Last week, TV viewers in France saw a replication of Stanley Milgram’s shocking 1963 experiment with a 21st century twist: Reality TV. Much like the original version, participants on "The Game of Death" were asked to progressively increase the voltage of electric shocks administered as punishment to an unknown person. The recipient of the shock was obscured from vision, but the screams of pain were clearly audible (and eventually ceased due to supposed unconsciousness or death). Unbeknownst to the shockers, the shockee was an actor who was faking it.
The 80 contestants (shockers) were told that this was a pilot game show, so there was no money to be won. Everyone was asked to sign releases indicating that they would be willing to shock another person for incorrect answers. Unlike Milgram’s study, this whole process was being conducted in front of TV cameras, a very enthusiastic live studio audience and directed by an eager game show host.
Those who know Milgram’s work will not be surprised with the results: 80% of the contestants went “all the way” and shocked the man into unconsciousness. However, as a jury consultant, I am more interested in the 16 people who said “No!” and ceased pushing the button. The people who went against the group, despite intense social pressure to do otherwise. In the legal world, we call these people “The Holdouts.”
This blog series will examine “Hung Juries” and “Holdouts” in three parts:
1) Hung Juries and NFL Ties: Both are Unsatisfying and Rare
2) “Can’t We All Just Get Along?”: How Juries Get “Hung”
3) A Peek into the Mind of a “Holdout Juror”
(Part 1) “Hung Juries” and NFL Overtimes: Both are Unsatisfying and Rare
As terrible as a loss feels, ending in a tie (or being forced into a redo) can sometimes feel worse. Granted, this depends heavily on your goals (excuse the pun). Some criminal defendants and winless NFL teams ('82 Colts) may see a tie as a victory. However for many, a draw is synonymous with a wasted effort. Given the emotions involved, a hung jury can often epitomize this feeling.
How often do hung juries occur? Due to a lack of access to state court records, there have been a limited number of studies investigating the percentage of “hung juries” (and most have been in the criminal arena). Research has suggested rates varying from 1% to 12%. Much of this variability is based on jurisdictional changes and differing working definition of “hung” (one count, all counts, the most serious count, etc.).
The National Center for State Courts (NCSC) completed an ambitious account of hung juries in 2003. Data on Federal civil and criminal cases provided by the Administrative Office of the U.S. Courts (1980 to 1997) suggested a very low, consistent and stable hung jury rate. Over the seventeen year span, Federal civil juries were hung less than 1% of the time and Federal criminal juries less than 3%.
Data collected from State criminal courts in 1996-1998 by the NCSC was very different. These numbers suggested a much higher hung jury rate and significant variability. While the national average calculated was 6.2% (over 30 counties in 13 states), the percentages ranged from a low of 0.1% in Pierce County, WA to a high of 14.8% in Los Angeles County, CA. To throw more confusion into the mix, an analysis of all 62 counties in the State of New York found an average hung jury rate of 2.8%.
I know percentages can be misleading, but this data confirms our belief that hung juries are rare. This begs the question: What causes these rare occasions when agreement is impossible to find? Jeffrey Rosen wrote a piece in The New Yorker ("One Angry Woman: Why Are Hung Juries on the Rise?") suggesting racial divides were the primary root of jury nullification (a popular theory). Part 2 of this series looks at this and other theories/research investigating why juries hang.
Look for the next installment, (Part 2) “Can’t We All Just Get Along?”: How Juries Get Hung, to arrive within the next week.
Blogger: Matt McCusker