“Importance Of The Jury” Please Respond To The Following:

  • Discuss two (2) emotions that the symbol of Justitia (in Figure 7.1 in Chapter 7 of your textbook) invokes in you regarding the notion of justice. Support or criticize the common statement “justice is blind.” Justify your position.
  • Use the Internet or Strayer Library to research one (1) case in which a grand jury was convened from your home state, and one (1) case in which a petit jury was convened from your home state. Next, explain the major distinctions between the two (2) cases you chose. Finally, compare and contrast the fundamental differences in size and function between a grand jury and a petit jury.


    Chapter 7


    In this chapter, we examine the psychology of juries. Juries represent one form of legal decision making , which is the process of using procedural and substantive law to settle disputes heard in public forums. We begin by discussing the nature of legal decision making, identifying its unique fea- tures, differentiating it from other types of decision making, and consider- ing various contexts in which it is used. We then focus in detail on juries, discussing the law and reviewing the research to gain a better understand- ing of how they are formed and how they function.

    In this chapter, you will become familiar with:

    The defi nition of legal decision making The various contexts in which legal decision making takes place The unique characteristics of juries as legal decision makers The difference between grand and petit (trial) juries The basic structure and functions of petit juries The different models of jury decision making The process of juror selection

    • • • • • • •


    In a story that quickly garnered national media attention in the United States, 27 – year – old Laci Peterson was reported missing from her Modesto, California home by her husband, Scott Peterson, on December 24, 2002. What made the case so compelling was not that Laci went missing on Christmas Eve, but that she was


    c07.indd 173c07.indd 173 11/3/09 5:43:05 PM11/3/09 5:43:05 PM

    C o p y r i g h t 2 0 1 0 . W i l e y .

    A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

    EBSCO Publishing : eBook Collection (EBSCOhost) – printed on 5/9/2020 12:18 PM via STRAYER UNIVERSITY AN: 309009 ; Roesch, Ronald, Hart, Stephen D., Zapf, Patricia A..; Forensic Psychology and Law Account: strayer.main.eds-live

    174 Juries and Legal Decision Making

    eight months pregnant at the time. Police searched in vain for Laci for several months. Scott, supported by Laci ’ s family and friends, spoke about the case at sev- eral press conferences.

    Investigators eventually focused on Scott as a potential suspect based on several reasons. First, his statements contained inconsistencies about what was he was doing when his wife disappeared. Initially, he had reported that he was golfi ng but later maintained that he had been fi shing. A second reason was the revelation that he had been having extramarital affairs. The third reason was that one of the women with whom Scott had an affair came forward and gave damning information to police. She said Scott told her about two weeks before Laci disappeared that he had recently lost his wife and would be spending Christmas alone. During the Christmas holidays, Scott phoned her, claiming to be on vacation in Paris when he was actually attending a candlelight vigil for Laci, who was still missing at the time.

    In April 2002, the body of the Peterson ’ s unborn child, already named Conner, was found only a few miles from the place where Scott said he had gone fi sh- ing the day Laci went missing. Laci ’ s body was recovered close by the next day. Autopsy could not determine a specifi c cause of death for Laci, but did reveal she had suffered broken ribs prior to her death that could not be explained by acciden- tal drowning. The only other piece of forensic evidence was the discovery of one of Laci ’ s hairs on a pair of pliers in Scott ’ s toolbox. Despite the lack of evidence tying Scott directly to Laci ’ s disappearance, police arrested him on April 18, 2002, and charged him with her murder and the murder of his unborn son. At the time of his arrest, Scott ’ s physical appearance had changed — he had dyed his hair and goatee — and he also had in his possession various articles (e.g., camping equip- ment, various credit cards and driver ’ s licenses) that gave rise to suspicion he was intending to fl ee or go into hiding.

    Media coverage of the Peterson case became even more intense, and public sen- timent toward Scott grew increasingly negative. As the time for trial approached, a change of venue was ordered from Modesto to Redwood City. This was an attempt to increase the chances of selecting an unbiased jury. But after a jury was selected and the trial of People of the State of California vs. Scott Peterson started in June 2004, problems with the jury became apparent. During the trial itself, one juror was dismissed and replaced by an alternate after being seen exchanging words with Laci Peterson ’ s older brother. Later, only four days after the start of deliberation, the jury foreman approached the judge and asked to be dismissed, citing problems getting along with other jurors who felt he was too controlling. The request was denied by the judge who admonished the jury and instructed it to resume delib- erations. Then, a second juror was dismissed for misconduct and replaced by an alternate, after the juror admitted she had gathered her own evidence outside the court. When the jury learned they would need to start deliberations all over again, they also voted for a new foreman; this led to the dismissal of the previous foreman (at his request) and the appointment of yet another alternate. After only seven hours of deliberation, the reconstituted jury — satisfi ed with the circumstan- tial evidence presented by the prosecution and unconvinced by the defense theory that someone else was responsible for the murders — voted unanimously to convict Scott Peterson of fi rst – degree murder with special circumstances in the death of Laci and second – degree murder in the death of his unborn son.

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    Justice is, in essence, the moral correctness, fairness, peace, or harmony of people ’ s collective conduct — how we interact, share resources, respond to disputes and wrong – doing, and repair harm. It is central to our concep- tion of society and civilization. Commonsense notions of justice incorpo- rate three basic elements: fair rules, fair play, and fair outcome. Fair rules means the laws that govern people are explicit, and the same laws apply to everyone. Fair play means that laws are administered and enforced rou- tinely and consistently. Fair outcome means that the net result of the laws and their administration and enforcement is the expected and proper one. This commonsense notion of justice is refl ected in the many representa- tions of Justitia, also known as Lady Justice, which can be found outside courts and other public buildings throughout Europe and the Americas. According to Roman mythology, Justitia ( Iustitia in Latin) was one of the four Virtues, along with Prudence, Fortitude, and Temperance. Justitia embodied the attributes of mythological fi gures from more ancient civili- zations, including the Greek goddesses Themis and Dike, and the Egyptian goddess Ma ’ at. For the Romans, Justitia personifi ed the natural and divine rightness of law; her image has come to personify the moral basis of the legal system throughout the Western world (Capers, 2006). She is often depicted as a bare – breasted or lightly cloaked woman, carrying scales, a sword, and a scroll of laws, and is often blindfolded (see Figure 7.1 ). The

    Legal Decision Making: A Search for Justice 175

    But the jury ’ s work wasn ’ t done. They reconvened a month later for the penalty phase of the trial. They heard evidence and then began deliberations; and once again, the deliberations were diffi cult. For a time the jury was deadlocked, with 10 jurors favoring the death penalty and two favoring life in prison. In an effort to avoid a hung jury, the foreman took several steps, including asking jurors to look once again at photos of the victims and to state their reasons behind their votes. When they took another vote a short time later the result was unanimous, and the jury recommended the death sentence for Peterson.

    After the jury was discharged, jurors fi nally were able to discuss their experi- ences and they eventually published them in the book, We, the Jury: Deciding the Scott Peterson Case (Berattis et al., 2007). Their stories are compelling: learning to cope with the stresses of trial; struggling to decide how the process of delibera- tions should be organized; and dealing with emotions after reaching their verdicts. The story of the Peterson case reveals both the strengths and fl aws of the jury sys- tem, and the book provides a fascinating glimpse inside the private world of the jury itself.

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    176 Juries and Legal Decision Making

    symbolism is clear (Capers, 2006; Luban, 2001). On the one hand, Justitia is a young woman, full of passion and emotion, with the power to nur- ture others out of compassion or strike them down, seeking vengeance. On the other hand, Justitia ’ s powers are limited by the scales, blindfold, and scroll of laws, which force her to carefully listen to and weigh information and follow tradition in reaching an impartial decision.

    Legal decision making seeks justice. Legal decision making is quite different from what can be termed operational decision making by jus- tice professionals, which is the process of using personal knowledge, skills, and abilities to determine the most appropriate course of action in a given situation. First, with respect to the nature of the decision, legal decision making is used to resolve disputes about the interpretation or application of specifi c laws in light of particular circumstances. Disputes about the

    Figure 7.1 Justitia (Lady Justice) Statue of Justitia by John Massey Rhind From Image:JMR-Memphis1.jpg on en.wikipedia photo by Einar Einarsson Kvaran aka Carptrash 19:52, 12 October 2006 (UTC). Permission is granted to copy, distribute and/ or modify this document under the terms of the GNU Free Documentation License, Version 1.2 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts, and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”

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    interpretation and application of law are referred to as matters of law , and legal decision makers dealing with such matters are called triers of law . Disputes about the circumstances of a dispute are referred to as matters of fact , and legal decision makers dealing with matters of this sort are called triers of fact . In contrast, operational decisions involve matters of prac- tice or procedure in which laws and circumstances are not in dispute (e.g., “ What should I do in this situation? ” ). A legal decision may be consid- ered an end in itself, whereas an operational decision is a means to some other end. Second, with respect to the way in which decisions are made, legal decision making is formal (fi xed or structured) and time consuming, whereas operational decision making is often rapid and informal or intui- tive. The process of legal decision making always involves gathering or receiving information, reviewing it, and rendering a decision according to established rules and conventions. The law provides structure concerning the issues to be decided (substantive law) and how they should be decided (substantive and procedural law). The process of operational decisions is highly variable, and decision makers have considerable discretion concerning what information they use and how they use it. Third, with respect to who makes the decision, legal decision making involves people who are appointed and given special powers to make certain decisions, and quite possibly only to make a decision in the case at hand, whereas operational decision making involves people who are expected to make a wide range of practical decisions. Finally, with respect to the situational context of the decision, legal decision making takes place at a predeter- mined time and in a special setting, usually a public building that is dec- orated with offi cial or traditional trappings to underscore its legitimacy, whereas operational decision making occurs whenever and wherever the need arises. Even people who are involved in legal decision making need to make operational decisions on a day – to – day basis throughout the process.

    To make these differences clear, the following are some concrete exam- ples of legal decision making:

    An academic tribunal at a university — comprising representatives of the administration, faculty, and student body — sits to hear the case of a stu- dent accused of cheating on a fi nal exam. The tribunal will hear the evi- dence, determine whether the student violated the university ’ s code of conduct and if so, decide how the student should be punished. An employee believes she has been improperly passed over for promo- tion at work and fi les a grievance against her employer according to her

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    178 Juries and Legal Decision Making

    union ’ s collective bargaining agreement. The grievance will be heard by a board comprising an independent arbitrator and representatives of the employer and the union. They will determine if the grievance is legiti- mate and, if so, how the situation should be remedied. Two men wearing turbans and kirpans (the ceremonial knives worn by baptized members of the Sikh religion) are refused service in a coffee shop. They make a complaint to a human rights commission that they were the victims of religious discrimination. A commissioner will hear the case, decide whether a human rights violation occurred and, if so, determine what remedies are appropriate. A parole board, comprising three members, meets to review the case of an offender who has served 10 years of a 15 – year sentence for kill- ing another man during a bar fi ght. The parole board will hear evidence from the offender and the corrections service, then decide whether the offender is suitable for release and whether special conditions should be put in place. A coroner and fi ve jury members have been convened in coroner ’ s court to review the death of three children who died in a school bus crash. Together, they will decide which witnesses to call, review the evidence presented by the witnesses, determine the cause of death, and then decide whether to make recommendations designed to prevent such incidents in the future. A judge presiding over a civil court hears a case involving two large banks. One bank claims the other bank breached a contract, resulting in a fi nancial loss totaling tens of millions of dollars. The judge will listen to months of evidence from bank offi cials and expert testimony from doz- ens of forensic accountants, then determine whether there was a breach of contract and, if so, how much one bank should pay to the other. A judge and jury sitting in criminal court are hearing the case of a man charged with aggravated assault. The defendant claims he was pro- voked into a fi ght by the alleged victim and, therefore, is not guilty of any wrongdoing. The judge will make sure the prosecutor and defense counsel make arguments and present evidence according to the law and then give instructions to the jury; the jury then will be sequestered to dis- cuss the evidence and reach a verdict concerning the defendant ’ s guilt or innocence.

    The description of legal decision making offered here may give the im- pression that the process is fi xed, neutral, and objective. If so, the impres- sion is mistaken. Although legal decision making differs from operational decision making in many ways, both are intrinsically human. They require

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    people to function as part of a social group to analyze information and develop action plans. To this end, people will use their cognitive, affec- tive, interpersonal, and behavioral functions; and everything they do will be colored by their own attitudes, beliefs, biases, feelings, preferences, relationships, stereotypes, and values. Its dual, confl icting nature — cold and impersonal on the one hand, yet inescapably emotional and personal on the other — is exactly what is captured so beautifully in images of Justitia, and the very thing that makes legal decision making such a fasci- nating topic.


    A jury is a group of people convened to make a legal decision by functioning as a trier of fact. Juries play a role in many legal systems; indeed, the word jury derives from the Latin juris , meaning “ law. ” A person who sits on a jury is called a juror .

    Juries are used in a small minority of legal disputes. The vast major- ity of disputes are decided prior to a trial, either through a plea bargain in criminal matters or a settlement in civil matters. Even legal disputes that proceed to trial are decided primarily by judges or administrative bodies such as tribunals and review boards. Yet juries remain a topic of consider- able interest to psycholegal scholars and researchers.

    Juries are diverse in terms of membership, function, structure, and operation. With respect to membership, jurors can be legal profession- als (judges or lawyers); people with special status, knowledge, or abil- ity; or ordinary citizens. With respect to function, juries may be charged with answering questions of law (i.e., to interpret the law), questions of fact (i.e., to interpret and draw inference from evidence), or both. These questions may be simple or narrow in scope, or they may be broad and far – reaching. With respect to structure, juries vary greatly in terms of size, ranging from small (e.g., six or fewer) to large (e.g., 23 or more), and manner of selection (e.g., appointment by an administrative authority or with input from the parties to a legal proceeding). With respect to opera- tion, juries vary in terms of how they deliberate, reach, and communicate decisions.

    The defi nition and description offered here may come as a surprise to some people. This is because contemporary use of the term jury is much more restricted, typically referring to a group of ordinary citizens who are selected more or less at random to represent the general population and serve as impartial triers of fact in a criminal or civil court, hearing evidence, deliberating in secrecy, reaching a decision by a vote, and communicating

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    180 Juries and Legal Decision Making

    the decision, often without giving reasons (e.g., Diamond, 2004). Juries of this sort play a relatively minor role in some nations where the legal system is based in part on continental European civil law (e.g., Belgium, Brazil, France, and Spain), and a larger role in nations where the legal system is based on English common law, including the United Kingdom and many territories that were at one time part of or administered by the British Empire (e.g., Australia, Belize, Canada, Ireland, New Zealand, and the United States; Roberts, 2004). (Some of these nations have regions or areas of law based on other legal traditions; examples include Qu é bec in Canada, Scotland in the United Kingdom, and Louisiana in the United States, which rely in part on a continental European civil law tradition. Also, many other nations and territories have legal systems that refl ect a blending between English common law and another legal tradition; exam- ples include continental European civil law in Hong Kong, Nicaragua, Sri Lanka, and South Africa; Islamic law in Bangladesh and Pakistan; and multiple traditions in India, Israel, and Nigeria.) For reasons that will be made clear later, juries are a particularly important part of the administra- tion of justice in the United States. Indeed, the majority of all trials by jury take place in the United States (Diamond, 2004).

    The History of Juries

    The origin of juries, as they are used today in the United States, can be traced back to Viking Age Britain (Diamond, 2004; Roberts, 2004). The fi rst Viking raid in the British Isles at Lindisfarne in 793 CE was fol- lowed by permanent settlements, including what became the Danelaw. (The Vikings who settled England were mostly Danes.) The Danelaw was a large region that encompassed much of what is now the north and east of England. Its political, legal, and military administration followed Norse traditions. These traditions were reinforced by the conquest of Britain in 1066 by the Normans, who were descended from Danish Vikings (also known as “ Norsemen ” ) who had raided, conquered, and settled the region of what is now northern France.

    One important feature of traditional Norse government was that the king or chieftain had limited power, ruling as a leader among peers and advised by an assembly of elders (as opposed to a king with unlimited power, ruling by divine right or by right of inheritance). In the British Isles, the Norse traditions of the Danelaw and, ultimately, the Norman conquerors merged with those of the Anglo – Saxons and native Britons. One level of governmental administration in Norman Britain was that of the shire or borough , governed by a reeve , who functioned as the king ’ s representative. A shire or borough was divided into smaller regions, called wapentakes

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    (sometimes spelled vapontakes ) or hundreds , that comprised a hundred or so families and the land necessary to sustain them. In legal matters, the shire reeve, or sheriff, appointed a gemot or assembly of a dozen or so thegns (also spelled thanes ) — senior men — from the local hundred who swore an oath to make a decision according to the law. The gemot played a role in every aspect of legal decision making, from giving evidence to hearing evidence, and advising the sheriff on matters of both fact and law. The involvement of thegns not only ensured the sheriff had the benefi t of the community ’ s knowledge and values, but also helped to balance power, both legitimizing and limiting the authority of the king (Diamond, 2004).

    As British society evolved, becoming increasingly centralized and urban, the common law system also evolved (Roberts, 2004). Responsibility for legal decision making was handed over from sheriffs and assemblies of elders to courts, presided over by judges. The move toward reliance on judges — independent, expert, and professional decision makers appointed by the government — had potential advantages and disadvantages. On the one hand, it could help to ensure consistency and fairness in legal proceed- ings. But on the other hand, it could lead to feelings of disempowerment and alienation among the populace, weakening the perceived legitimacy of the government. To avoid these potential problems, legal proceedings included several specifi c roles for local citizens — not just elders, but virtu- ally any man of standing (i.e., a property owner) — who sat together as a panel of jurors.

    In most countries where the legal system follows the common law tra- dition, the use of juries has declined over time. There are many possible explanations for this trend. One is that trials have become increasingly long and complex. This means serving on a jury can be a heavy respon- sibility for many people. A second is that modern democratic societies have many mechanisms that limit the power of their central governments, including a constitution, judicial independence, and high levels of open- ness. Arguably, juries are no longer necessary to help protect against the unreasonable exercise of power by governments. Third, many people who work in the justice system, including judges and lawyers, have expressed serious doubt that a group of laypeople had the knowledge or training necessary to make good legal decisions. Whatever the reasons, most com- mon law jurisdictions now use juries only in trials for serious crimes.

    But the trend away from juries was resisted in the United States, where juries are considered a crucial means of protecting citizens from the unrea- sonable exercise of power, as well as an important way of educating citi- zens about and involving them in the administration of justice. The right to trial by jury is established in the Sixth Amendment to the Constitution, and the U.S. Supreme Court has ruled the right may be exercised whenever

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    182 Juries and Legal Decision Making

    defendants face the possibility of punishment that exceeds six months of imprisonment ( Chaff v. Schnackenberg , 1966; Duncan v. Louisiana , 1968). Trial by jury is also widely available for civil matters in state and federal courts. In most other common law jurisdictions, defendants may have the right to trial by jury only when charged with serious crimes (e.g., in Canada, when facing a sentence of fi ve years or longer, or in some other criminal and civil matters).

    It is important to keep in mind that although parties to a proceeding may have the right to trial by jury, they may also have the right to waive trial by jury if they so desire. Jury trials are more likely to be waived in civil than criminal matters.

    Types of Juries

    Today, two major types of juries exist in common law jurisdictions. A grand jury comprises a large panel of jurors who consider allegations of crimes (or, less commonly, provide fi nancial oversight of public institu- tions) to determine if there has been any wrongdoing and whether further investigation or prosecution is warranted. A grand jury typically comprises a large group of jurors — depending on the jurisdiction, ranging from a minimum of 11 or 12 to 23 or more — who sit in closed court, or privately, and hear evidence presented by a complainant or prosecutor (although they have the authority to compel additional testimony). The grand jury then deliberates and decides whether to issue an indictment. Virtually the only place grand juries are used today is the United States, and even then only in a small number of jurisdictions and in restricted circumstances. Most other common law jurisdictions, including Canada, have not used grand juries for many years.

    A petit jury , also known as a trial jury, comprises a small group of jurors who serve as the trier of fact in a criminal or civil trial, under the guidance of a judge who interprets and instructs them with respect to mat- ters of law. A petit jury typically comprises a relatively small group of people — depending on the jurisdiction and the nature of the matter, rang- ing from a minimum of 5 or 6 up to 12 or even 15 — who sit in open court to hear evidence presented by all parties, with little or no infl uence over what or how evidence is presented. It then deliberates privately and issues a decision with respect to the issues at hand (e.g., verdict, liability). It is estimated that each year more than 250,000 criminal or civil trials by jury are held in the United States (Diamond, 2004).

    Other types of juries exist, but are rarely used. For example, some juris- dictions can impanel a jury to review fatalities in coroner ’ s court. As dis- cussed previously, a coroner ’ s jury may play a much more active role in

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    eliciting and questioning evidence and render complex decisions that include recommendations for preventing deaths.

    Researching Juries

    Research on juries is complicated because jurors are often required by law not to discuss their deliberations, and they typically do not have to explain the reasoning behind their decisions. In Canada, for example, the law strictly prohibits jurors in criminal trials from ever discussing their delib- erations or decisions. In the United States, jurors are often free to discuss deliberations or discussions after they have been discharged, but in most cases not while serving on a jury. This means researchers are generally unable to directly observe juries in action, and must use other strategies to gather information.

    One alternative to direct observation is archival research . This type of research involves studying court records of jury trials and recording infor- mation about jurors, the cases they hear, and their verdicts. But offi cial records typically contain only limited information. A second alternative is to survey jurors or offi cers of the court (e.g., lawyers and judges) after trial. This relies on the willingness of people to participate in research, and also may be prone to bias with respect to what they know, remember, or are willing to report. A third alternative is to conduct fi eld experiments . These experiments involve systematic manipulation of various aspects of court proceedings, such as whether jurors are permitted to take notes dur- ing presentation of evidence, followed by a survey of jurors or offi cers of the court or by an examination of verdicts. But this type of research is diffi cult — judges tend to be uncomfortable with the idea of random assign- ment of juries or trials to various experimental conditions — and also does not provide insight into underlying processes. Finally, mock jury research involves simulation. People recruited to acts as jurors are presented with summaries or excerpts of trial evidence and legal instructions, and after- ward they may complete questionnaires individually or deliberate as a group. Although this approach allows tight controls and true experimental designs, it is not clear whether the fi ndings generalize to actual juries.

    Characteristics and Processes of Petit Juries

    Because petit juries are the type most commonly used, and most com- monly studied, let ’ s take a closer look at them.

    The size of a petit jury varies not only across jurisdictions, but also across different types of trials within jurisdictions. The ancient rule was that a gemot should comprise the 12 leading thegns of the shire or borough, assembled by the reeve. This is still the standard or most common size

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    184 Juries and Legal Decision Making

    for a jury, although some jurisdictions permit smaller juries, comprising only fi ve or six jurors, for some or all trials. Smaller juries are easier to impanel, especially in jurisdictions with small populations.

    In the United States, the Sixth Amendment — which establishes the right to trial by jury — is silent on the issue of jury size. In the second half of the twentieth century, several states began using smaller juries, most com- monly comprising six jurors. The U.S. Supreme Court eventually weighed in on this practice, ruling that smaller juries were constitutionally permis- sible in both criminal and civil trials ( Colgrove v. Battin , 1973; Williams v. Florida , 1970). But how small a jury is permissible? This question was addressed in Ballew v. Georgia (1978), in which the Supreme Court held that a jury of six was the constitutional minimum.

    It is sometimes diffi cult to keep a jury intact after jurors have been selected. Jurors may be excused before a verdict is reached due to personal circumstances (e.g., illness, family or work problems) or, in rare circum- stances, misconduct (e.g., ignoring instructions from a judge not to discuss evidence with others prior to deliberation). Typically, the law governing a trial specifi es a target size for the jury, as well as a minimum size, and may also allow for the selection of one or more “ extra ” jurors, called alter- nates . Alternates function as regular jurors, listening to the presentation of evidence, and can replace regular jurors in the event they are excused prior to deliberation; once deliberations begin, alternates are excused and do not participate further. In rare cases, jurors may be excused during the course of deliberation or there may be no alternates available to replace those excused, and the jury may be smaller than the target size. This is usually not a problem, unless the jury size exceeds any minimum specifi ed by law (e.g., six in the United States), as the law recognizes there is nothing magi- cal about a particular number of jurors.


    When a matter proceeds to trial by jury, a jury is empanelled before any evidence is presented in court. The process of selecting jurors comprises two major steps. The fi rst step is to identify a large pool of potential jurors, sometimes referred to as venirepersons , using a few general crite- ria. Typically, the law requires that potential jurors are adults (usually at least 18 or 19 years old), citizens of the nation in which the trial will be held, and residents of that jurisdiction. Potential jurors are often identi- fi ed through offi cial records (e.g., people registered as voters or possess- ing driver ’ s licenses). This step is designed to ensure the pool of potential voters is representative of the community at large, although reliance on offi cial records may introduce some systematic bias (e.g., excluding

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    people who cannot afford telephones or automobiles, or who change address frequently).

    The second step is to select a short list of actual jurors. A large group of venirepersons is subpoenaed to attend court and undergoes examina- tion designed to identify people who may be inappropriate to serve as jurors. Potential jurors may be deemed inappropriate if they have personal experience with the administration of justice, general knowledge of the law, or specifi c knowledge of the case at hand. It is common to exclude from jury duty people who are employed (or have family members who are employed) in the justice system or who have been convicted of seri- ous criminal offenses. To illustrate, according to the Jury Selection and Service Act (1968), a person is automatically excluded from jury duty in the United States if he or she:

    1. Is not a citizen of the United States is not at least 18 years old, or has not resided for a period of one year within the judicial district;

    2. Is unable to read, write, and understand the English language with a degree of profi ciency suffi cient to fi ll out satisfactorily the juror qualifi – cation form;

    3. Is unable to speak the English language; 4. Is incapable, by reason of mental or physical infi rmity, to render satis-

    factory jury service; or 5. Has a charge pending against him for the commission of, or has been

    convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.

    Potential jurors may also be deemed inappropriate if they have personal experiences, attitudes, or beliefs relevant to the case at hand that may bias their judgment. For example, people who have been victims of sexual assault or who believe all sex offenders deserve the death penalty may be excluded from jury duty if the trial is for someone charged with sexual assault. The goal of this second step is to ensure the jury is impartial.

    Voir Dire

    The most common method of examining jurors is the voir dire , a French term that means “ to speak truthfully. ” The voir dire is a special minitrial in which venirepersons are sworn as witnesses and answer questions posed by the judge or the trial parties intended to reveal possible bias. Other methods of examination may be used. An example is a writ- ten questionnaire developed by the judge and parties specifi cally for

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    186 Juries and Legal Decision Making

    that trial; the questionnaires are completed individually by jurors and then reviewed by the judge and parties in private. Based on the information available to them, parties may object to a venireperson serv- ing on the jury through either a peremptory challenge or a challenge for cause . A peremptory challenge can be used to remove a prospective juror without having to specify a reason. The parties have a specifi ed number of peremptory challenges depending on legal issues at hand. In contrast, a challenge for cause must be based on an argument that the prospective juror cannot serve impartially. When a challenge for cause is raised, the opposing party is allowed to respond and the judge then decides whether to exclude the juror. There are no limits to a challenge for cause. Possible reasons for a challenge for cause include being a relative of the defend- ant, having prior experience with a similar case, expressing a bias against the defendant ’ s race or religion, or stating they are unable to follow the law in a given case (e.g., jurors in capital sentencing cases who state they are unable to vote for the death penalty; see Box 7.1 ).

    Capital murder cases represent a unique basis for challenging a prospective jury. In a capital case, the proceedings are divided into two stages. In the fi rst stage, juries are asked to reach a verdict of guilt or innocence. If the defendant is found guilty, the case moves to the second phase, the sentencing phase. Here, the jury determines whether the death sentence should be imposed. Jurors may be excluded for cause if they are categorically opposed to the imposition of a death sentence, or if they believe that the death penalty must be imposed in all instances of capital punishment.

    The use of a death-qualifi ed jury has been affi rmed by the Supreme Court (Witherspoon v. Illinois, 1968; Lockhart v. McCree, 1986). The screening of jurors in death penalty cases is controversial because it may result in jurors more likely to convict as well as impose the death penalty. Craig Haney (2005), in a highly infl uential book on the death penalty, concluded, “Death qualifi cation facilitates death sentencing by insuring that the only jurors allowed to decide whether a capital defendant lives or dies have been selected on the basis of their willing- ness to impose the death penalty. Of course, a group selected on this basis is more likely to actually impose the death penalty than one selected through non-death qualifying voir dire” (p. 111). Psychological research supports this conclusion. A well-designed laboratory study by Cowan, Thompson, and Ellsworth (1984) divided participants into two groups of juries. Nine juries were composed entirely of death-qualifi ed participants (death-qualifi ed juries) while 10 juries included from 2 to 4 excludable participants (mixed juries). The juries viewed a two-and-a- half hour trial videotape and then deliberated to reach a verdict. They found that death-qualifi ed jurors were less likely to vote not guilty (22.1% vs. 46.7%) on predeliberation ballots, and less likely to vote for acquittal following deliberation (13.7% vs. 34.5%). Also, compared to excludable jurors, death-qualifi ed jurors trust prosecution witnesses more and defense witnesses less. A meta-analysis of

    Box 7.1 Death-Qualifi ed Juries

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    Juries 187

    14 studies showed that this fi nding has been consistently supported. Allen, Mabry, and McKelton (1991) estimated that the bias resulting from holding favo- rable attitudes toward the death sentence was associated with a 44% increase in the probability of a juror favoring conviction. They concluded that research had shown that “the more a person favors the death penalty, the more likely that person is to vote to convict a defendant” (p. 724).

    Research has also shown that death-qualifi ed jurors are different from those who were not qualifi ed in a number of ways. Butler (2007), in a study of individu- als called for jury duty, found that more positive attitudes toward the death pen- alty were correlated with more negative attitudes toward women and higher levels of homophobia, modern racism, and modern sexism. Personality differences were reported in a study by Butler and Moran (2007), who found that death-qualifi ed participants were also more likely to have a high belief in a just world, espouse legal authoritarian beliefs, and exhibit an internal locus of control (i.e., internal rather than external events control one’s life).

    This research, however, has not infl uenced court decisions. In Witherspoon, the Court rejected the research as “too tentative and fragmentary to establish that jurors not opposed to the death penalty tend to favor the prosecution in the determination of guilt” (p. 520). At the time, this decision spurred a considera- ble amount of research, so that by the time Lockhart v. McCree was decided in 1986, the Court had more evidence about the effects of death-qualifi ed juries. The American Psychological Association submitted an amicus curiae brief (Bersoff & Ogden, 1987). The Court reviewed this research, but noted serious methodologi- cal fl aws. The Court wrote that “We will assume for purposes of this opinion that the studies are both methodologically valid and adequate to establish that ‘death qualifi cation’ in fact produces juries somewhat more ‘conviction-prone’ than ‘non- death-qualifi ed’ juries. We hold, nonetheless, that the Constitution does not pro- hibit the States from ‘death qualifying’ juries in capital cases” (p. 1764).

    The nature and scope of the questions that can be asked in voir dire , as well as the frequency with and reasons for which potential jurors can be excluded, are limited by the laws of the jurisdiction. The purpose of the limitations is to maintain the representativeness of juries. In some coun- tries, the ability to examine and exclude potential jurors is more restricted. For example, Canada limits the scope of questions that can be asked of potential jurors, allows fewer peremptory challenges, and has a complex system for challenging by cause in criminal matters. In contrast, there is considerable latitude to examine and exclude jurors in the United States. Venirepersons cannot be challenged on the basis of race, gender, sexual orientation, or religion (e.g., Batson v. Kentucky , 1968), but beyond that, almost anything goes. This has led to the development of the practice known as scientifi c jury selection (SJS), which is the application of social science to assist attorneys in the selection of jurors. (See Box 7.2 for more information on SJS.)

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    188 Juries and Legal Decision Making

    Perhaps the fi rst use of scientifi c jury selection (SJS) was in the trial of the Harrisburg Seven in the 1970s. This trial involved a group of defendants charged with a number of crimes related to their activity in the Vietnam antiwar movement. Concerned that the government set the trial in a politically conservative commu- nity that would be more likely to convict, a group of social scientists surveyed residents about their values and attitudes in an attempt to develop a profi le of the ideal juror (Schulman, Shaver, Coleman, Emrich, & Christie, 1973). Their objec- tive was to assist the attorneys in selecting an impartial jury. The trial ended in a hung jury, with the majority voting for acquittal. The defendants were not retried.

    Schulman and his colleagues continued to be involved in other political trials (Lieberman & Sales, 2006), but since then, the business of trial consultants focus- ing on jury selection and other trial consulting has developed into a vast industry employing large numbers of psychologists and other social scientists who are now involved in a range of criminal and civil trials. SJS typically employs a commu- nity survey of jury-eligible citizens, but sometimes uses other activities such as trial simulations and the use of focus groups to obtain reactions to evidence that may be presented at trial. The results of these activities are intended to be used by attorneys in voir dire. Trial consultants present attorneys with individual characteristics that are thought to predict verdicts. Trial consultants are more commonly used in civil trials involving potentially high damage awards, but they are also used in criminal cases, notably high profi le cases such as the murder trial of O. J. Simpson.

    There are two basic approaches to jury selection. One focuses on broad attitudes and traits, by measuring such characteristics as juror bias (whether a juror has a pro-prosecution or pro-defense bias), or personality characteristics such as liberal- ism, authoritarianism, or need for social approval. Psychologists have developed measures of these constructs, such as the Legal Attitudes Questionnaire (Boehm, 1968), the Juror Bias Scale (Kassin & Wrightsman, 1983), and the Belief in a Just World Scale (Rubin & Peplau, 1975). The second approach is case-specifi c. As the name implies, this approach attempts to identify juror biases that are relevant to a particular case. The Harrisburg Seven trial is an example of this case-specifi c approach the social science team focused on attitudes specifi c to the trial, such as attitudes toward government property, the police, and patriotism, as well as pro- prosecution attitudes (see Posey & Wrightsman, 2005, for a discussion of this case).

    Is SJS effective? In other words, would the trial outcome be different if SJS were not used? This is a diffi cult question to answer. One major diffi culty is that SJS is typically used in cases in which the defendant or plaintiff has the funds to afford the cost of trial consultants. In these cases, they would be likely to have the best legal representation, and other trial tactics may simultaneously be employed (e.g., shadow juries, focus groups). Thus, even if the outcome were favorable, one would not be able to discern how much SJS contributed to the outcome. In an extensive review of the literature, Lieberman and Sales (2006) note that research shows that attitudinal, personality, and demographic variables are poor predictors of verdicts, typically accounting for only about 10% to 15% of verdict variance. They conclude, however, that even if SJS doesn’t affect the outcome in a specifi c case, it is unlikely that it would harm the case, and the client may be reassured that every effort is being made to mount the defense.

    Box 7.2 Scientifi c Jury Selection: A Closer Look

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    The Special Problem of Pretrial Publicity Pretrial publicity can greatly complicate the process of jury selection, because a large number of people can be exposed to information that may make it impossible for them to serve as impartial jurors. (Recall the trial of Scott Peterson, discussed at the start of the chapter.) This is especially true in the United States; in contrast, many other countries have strict limits concerning what can be reported before or during the trial. The media may report details about the crime, the fact that a defendant confessed to the crime, or other details that may prejudice prospective jurors. On occasion, the media may have reported evidence, such as a confession or evidence seized at the time of arrest, that later is ruled inadmissible in the trial itself. In these cases, jurors have information they are instructed to ignore. Is it possible to do so? That is the issue that is raised when considering the effects of pretrial publicity on juries.

    One of the fi rst cases that addressed the issue of pretrial publicity was the murder trial and conviction of Dr. Sam Sheppard. Sheppard was charged with the murder of his wife. He claimed that he had fallen asleep while watching television and was awakened by his wife calling his name. He ran to their bedroom and was struck on the head from behind. When he woke up, he found his wife covered in blood. He checked her pulse and found none. He then heard a noise from downstairs and chased after a man he saw running in his backyard. He reported that he caught up to the man, they struggled, and he lost consciousness again. When he came to, the man was gone, and he returned to his house to fi nd his wife had been murdered.

    The facts of this case may be familiar to many readers, as it was the basis of a television series and later a movie called The Fugitive. Dr. Sheppard ’ s trial was covered extensively by the media, and the cov- erage was largely negative. Jurors were exposed to this information both before and during the trial. He was convicted and sentenced to life in prison. He appealed, arguing that the negative publicity had prejudiced the jury. The appeals took many years, but ultimately the U.S. Supreme Court ruled that Sheppard ’ s trial had indeed been prejudiced by pretrial publicity ( Sheppard v. Maxwell , 1964). By then, he had already spent over 10 years in prison. The Court vacated his conviction and ordered a new trial, and Dr. Sheppard was acquitted at the second trial. Sadly, he died just four years later of liver failure (Cooper & Sheppard, 1995).

    A key issue regarding pretrial publicity is balancing the First Amendment right to free speech and a free press with the Sixth Amendment right to a fair and impartial jury. The American Bar Association (ABA) has developed standards in an attempt to address concerns about the prejudicial effects of pretrial publicity. As shown in Box 7.3 , the ABA suggests extensive

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    190 Juries and Legal Decision Making

    questioning of prospective jurors to determine the possible impact of any prior knowledge. Other possible remedies include a change of venue (i.e., moving the trial to another jurisdiction that has not been exposed to public- ity), judicial instruction (i.e., instructing the jury to disregard information they obtained outside of the trial), or a continuance (i.e., delaying the start of a trial).

    Research on pretrial publicity reinforces the perspective that such public- ity can have prejudicial effects in both criminal and civil cases (Bornstein, Whisenhunt, Nemeth, & Dunaway, 2002; Greene, 1990). A number of studies have shown that knowledge of pretrial publicity is associated with an increased presumption of guilt of a defendant and that a juror ’ s state- ment that he or she would be impartial despite this knowledge should not be taken at face value (Kovera, 2002; Moran & Cutler, 2006; Steblay, Besirevic, Fulero, & Jimenez – Lorente, 1999). Research also suggests that a

    The following standards govern the selection of a jury in those criminal cases in which questions of possible prejudice are raised:

    a. If there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to exposure should take place outside the presence of other chosen and prospective jurors. . . . The questioning should be con- ducted for the purpose of determining what the prospective juror has read and heard about the case and how any exposure has affected that person’s attitude toward the trial, not to convince the prospective juror that an inability to cast aside any preconceptions would be a dereliction of duty.

    b. Whenever prospective jurors have been exposed to potentially prejudicial mate- rial, the court should consider not only the jurors’ subjective self-evaluation of their ability to remain impartial but also the objective nature of the material and the degree of exposure. The court should exercise extreme caution in qualifying a prospective juror who has either been exposed to highly prejudicial material or retained a recollection of any prejudicial material.

    c. Whenever there is a substantial likelihood that, due to pretrial publicity, the regularly allotted number of peremptory challenges is inadequate, the court should permit additional challenges to the extent necessary for the impaneling of an impartial jury.

    d. Whenever it is determined that potentially prejudicial news coverage of a crim- inal matter has been intense and has been concentrated in a given locality in a state (or federal district), the court should, in jurisdictions where permissible, consider drawing jurors from other localities in that state (or district).

    Source: http://www.abanet.org/crimjust/standards/fairtrial_blk.html.

    Box 7.3 American Bar Association Standard 8–3.5: Selecting the Jury

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    judge ’ s instruction to a jury to ignore extra – trial information, or even infor- mation they heard in a trial but is ruled inadmissible, is not effective, and in fact, may result in jurors paying more attention to inadmissible evidence (Lieberman & Arndt, 2000). Moving the trial to another jurisdiction may be the most effective method for minimizing the impact of pretrial publicity, although even this option may be impossible in high – profi le cases that have received national attention.

    Instructions As jurors are not knowledgeable about matters of law, they receive gen- eral and special instructions from the trial judge. General instructions may be given at any time, and typically are intended to help jurors understand and follow the procedures set out in law. A set of special instructions, also known as the charge to the jury , concerns the decisions to be made by the jury in the case at hand. In criminal trials, the jury typically is charged with reaching a verdict concerning guilt (e.g., “ guilty ” versus “ not guilty ” ), although it may also be asked to pass or recommend a sentence (e.g., in some capital murder cases). In civil trials, the jury is most often charged with fi nding liability (e.g., “ for the plaintiff ” versus “ for the respond- ent [defendant] ” ), and may also be asked to award or recommend mon- etary damages. The trial judge is responsible for instructing the jury. The instructions may be guided by some combination of precedent, standard, or pattern instructions provided to judges in a given jurisdiction and legal arguments made by the parties.

    Hearing Evidence Many trials are brief, lasting only a day or two, but some trials are con- siderably longer. The murder trial of O. J. Simpson took nearly a year, during which a large amount of evidence, some of it highly complex such as the DNA evidence, was presented. Should jurors be allowed to take notes during the trial so that they can recall the evidence presented and understand the complex evidence? The American Bar Association (ABA, 2005) recommended in its Principles for Juries and Jury Trials that juries should be allowed to take notes during the trial, and the courts have become increasingly favorable to this practice, particularly for tri- als lasting for more than two days. The ABA notes that juries should be permitted, but not required, to take notes, and that they should receive appropriate cautionary instructions on note taking and note use. The practice of note taking, however, has been a controversial issue, as some have argued that jurors who take notes may, during deliberation, exert greater infl uence on those who choose not to take notes, or that note tak- ing would be distracting during trial.

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    192 Juries and Legal Decision Making

    Research has addressed this issue. Horowitz and Bordens (2002) con- ducted a mock jury study in which jury – eligible participants were divided into 6 – or 12 – person juries who watched a videotaped civil trial. Half of the juries were allowed to take notes. They found differences for size of jury as well as note taking versus no note taking. The six – person juries that did not take notes awarded multiple plaintiffs the highest amounts of compensation, and awarded the highest punitive damages. Compared to the smaller juries, 12 – person juries deliberated longer, recalled more pro- bative information, and relied less on evaluative statements and nonproba- tive evidence.

    Penrod and Heuer (1997) summarized the results from two studies they conducted. One study was a Wisconsin State study of 67 trials, and the second was a national sample of 75 civil and 85 criminal tri- als. They found that about two – thirds of the jurors in Wisconsin and 87% of the national sample elected to take notes. The note taking was often not extensive, as national sample jurors took on average about a half page of notes per trial. With respect to the controversies about note taking, Penrod and Heuer found that note taking did not serve as a useful memory aid, but jurors who took notes reported feeling more involved and satisfi ed with the trial procedure and verdict. They also found that note taking did not serve as a distraction and that jurors who took notes did not have an undue infl uence on those who did not. Although Penrod and Heuer did not fi nd positive effects of note taking, they also noted that their fi ndings also showed no negative effects, concluding that note taking is relatively innocuous. Given that the disadvantages are minimal and that jurors are more satisfi ed when allowed to take notes, they sug- gested that this practice continue to be allowed.

    Deliberations After receiving instructions, jury members deliberate. Deliberation is the raison d ’ ê tre of the jury. The collective knowledge and wisdom of a jury is, in principle, superior to that of individual jurors and less likely to result in decisions that are idiosyncratic or unrefl ective of community values. Deliberations follow many steps.

    First, the jury appoints or elects a foreperson from among the jurors, if this has not already been done. The foreperson usually has primary responsibility for chairing the jury ’ s deliberations (i.e., ensuring they are orderly), for communications between judge and jury during delibera- tions (e.g., if the jury poses questions for the judge), and for communi- cating the jury ’ s fi nal decisions (although individual jurors may also be polled, that is, asked to state their own decisions).

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    Second, the jury reviews and discusses the evidence heard. To this end, jurors may be allowed to consult any written notes they have taken, evi- dence presented in the form of exhibits, and in some cases, trial transcripts or even public documents not entered into evidence. They also have the opportunity to discuss the meaning and interpretation of evidence. Exactly how the deliberations proceed is a matter for the jury to decide, guided by three general principles: fi rst, the jury must base its decision solely on the evidence deemed admissible by the judge; second, jurors must reach deci- sions independently, free from coercion or other undue infl uence by other jurors; and third, the jury must make the decision on its own, not commu- nicating with and free from the infl uence of outsiders. To help them delib- erate properly, juries receive general instructions not to discuss the case with outsiders and not to have contact with parties during the trial, and they may be sequestered (isolated) during deliberations. Third, the jury reaches (or attempts to reach) a consensual decision through voting. Again, exactly how the voting proceeds is a matter for the jury to decide. It is common for the foreperson to solicit votes at the outset of the deliberations (a “ straw poll ” ), before any in – depth discus- sion commences, so the jurors have some idea of each other ’ s leanings or preliminary opinions. If there is unanimity of views at the outset, the review and discussion of evidence that follows may be brief; if there is a divergence of opinion, it may be much longer. The discussion may continue, with periodic votes (formal or informal), until each juror has reached a fi rm decision as an individual. It is expected that each juror will participate to some degree in the review and discussion, and that each will vote to express an individual decision.

    How and to what extent does the process of deliberation sway jurors ’ ver- dicts? The answer to this question is not clear (Diamond, 2004). The role of deliberation is probably relatively small when the charge to the jury is simple and a clear majority view exists (and is expressed) from the outset. In such circumstances, the process appears to focus on pressuring the minor- ity to change its vote and the fi nal verdict is quite predictable. But when the charge is complex, or when no clear majority exists or is expressed, the process appears to focus on reviewing the evidence and the fi nal verdict is less predictable. Research also suggests that time spent deliberating is a good indicator of dissent among jurors: the greater the dissent, the longer the deliberations, and the greater the likelihood of a hung jury.

    Jury Decision Rules The deliberations reach a natural end once there is unanimity or once fur- ther discussion fails to change the opinions of individual jurors. At this

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    194 Juries and Legal Decision Making

    point, the jury must determine whether it has reached a decision accord- ing to the judge ’ s charge. The charge includes a decision rule , the vot- ing pattern required for a jury to reach a consensual decision. Decision rules vary across jurisdictions and across legal issues within jurisdictions. Historically, the decision rule required unanimous voting, with no specifi ed time limit; failure to achieve the required unanimity meant that no decision was reached and thus no action was taken. Modern decision rules require either unanimity or a voting pattern that could be characterized as some- where between a “ clear majority ” and a “ virtual unanimity. ” In the United States, for example, a few states allow up to two or even three dissent- ers in a 12 – person jury ( Apodaca v. Oregon , 1972; Johnson v. Louisiana , 1972), but most require unanimity. The U.S. Supreme Court has held that six – person juries must be unanimous ( Burch v. Louisiana , 1979).

    At the natural end of the deliberations, the foreperson communicates to the trial judge whether the jury has been able to reach a decision and, if so, the decision itself. When a jury is unable to reach a decision, the judge may question jurors to determine why. If it appears there is some chance of reaching a decision within a reasonable time frame, the judge may order the jury to resume deliberations. But if there is a hung jury — a jury whose deliberations are deadlocked and is therefore unable to reach a proper deci- sion within a reasonable time frame — the judge may declare a mistrial, dismiss the jury, and order a new trial.

    Jury Nullifi cation When a criminal jury reaches a legal decision that fl ies in the face of the evidence presented at trial, either by acquitting a defendant who is obvi- ously guilty or by convicting a defendant who is obviously not guilty, jury nullifi cation occurs. Decisions of this sort are a communication that the jurors reject the validity of the law as it applies to the facts of the case. Consider the murder trials of Dr. Jack Kevorkian, a physician who helped a number of his terminally ill patients to commit suicide. On three differ- ent occasions, Dr. Kevorkian was acquitted of murder despite incontrovert- ible evidence of his involvement in the deaths of his patients, a rather clear message that the juries did not believe physician – assisted suicide of termi- nally ill patients should be considered a crime.

    Since juries deliberate in secret and are not obliged to explain or jus- tify their verdicts, it is diffi cult to ascertain whether jury nullifi cation has occurred unless jurors acknowledge disagreement with the law was the basis for their verdicts. For example, the verdict of the jury in the O. J. Simpson murder trial is considered by many to be an example of jury nullifi cation, but it may also be the case that jurors accepted defense argu- ments that Simpson had been framed by the investigating detectives.

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    The possibility of jury nullifi cation is a concern to the judicial system. Some studies have shown that giving instructions about jury nullifi cation makes guilty verdicts less likely (Meissner, Brigham, & Pfeifer, 2003; Niedermeier, Horowitz, & Kerr, 1999). Trial judges, however, do not instruct juries about the possibility of nullifi cation, even when the defense requests such instructions. For example, in United States v. Dougherty (1973), a defense request to provide a nullifi cation instruction to the jury in a trial of antiwar activists was rejected.


    The study of how legal decision makers understand and use evidence to reach verdicts can be traced to the legal scholar, John Henry Wigmore (Wigmore, 1909, 1913). Wigmore developed a sophisticated method for analyzing and synthesizing trial evidence. “ Wigmore charts ” or “ evidence charts ” summarized chains of inferential reasoning from evidence to the propositions underlying legal arguments. Since that time, the study of legal decision making has followed two very different routes. One route elab- orates on Wigmore ’ s original methods, leading to “ modifi ed Wigmorean analysis ” (e.g., Twining, 2007) or develops even more sophisticated models (e.g., Kadane & Schum, 1996; Thagard, 2004). The goal of this approach is to explicate the specifi c cognitive processes used by triers of fact to infer causality and evaluate arguments within the context of a legal trial. The other route views legal decision making as a process in which tri- ers of fact develop stories that help them understand the decision – making context, explain the evidence presented to them, and reach a decision (e.g., Bennett, 1978). Following Jerome S. Bruner (1985, 1991, 2003) — a distinguished cognitive – developmental psychologist who now holds posi- tions in the Department of Psychology and School of Law at New York University — we will refer to these two models as paradigmatic models and narrative models.

    Paradigmatic Models

    Paradigmatic models assume that people ’ s thought processes are mechan- ical or rule – governed in nature and can be conceptualized in terms of the application of basic logical operators to information (Bruner, 1985, 1991; Pennington & Hastie, 1981). Although the logical operators may appear simple when considered in isolation, in combination they are capable of generating incredibly sophisticated answers to complex problems. They allow human beings, born with a tabula rasa (a cognitive “ blank slate ” ), to perceive associations between objects or events in their environments and

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    196 Juries and Legal Decision Making

    perform inductive tasks such as categorization and causal reasoning that permit them to develop and evaluate theories about how the world works. The two major types of paradigmatic models differ from each other in terms of the emphasis given to roles for innate or learned knowledge struc- tures, such as beliefs, schemas, and conditional interventions (Gopnik & Tenenbaum, 2007; Shultz, 2007). The fi rst type, simple association models, require only classical or operant conditioning and have no need to include concepts related to abstract learning or knowledge structures. Learning is viewed as the process of directly linking inputs in the form of information about the environment to outputs in the form of behavior. The second type, connectionist models, posit that abstract learning or knowledge structures may emerge out of simple associations, but they are implicit or hidden. Learning is viewed as a process of linking inputs to outputs that is medi- ated by learned mental activity, although people may not be conscious or aware of this activity.

    In a now – classic article, Pennington and Hastie (1981) discussed para- digmatic models that have been used to study legal decision making. The models differ in some important respects. Some assume that triers of fact begin the trial process with no preference for one verdict or the other; oth- ers assume they enter the trial with a na ï ve (i.e., uninformed) assumption in favor of one verdict before they hear any evidence. Some assume that each piece of evidence is given a rating of probity (i.e., the extent to which it factors one verdict versus the other) as soon as it is heard, whereas oth- ers assume ratings are not assigned until all the evidence has been heard. Some assume that the probity ratings take the form of scalar variables (like a rating on a 7 – point scale), whereas others assume they are estimates of the odds in favor of one verdict. Some assume the probity ratings are combined using simple arithmetic algorithms (e.g., sum, average) after all the evidence is received, whereas others assume they are combined using more complex algorithms (e.g., Bayes ’ theorem) or sequentially through- out the trial process. Finally, some focus on the decision – making proc- esses of individual triers of fact, whereas others focus on a general process discernible only across triers of fact (i.e., the “ on average ” process).

    As an example, Louden and Skeem (2007) investigated the impact of attitudes toward the insanity defense on decision making by jurors, rela- tive to jurors ’ prototypes of insanity. They conducted an experiment using as participants 113 prospective jurors, people who had reported for jury duty at a county courthouse and voluntarily completed the study after being excused from jury duty. Participants individually completed a ques- tionnaire that evaluated their prototypes of insanity and their attitudes toward the insanity defense, then made decisions (case judgments and ver- dicts) for each of four brief case vignettes. The data were aggregated and

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    analyzed using bivariate and multivariate statistics. The fi ndings indicated that attitudes toward the insanity defense were associated with prototypes of insanity. But attitudes were much more strongly associated with jurors ’ decisions than were prototypes, which had only a small independent asso- ciation with juror ’ s decisions.

    Narrative Models

    Narrative models , also called explanatory models , of decision making assume that people think about the world in terms of stories, particularly when they think about interactions among human beings (Bruner, 1985, 1991, 2003; Schank & Abelson, 1995). A story is a communicative device in which multiple events or incidents are sequenced and unifi ed into a sin- gle entity by means of a plot, or “ a narrative of particular events arranged in time and forming a meaningful totality ” (Twining, 2006, p. 223). Human beings are social, communicative creatures, and narratives are quintessen- tially human — perhaps the most intricate form of communication or expres- sion known to us. According to Polkinghorne (1995), narrative is “ uniquely suited for displaying human existence as situated action . . . . [It] is the lin- guistic form that preserves the complexity of human action with its interrela- tionships of temporal sequence, human motivation, chance happenings, and changing interpersonal and environmental contexts ” (pp. 5 – 7). According to narrative models of decision making, people strive to explain what has happened, is happening, or might happen in the future, and this explanation in turn determines their reactions or actions. They view people as engaged constantly and actively in the construction of meaning.

    Narrative cognition has its own characteristic rules and operations. It functions as a symbolic system (like language) that, although it may have a neuropsychological basis, is largely a product of culture (Bruner, 1985, 1991; Schank & Abelson, 1995). According to Twining (2006), stories have three basic characteristics:

    1. Particularity is raw material in the form of critical elements of informa- tion that can be used to elucidate the emotional and motivational mean- ing of people ’ s behavior.

    2. Temporality is the chronological ordering of information in the form of events or occurrences.

    3. Coherence or unity is the establishment of causal links between the information elements by means of a plot.

    Bennett (1978) was among the fi rst to outline a narrative model of legal decision making. It was elaborated by Pennington and Hastie (1981, 1992)

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    198 Juries and Legal Decision Making

    and popularized in psychology as the story model. (Other elaborations have been developed, including the anchored narrative model of Wagenaar, van Koppen, & Crombag, 1993; but as many of the basic elements are sim- ilar, we will focus on the story model here.) According to the story model , legal decision making comprises three different processes: story construc- tion, verdict representation , and story classifi cation .

    1. Story construction is the process by which triers of fact evaluate the evidence presented to them. Evaluating evidence requires consider- able cognitive effort, as evidence typically is presented bit by bit, over an extended period of time (hours or days), and pieces of evidence are interdependent, making it is impossible to determine their relevance or importance until all the pieces have been presented. Triers of fact develop narrative accounts that help them remember, organize, and explain evidence. The narratives they develop are based not only on information about the case at hand, but also on information about simi- lar incidents or situations and their general understanding of narrative structure. Several narratives may be developed that fi t the evidence, but their adequacy may be judged according to their coverage (the extent to which a narrative accounts for all the evidence presented), coherence (the extent to which the elements of a narrative are consistent, complete, and plausible), and uniqueness (the extent to which a narrative lacks viable competing or alternative narratives).

    2. Verdict representation is the process in which triers of fact understand the legal decision they must reach, that is, the alternatives open to them under the law. The alternatives depend on the relevant law, as well as the spe- cifi c circumstances of the case at hand. For example, in a given criminal trial, the verdicts available to triers of fact might be “ guilty, ” “ not guilty by reason of insanity, ” or “ not guilty, ” or they may be asked to decide whether a person convicted of murder should receive the death penalty; in a given civil trial, the available verdicts might be “ for the plaintiff ” or “ for the respondent, ” or jurors may be asked to determine the amount of compensatory or punitive damages to be awarded following a verdict for the plaintiff; or in a coroner ’ s inquest, triers of fact may be asked to decide the identity and cause of death of a victim or to make recommendation for preventing similar deaths in the future. The process of legal decision mak- ing generally includes some formal discussion of the law and decisions alternatives, but triers of fact may also be infl uenced by other factors, including their own personal knowledge and beliefs. Verdict representa- tion may occur after or in parallel with story construction.

    3. Story classifi cation comes after story construction and verdict representa- tion, and is the process by which triers of fact determine which decision

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    or verdict fi ts their preferred narrative best. This process is simpler to the extent that the narratives developed by triers of fact contain informa- tion that is directly relevant to their verdict representations.

    An example of research using the story model is a study by Weiner, Richmond, Seib, Rausch, and Hackney (2002). They investigated whether people used a common script or prototype to construct narratives in mur- der trials, or whether they used multiple exemplars (i.e., specifi c ver- sions) of the same general script or prototype. Participants in the study were 76 people, recruited through newspaper advertisements, who were eligible to serve on a jury and “ death qualifi ed ” (i.e., willing to consider sentencing someone to the death penalty under state law). Participants were interviewed individually, asked to think about a scenario in which someone perpetrated fi rst – degree (i.e., capital) murder, and then asked to describe the scenario in detail. Interviewers asked questions to make sure the scenarios were as detailed as possible. The interviews were recorded and researchers developed a scheme that was used to code the presence of 13 common story features (motivational theme, location, emotional state of the perpetrator, the number of victims involved, the acquaintanceship between perpetrator and victim, etc.), the level of premeditation and intent on the part of the perpetrator, and the presence of aggravating and mitigating factors in death penalty cases according to state law. Statistical analyses suggested the presence of three general exemplars.

    The fi rst typically involved perpetrators who did not know their victims, encountered them while committing other crimes, and then killed them in an unemotional and unplanned manner. The second typically involved a perpetrator planning to shoot an acquaintance and following through on the plan. The third involved a perpetrator motivated by anger or jealousy, often killing multiple acquaintance victims at a residence.

    Each of the general clusters also contained multiple exemplars. The researchers concluded that the scenarios generated by participants were strikingly diverse; there was no evidence that a single script or prototype was used to construct the murder narratives.

    An important strength of paradigmatic models is that they are highly structured and explicit. Because of the specifi c information inputs, the operations used to manipulate information, and decision outputs, they eas- ily lend themselves to experimental and statistical evaluation. Narrative models are inherently less structured, which makes them harder to evalu- ate. But the strengths of paradigmatic models comes at a cost:

    Paradigmatic models are normative, focusing on how decisions should be made by hypothetical rational beings. In contrast, narrative

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    200 Juries and Legal Decision Making

    models are descriptive, focusing on how people actually make decisions. Paradigmatic models assume that the decision – making process is stable, that is, the same process is used by different triers of fact or by the same trier of fact across trials. Narrative models make no such assumption, although they acknowledge certain story elements may be stable. Paradigmatic models view trials as “ closed systems. ” They assume triers of fact base their decisions solely on the evidence presented at trial and evaluate only the legal arguments put forward by parties to the proceed- ings. In contrast, narrative models assume triers of fact may be just as interested in evidence that was not presented; they also accept that tri- ers of fact may construct their own story to explain evidence, rejecting all the legal arguments put forward by parties and drawing unexpected inferences from the evidence presented. Paradigmatic models view the legal decision as a simple binary choice, for example, a choice between accepting or rejecting a particular legal argu- ment (e.g., “ guilty ” versus “ not guilty ” ) or between accepting one of the legal arguments advanced by opposing parties (e.g., “ Jones suffered injury due to negligent acts by Smith ” versus “ Jones suffered injury due to acts by Smith, but Smith did not act negligently ” ). But many legal decisions are much more complicated. For example, the “ decision ” in a coroner ’ s court may require the trier of fact to determine the cause of death in a given case and to make recommendation for preventing future deaths.

    Paradigmatic and narrative models both tend to focus on the trier of fact as an individual person, even when that person is part of a group (e.g., an administrative tribunal, review board, jury, or panel of judges). Both mod- els ignore the interpersonal or social dimension of legal decision making.


    The jury system allows ordinary citizens to play a role in the administra- tion of justice by cleaving the process of legal decision making in two: (1) juries function as triers of fact using the wisdom of a group and (2) judges function as triers of law using the wisdom of an individual. But does using a jury system lead to better — or even different — decisions?

    Research using various methods has compared the legal decision made by jurors (mock or actual) to those of legal professionals ( lawyers or judges) based on the same facts and legal instructions. According to Diamond (2004), the differences between the two groups are rather small. The rate of agreement between laypeople and experts with respect to fi nal decisions generally is very high, ranging from 74% to 90%. Also,

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    laypeople and experts are infl uenced by evidence in very similar ways. For example, both groups have trouble ignoring evidence deemed inadmissi- ble, are susceptible to the hindsight bias, and put little weight on statistical evidence. Perhaps the only reliable difference is that when laypeople disa- gree with experts with respect to fi nal decisions, laypeople more often vote in favor the defendant or respondent.


    Legal decision making strives for justice by considering matters of law and fact. Legal decisions are made by a range of people acting as individuals (e.g., judges) or as groups (e.g., judicial panels, tribunals, review boards, and juries). The unique characteristic of modern juries is that they are made up of ordinary citizens. In common law jurisdictions, all legal decision makers are expected to be impartial. But jurors are also expected, and indeed selected, to have no special knowledge concerning matters of fact in the case at hand or concerning matters of law, either in the case at hand or more generally. It is ironic that the jury, originally developed in part because it had specifi c knowledge that might assist the trier of law, has evolved into a group chosen because it is specifi cally ignorant. Psycholegal scholars have attempted to overcome the considerable obstacles to research, and their fi ndings reveal jurors as neither incompetent amateurs nor the last bastions of justice, but rather human beings struggling collectively to overcome their individual limitations to reach a just decision.


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    Alternates Challenge for cause Change of venue Charge to the jury Continuance

    • • • • •

    Key Terms 201

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    202 Juries and Legal Decision Making

    Decision rule Grand jury Hung jury Judicial instruction Juror Jury Justice Legal decision making Mock jury research Narrative models Operational decision making Paradigmatic models Petit jury Peremptory challenge Scientifi c jury selection Story model Triers of law Triers of fact Venirepersons Voir dire


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