How to Improve The Jury System: New Studies and Suggestions

Several interesting studies done on juries have recently come out: one from America and one from the UK. Let’s start with our neighbors across the pond.

According to the Law Society Gazette (the Law Society is the UK’s equivalent to the American Bar Association…well sort of), a new study from Portsmouth University suggests that jury decision-making would be improved by subdiving jury panels into smaller groups. Specifically, the study finds that people in subdivided groups participated more in jury discussions. The researchers suggest a jury composed of twelve people is “artificially large conversational group that forces too may people into silence.”

In fact, this general discovery isn’t new. We’ve known for some time that large groups tend to subdivide themselves during conversations. In fact, I bet you’ve noticed this yourself. When you’re at a large dinner or with a large group of friends, certain conversation groups form. Perhaps the classic example is a party. You’ve probably been to a party or two with a large number of attendees. Within moments of the party starting, people cluster themselves into discrete groups (typically based on their friendships or similarities). The Portsmouth University study merely provides empirical support for the hypothesis that jurors will participate more if they are not forced into large conversation groups.

There is, of course, a question in my mind about whether this is a good approach. Subdividing jurors may cause each individual to participate more but that, in and of itself, may not buy us much. Jurors need to come to a consensus on a verdict. I would imagine that in the small-group setting, each group may come to a consensus (or maybe not!) and then those groups would have to resolve differences between each other’s determinations. At that point, members of the various subgroups will start to debate trial aspects like they would without subdividing into small groups. While the subgroups approach may influence which people contribute to the discussion, I’m not sure it will speed up the process or enhance the accuracy of judicial decision-making. Indeed, I suspect that it might just cause further delay because my hunch is that those who feel strongly about a verdict are inclined to be the talkers (other factors such as gender and age notwithstanding). It follows that those who don’t have strong opinions will talk less. Does it make a whole lot of sense to induce situations encouraging people to talk that don’t have much to say? I’m not sure yet but my inclination is to say no.

While we’re talking about juries and the UK, here’s a sidenote. As this piece from the BBC aptly demonstrates, the problem of jurors contacting parties to a case has reached a new level thanks to social media. As the piece reports, a juror was held in contempt of court because she contacted a co-defendant of a trial (that co-defendant had already been acquitted). That juror now is facing up to two years’ imprisonment for her improper communication. This excerpt demonstrates some of the conversations had on Facebook between the two:

The court heard the initial contact came after Fraill went on the social networking website and tracked down Sewart, saying: “You should know me – I’ve cried with you enough.”

Fraill was said by her lawyer to have felt “considerable empathy” for Sewart as the trial “”gathered in momentum and intensity”.

“Can’t believe they had u on remand,” she said in another one of their conversations, a transcript released by the court shows.

Fraill added she thought she recognised one of the other defendants and when asked by Sewart how the jury was dealing with one of the outstanding charges said: “Cant get anywaone to go either no one budging… don’t say anything cause jamie they could cause miss trial”.

The two continued to talk about the case and used expressions such as “lol” and other internet slang, as well as variants of spelling commonly used in such messages.

Frail also said: “At least then yer all home n dry”.

And Sewart responded: “Ha ha, ur mad. I really appreciate everythin. If i cud of kissed u all i would of done ha ha.”

Now, there are a lot of things that I could say about this incident but what I will say is that this sort of behavior is nothing new. It will certainly become much more obvious and likely more frequent thanks to social media websites but juror misconduct has been happening for years and years and years and years. The constraints of the law in general and a trial in specific are not natural. Our tendency is to consider evidence that is inadmissible, irrelevant, prejudicial, etc… It’s a hard thing to discount things you learn (or could learn) from a decision-making process. This is especially true today when the ability to glean outside information is particularly easy.

Yet this is very dangerous.

In the second study, Christine Ruva and Michelle LeVasseur find that pre-trial publicity can have a profound impact on a juror’s ability to impartially decide a case. The abstract to their article, “Behind closed doors: the effect of pretrial publicity on jury deliberations” reads as follows:

Content analyses of 30 mock-jury deliberations were performed to explore whether pretrial publicity (PTP) affects the content of jury deliberations. The pattern of results suggests that PTP has a powerful effect on jury verdicts and that PTP exposure can influence the interpretation and discussion of trial evidence during deliberations. Jurors who were exposed to negative PTP (anti-defendant) were significantly more likely than their non-exposed counterparts to discuss ambiguous trial facts in a manner that supported the prosecution’s case, but rarely discussed them in a manner that supported the defense’s case. This study also found that PTP exposed jurors were either unwilling or unable to adhere to instructions admonishing them not to discuss PTP and rarely corrected jury members who mentioned PTP. Finally, this research provides insight into how PTP imparts its biasing effect on jury decision making.

Breaking it down, their findings suggest that jurors who came across negative news about a defendant were more likely to interpret ambiguities in a trial in favor of the prosecution and thus were more likely to convict a defendant. Perhaps more concerning on a fundamental level: they were discussing pre-trial publicity in the first place. Now, I haven’t had a chance to read the full-text article so there may be aspects of the study that would merit discussion (e.g. how the mock trials were conducted, what constitutes an ‘ambiguity’ for their purposes, what types of crimes were introduced, etc…) yet the general finding seems intuitively correct based upon other research showing how easily jurors are influenced by and consider improper evidence.

So, are there any positives to this? And what can we do about the obvious negatives? Well, to start, I think there certainly could be a positive. The power of the jury cuts two ways. Jurors can disregard the constraints of law to the detriment or the benefit of an accused person. So, to some extent, the impunity a jury receives might be used to good in instances where news suggested the wrong person was being prosecuted or that the law dictates an unjust result.

Nevertheless, it’s no argument to say that, because something can be used for good, we should feel comfortable ignoring the potential evils of it. In the same way that a bad person doing a good thing has not automatically become a good person, a jury inclined to presume guilt does not automatically ensure justice merely because they can sometimes presume innocence. Naturally, we should seek out ways to improve how juries operate.

The question becomes, however, at what cost? For example, the problem of pretrial publicity has been dealt with in other countries. One particular example is France. As the media frenzy of Dominque Strauss-Kahn’s arrest and “perp walk” has brought to light, the French do not allow the media to publish photographs of accused persons in handcuffs because of the very pre-trial problems highlighted above. But would that ever be appropriate in America? Except to the extent that you cannot use free speech to cause actual harm to someone (e.g. yelling fire in a crowded theater), the 1st amend. squarely protects reporters’ and news agencies’ ability to report the news. To the extent that someone spreads false information about a person which causes harm, there may be a civil action for defamation / libel…but the classic defense is always “what I said was true.” When the media show pictures of defendants, report on case developments, and the like, they are naturally very careful to say words such as “alleged” and “being charged” to indicate that there is no determination of guilt. On their end, they’re dotting their Is and crossing their Ts. And passing legislation to reduce the legality of publicizing information about a defendant seems flagrantly unconstitutional.

Nor would it solve the problem. News coverage makes the problem of rumor and gossip more acute and widespread, but it doesn’t start there. People will talk. As the story of the British juror illustrates, the accountability has to rest not on the media or gossipers but the jurors. After all, they are the ones with a duty and they are the ones who should be performing that duty correctly. How to make them take that duty seriously is the true problem to be solved. I can’t say I have the answer but these are some ideas that I think would be interesting to test. First, we might consider paying jurors more money … a lot more. A sure-fire way to make people take something seriously is to make it seem like a big deal. If the mindset/attitude about serving on a jury was changed, then people may show more deference. This is unlikely to work in practice, however, due to the fact that money doesn’t grow on trees. With debt and financial insecurity as it is, we need other ideas.

To that end, I suggest better education needs to happen about the legal system. I’m not all that old and I can remember elementary school. I can remember junior high and high school as well. At no point was the legal system given the same treatment in my studies as the legislative branch or the executive branch. As one of my family members told me once, “Nobody ever teaches you this stuff [about the law] in school.” That family member is right. And I suggest that if people truly understood the legal system better, they would be better jurors.

Also, I think it would be helpful to hold jurors somewhat more accountable. The secrecy of the jury room is important—to an extent. I think it would be beneficial to have jurors’ deliberations recorded and transcribed anonymously. Such transcripts would be available only for the purposes of appeal and collateral attack in order to determine if the jury misapplied law. The transcripts would not be available to the public; just to the parties and the judges involved in the litigation. This would maintain anonymity while allowing flagrant misapplication of or disregard for the law to be corrected. A less invasive way of doing the same thing would be to require the jurors to fill out anonymous explanation sheets detailing why they find the evidence suggests culpability (or why it doesn’t). Are these perfect solutions? Of course not. Are there others that might improve the jury system? Yes. But these are some steps I think certainly couldn’t hurt.

The jury system is an old tradition, predating England’s Magna Carta. The ideal of providing checks and balances in the legal system and allowing fair trial by peers is noble. But as the studies and news above make clear, there can be a break down between ideal and real, desired and achieved. Research like that above is an important first step in improving how juries make decisions but it would be nice begin implementing some of these suggestions in actual court rooms. Piloting different suggestions is going to be necessary before we can make actual progress. Some places (e.g. Arizona) have played with this idea but most jurisdictions face too much inertia and too much red tape to follow suit. That’s a real shame; one perhaps time will change.

Yet until then, we should keep these finding in mind. After all, one day we might well be jurors ourselves. And make no mistake, if or when that day comes, achieving justice in a jury room will be a battle—these studies make that clear. It will be a battle against our tendencies and behavioral predispositions. Yet, I can’t imagine being armed with a better weapon to combat our bias than knowing about that bias because, as people often say, knowing is half the battle.

-Zachary Cloud

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