The Implications: The Jury: Pandora's Box?

A jury trial is a display of "apparent foolishness in asking the ignorant to use the incomprehensible to decide the unknowable."
- A. Basdekis, Yale Law Journal

Add to the mix media influence, racial inequality, and any number of other concerns, and Basekis isn't the only one who has lost faith in the jury system. We have enough examples of people that the justice system has failed (like West Memphis, Dobie Williams, Joseph O'Dell, Earl Washington, Mario Marquez), some of them losing a life or over a decade of their lives as a result, that I for one am left to scream for reform. But lest we falsely condemn juries as inadequate after a few questionable verdicts, how many of these preconceptions about juries have been backed up by research?

The debate surrounding the use of juries for conviction or sentencing of criminal cases or deciding rewards in civil cases revolves around several common assumptions about juries as laid out by Shari Diamond in December of this past year, published in the Buffalo Law Review Journal. Some of these have been backed up by research and I thought that it would be helpful to discuss those here.

Many people assume that juries will favor the plaintiff in tort cases (civil cases) – either compensating them for injuries which many not be the fault of the defendant or over-compensating to make a point. Research however has found that plaintiff's win about half of tort cases ranging anywhere from 26% of medical malpractice cases to 69% of animal attack cases. Research does show that juries tend to overcompensate - they award 20% more on average than a judge would have.

As a side note, sometimes there are discrepancies between civil cases and criminal cases because of this as in the OJ Simpson trial - though a criminal jury returned a non-guilty verdict, a civil jury later found him financially culpable for his wife’s death and awarded the Goldman family $8.5 million dollars in compensation.

Shari Diamond found that more affluent people believe that the jury is made up of those too stupid to get out of jury duty and therefore they aren't being tried by a jury of their peers. This claim is actually refuted by research. She also discovered that less educated members of society believe that the more educated dominate the justice system in every way. Because the master list of voters (which jurors are pooled from) is only updated every four years and minorities, less educated citizens, and younger voters tend to move around more than other categories of citizens, they are more likely to be under-represented in a jury. The same groups are also more likely to be given a pass on jury duty because of financial difficulties.

The belief that an attorney's right to peremptory challenge (right to excuse a limited number of jurors for any reason whatsoever) results in juries low in diversity is unfounded. After the Supreme court ruled that challenges based on race or sex are unconstitutional, studies have shown that the makeup of a jury doesn't change much from the makeup of those who are summoned for duty in the first place (this includes race, gender, occupation and background).

Once on the jury, some members are definitely more influential than others. The Chicago Jury Project in the 1950s found that men of the upper-class tend to do most of the talking during jury deliberations (James, 1959). The same study also found that three jurors dominated over half of the talking time. However, in the 1950s juries were made up predominantly of white men and since then the Jury Selection and Service Act of 1968 mandated that "jury pools include all eligible voters." Nowadays, people from groups who have been "historically advantaged" have more influence during deliberations because other jurors assume that they are more equipped to make such decisions. Some relatively recent studies have found that men talk more frequently than women in the jury room and higher status members tend to talk more than lower status members (Kirchmeyer, 1993). A study in the 60s determined that forepeople are twice as likely to be dubbed an influential person during deliberations by other jury members. Knowing all this, would reforms aimed toward farther increasing the diversity of the jury really help anything at all? Which leads us to our next, perhaps false, idealistic assumption as put by Erin York and Benjamin Cornwell of the University of Chicago:

"A representative jury is assumed to draw on the group's diverse perspectives, while overlooking the external status differentials that make the group diverse."

Several sociology studies have shown that all small groups of people have tendencies to distribute influence unevenly among them for various reasons. These tendencies referred to include preferring the tall to the short, men to women, the upper class to lower class, etc. in leadership positions. (In other words, any number of superficial factors would make certain members of the jury more influential than others during deliberations.)

The fact that much research regarding juries and what impacts their decisions is outdated becomes a point of dissension in the debate regarding them and how they might improve and so conducting more research on topics like how juries actually reach a decision would be extremely helpful to the debate. I mean, whose to say that three jurors out of a dozen still dominate discussions about conviction if the last study confirming that was in the 50s?

Irregardless, it seems as if it simply should be recognized by all that the idea of a jury as a diverse group of people that can somehow work together without being unduly influenced by any one member is simply impossible. There goes that ideal. And if a jury isn't able to capitalize on being an "impartial jury of peers" then there is no point whatsoever in using a jury to decide cases - except a smoke screen.