One of my main academic interests is jury research. Today, I thought I’d sit down and write informally about the state of our understanding of how juries operate. I’m not aiming to make any particular arguments or to use this as a primer on jury research so excuse the lack of prolific citation to journal articles here. However, I do hope to pass along a general sense of what we do and don’t know and how we’ve reached this point.
I. HISTORICAL BACKGROUND
First and foremost, it is important to note that there have been a variety of different fields that have undertaken the task of understanding American juries. I personally categorize them into three groups: (1) descriptive, (2) normative, and (3) pragmatic. Researchers in the descriptive category have primarily been psychologists and sociologists; academics trying to investigate the jury institution as an aspect of the individual and social existence. The next group of persons is normative because these researchers usually are doing research for the sake of making a policy argument. Typically, researchers in this field find their home in the legal field (e.g. law professors, public interest groups, etc…). These people have concerns about how effective some aspect of the jury system is and perform studies to test how legitimate said concerns may be. Finally, there is the field of pragmatic research. Unlike the first two categories, which attempt to discover findings that can be generalized, pragmatic research is usually pinpointed to a particular case. Those inside of the legal profession probably are already quite aware of consulting firms that aim to assist lawyers in picking the best possible jury for a trial. These consultants will seek to analyze a potential jury pool and build a profile of jurors that may be favorable to a defense or plaintiff/prosecution team. They may also put together mock juries and help a legal team assess what aspects of their case could play out well and which aspects they may want to adjust. Jury consulting firms such as National Jury Project and Keene Trial Consulting are just two examples of this type of research.
Naturally, the pragmatic research isn’t easily available to the public since it’s too fractured, case-specific, and—most importantly—subject to work-product privilege. Descriptive and normative research is readily accessible however. Here is a bit of history on how it has developed.
A. The Chicago Jury Project and its Progeny
I’m sure there were researchers studying juries before the Chicago Jury Project but it was this research project that really put jury research on the map. Social scientists and legal scholars at my alma mater University of Chicago performed a number of studies in the 1950s examining jurors. The one that has always stuck with me, and that I think made the biggest impact, was a studying showing that judges and jurors reached the same verdict a majority of the time. This contradicted the presumption that jurors lacked the necessary legal training to come to effectively arrive at an accurate verdict.
In the decades following the Chicago Jury Project, researchers in the economic and statistical fields set down to do what they do best: model things. They tried to create formal, mathematical models of how jurors would behave and published these in peer-reviewed, academic journals. Things were swell.
B. Enter Psychologists
Starting in the late ‘80s, juries began to see the psychologist treatment. Researchers began to start publishing behavioral studies. Such work covered areas as differences in male and female jurors, how jurors take cues from the presiding judge in a trial, how race of jurors and of the parties to suit matters, etc… The psychological treatment, as I term it, called into question how psychological tendencies affect a trial’s outcome. Researchers such as Nancy Pennington, Reid Hastie, Neil Vidmar, Steven Penrod, and many others have helped build the body of empirical evidence we currently have on how juries operate. For a great introductory book into modern jury research, check out: Inside the Jury.
Along with this behavioral research movement came research by legal scholars arguing for changes in how juries operate. Continuing questions that policy advocates rightly bring up are: how does racial bias affects juries, how capable are juries of handling cases involving lots of expert testimony, to what extent do juries understand/regard the instructions read to them by the judge at the end of trial, is the number of jurors important to a just trial outcome, so forth and so on. These inquiries continue to drive research even today.
C. Recent Trends & Developments
One of the more major developments in the field of jury research has occurred thanks to the State of Arizona. In the past, studying juries was always a game of approximation. We could conduct mock trials and we could interview jurors after a trial but when it came to observing the juror in action (deliberating during trial) we were empty-handed. Not surprisingly, most local and state governments haven’t been keen on the idea of letting psychologists or other researchers come in and record what jurors are doing. Indeed, the secrecy of the jury has often been touted as a major selling-point: a jury was free to sit down and tackle tough cases without fear of public criticism regarding their performance. Beyond that, concerns that jurors in the criminal context might even receive threats if someone learned that they had been pushing for a conviction was a strong incentive for keeping jury deliberations off the record. However, Arizona boldly went where few have gone and agreed to let researchers in to see how jurors deal with actual trials. Neil Vidmar and Shari Diamond have been putting out findings since early 2000 on data collected in this project. Opportunities like this one give us a wonderful chance to conduct research that is not only empirical but also has strong external validity. I would personally hope that other jurisdictions start allowing for this similar method of research as it would provide for a previously-unavailable way of analyzing how juries differ across the United States.
II. WHAT WE KNOW
With over sixty years of solid research, one might properly ask what we’ve learned? The answer is a lot…sort of. I say “sort of” since most of this work has been based on experimental designs aiming to approximate the jury experience and I, as well as many others, have concerns about how generalizable these findings are to real courtroom experiences. With that caveat, here are just a few of the things we know.
A. Demographics Matter
Maybe they shouldn’t. Maybe justice should be blind to color, age, gender, and the like. But juries, at least, aren’t. Numerous studies by researchers such as Nancy King have provided evidence that the racial composition of juries as well as the racial identity of parties to a suit can have an impact on outcomes. I doubt this really comes as a surprise yet sometimes formal data is necessary just to verify what we know intuitively.
B. Jurors Don’t Think Like Lawyers
This is, again, probably not much of a surprise. After all, juries usually don’t have lawyers on them (though I’ve known a few friends who have had to serve jury duty despite being lawyers). One example is a somewhat-debated model proposed by Reid Hastie and his colleagues in the ‘90s suggests that jurors follow a “Story Model” and weigh the evidence by trying to put together a cohesive story of the events discussed at trial. One may or may not feel that this conflicts with how a legally-trained mind would analyze the facts— that gets into a question of jurisprudence philosophy that I will set aside for now.
C. Jurors Don’t Disregard Inadmissible Evidence
If you’ve ever suspected that juries don’t follow a judge’s orders to disregard inadmissible testimony, you’re right. While not a universal rule, jurors do tend to discuss and deliberate information that was stricken or ruled inadmissible. And indeed, this is why you will often see a skilled trial attorney ask a question (s)he knows will elicit an objection. Even if something is ruled as inadmissible, getting it into the jury’s consciousness may be enough to do the trick— a fact that continuous to infuriate wide-eyed idealists.
D. Politics Matters
In my own research, I’ve found the most consistent predictor of conviction rates is a person’s political ideology. The more conservative you are, the more likely you will be to convict someone. This trend is so stable that, even if I don’t know any other fact about you, I can rather confidently predict how you’ll come down on criminal cases…at least cases where reasonable minds can differ. In my scholarly writing, which I’m happy to share with those interested in it, I’ve suggested a number of reasons for this phenomenon. I think a lot of it has to do with differences of philosophy in the underlying goals of a criminal system: is it for the sake of retribution or for the sake of public safety? Those with the eye-for-an-eye philosophy are much more likely to support conviction and lengthy prison sentences.
E. Not All Hope Is Lost
Despite all of these characteristics suggesting jurors may not be models of legal reasoning, many researchers have provided evidence that we may be worrying needlessly. Many jurors take their roles quite seriously and try to pursue justice. Even in my own interviews with people who have served on juries, I’ve gotten the feeling that there is a general respect for the institution and belief in it. Of course jurors will not be paragons of legal reasoning yet that’s not their job. A juror is a fact-finder, not a judge of law. As an underlying policy, the legal system presumes that the people most suited to trying and finding facts are peers of a defendant and not legal minds. To that end, jurors are doing their jobs quite well.
III. MY RESEARCH
My own interests are a blend of all three categories I described supra. As a researcher and academic, I’m always looking to see what psychological mechanisms are helpful to promoting just outcomes in trials. As a soon-to-be lawyer with a passion for trial advocacy, I’m also interested to see what helps and what hurts a case. I feel that there are still several areas of jury research that remained under-researched. To that end I have attempted to investigate them. For example, I’m particularly fascinated by juror decision-making at the individual level and what impacts the jury (as a group) has on the individual in coming to an informed decision as a fact-finder. The effects that a group can have on the individual is a thoroughly researched aspect of social psychology and it only makes sense that other jurors impact how we process and evaluate evidence presented at trial. Nevertheless, research on this area is sparse and I’m interested in exploring how the individual juror goes about processing a trial.
Another area that I’m hoping to research in the future speaks to differences in region and population density. I’ve long been fascinated by how rural-urban divides and geographic divides (e.g. Northeast vs. West Coast) affect politics and would love to examine how this plays out in the legal system. Admittedly, studying this is complicated by procedural and substantive differences in the law from one jurisdiction to another. Nevertheless, it is definitely an under-explored aspect of research in academia that needs elucidation.
Finally, I would also like to examine the importance of specific allegations more thoroughly. By this, I mean the type of crime a defendant is charged with or the type of civil liability a defendant faces. It seems more than reasonable to believe that jurors may be more biased against defendants charged with sex crimes or with sexual harassment than with those alleged of something like trespass or possessing marijuana. It seems to me that the more severe and or morally reprehensible an allegation is, the more a juror may be biased. These are points in the literature that have little evidence, however. Hopefully at some point, I’ll have a chance to explore them and perhaps author some research of my own on them.
IV. CONCLUDING REMARKS
Few legal institutions are as iconic as the jury. We see it in movies, in television shows, in books…. and even though fewer and fewer cases go to trial these days, we prepare cases with the end possibility that a group of jurors will be evaluating our legal claims and making decisions about how strong our evidence is. As such, understanding the mechanisms that drive jurors and juries is a crucial part of being an effective litigator as well as being, more generally, an enlightened member of society. Research runs from the purely academic to the purely practical, from investigations into the juror as a member of society to investigations of what will win a particular case. These differing approaches have all shown one thing if nothing else: the jury as a concept is an incredibly flexible and hard-to-pin-down target. Because the composition of a jury changes from trial to trial, city to city, state to state, etc…. we have a very difficult time in describing what the American jury looks like and how the American jury acts. A better approach is to explore how we as people operate and how these psychological mechanisms carry over to the legal world. This latter approach is one that I’m excited to be a part of and hope to continue contributing towards for many years to come!
Hopefully in the next week or so, I’ll have the time to sit down and write a more formal primer on jury research, exploring different methods of conducting research, different aspects of research, and different findings that have substantial evidentiary support. For now though, just a note on the field.
Until next time, Merry Christmas and Happy New Year!