickr.com/photos/sleep_guitarist/292992375/; license details there)
