I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.
Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”
Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent. Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well … pulled a MacGyver.
Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room. He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)
However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free. Here is an example of his case theory: “Well, Foster SAID he didn't do it. Are you calling him ... AND his attorney ... LIARS?"
If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness. I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience.
While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:
1) Watch the Talkers: A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked. It is easy to sit quietly when supporting the majority in a deliberation. The holdouts are often required to argue and explain why they won’t go along with the group. During voir dire, make a note of the people who like to talk.
2) Strong Houses Rest on Solid Foundations: Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs. Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).
3) Agree to Disagree: There are some people who just like to argue. They will often place the thrill of debate in front of the search for justice. Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:
a. Debating with attorneys or other jurors during Q&A;
b. Whispering jokes in the back of the courtroom;
c. Angrily staring at you with the “evil eye”; and
d. Giving curt answers that are obviously intended to send you a message.
4) Step One - Read Instructions: A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence. While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.
*A Caveat: Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony. The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.
I end this post as it began, with another reference to a famous holdout juror. Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman. In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY! Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor juror because he was, in fact, Batman. As would be expected, everyone laughed but him, the holdout.
Blogger: Matt McCusker
(BTW, feel free to post comments with other famous juror holdouts.)
