When creating the story of a hero, three things are generally needed:
1) A righteous cause that we can get behind;
2) An individual who is facing seemingly insurmountable odds; and
3) A hard-fought struggle, that may or may not end with success.
This formula is imbedded in the human consciousness and can be traced back to the times of Homer and Plato. Once you start looking for it, a familiar story structure begins to appear everywhere (from Spartacus to Serpico to Twelve Angry Men). It’s no wonder that when we think of a hung jury, many of us assume that there was one person who heroically refused to abandon their convictions and submit to the will of the collective. (This is an especially common caricature in death penalty cases with hung juries.)
Certainly, a brief review of the media reports about deliberation deadlocks supports this gut feeling. While not always portrayed as heroes, the jury holdouts are often painted as victims of the group. Some examples include:
One Juror Between Terrorist and Death
Holdout Jurors Can Put Legal System to the Test
Save the Holdout Juror from the Internet
However, jury research suggests that “a Holdout” is often less of “a Lone Hero” and more of “a Captain going down with the ship.” I cited the National Center for State Courts project in Part One of this series because it is a fantastic resource on hung juries. While it’s true that the project depended on an amalgam of sporadic studies over the last 50 years, its research corroborates the suggestion that hung juries often begin with a split group that is whittled down to one or two holdouts.
Kalven and Zeisel (The American Jury) performed extensive research on splits during their historic work in 1960s and 70s. They discovered that hung juries typically give much weaker ratings to the “power of the evidence” and the “clarity of the law” than unanimous juries. When calculating rating strength, the jurors’ scores were set to a baseline of comparison with ratings provided by the judges and attorneys involved the case. In other words, juries were more likely to be hung when they started out unsure and when there was one person in the group who refused to move off of their initial (often weak) position.
Additionally, hung juries are more common in deliberations that begin with a “verdict-driven” approach as opposed to an “evidence-driven” approach (see Inside the Jury). It is important to note that if individuals avoid locking into a position early, the group is more likely to find consensus. I find it a sobering thought that something as simple as instructing jurors not to start off with a verdict polling could have such dramatic effects on group cohesion.
Not surprisingly, the story of “the Holdout” becomes less compelling when it is framed as one stubborn goat who can’t concede to a verdict that everyone else has agreed on. With apologies to all you “rebels” out there, research shows that a group of people is often better at decision-making than an individual. Blinder and Morgan demonstrated this in Are Two Heads Better Than One? For every Einstein or Copernicus out there who is ready to prove us wrong and shift our paradigm, there are a thousand crazies who are adamant that aluminum foil is the best defense against mind control. (Everyone knows this is an urban legend, anything less than a titanium alloy is useless.)
The research suggests that holdouts typically thrive in confusion. However, these obstinate individuals are made far less powerful when a case presentation is able to arm more rational jurors with the themes necessary for a fruitful deliberation.
In the next installment, I will examine the mind of the holdout and methods of spotting them.
Blogger: Matt McCusker
PART 1: HOW THE FRENCH’S SHOCKING BEHAVIOR RELATES TO JURY DYNAMICS
