American juries suffer from a dual public image, said Shari Seidman Diamond, a psychologist and lawyer who holds a joint appointment at the American Bar Foundation and Northwestern University. They are seen on the one hand as incompetent and biased, as well as naïve and easily manipulated, and on the other as a repository of folk wisdom and common sense.
Diamond, a nationally recognized expert on jury behavior, was speaking at a CLE in the City program called “How Juries Think and Behave: Empirical Research from Real Jury Deliberations,” held at the law firm Orrick Herrington & Sutcliffe during the ABA Annual Meeting in New York City. The program was sponsored by the American Bar Foundation.
The most accurate description on juries, she said, is that they are a practical group of problem solvers working in an adversary context.
Diamond described the findings of the Arizona Jury Project, funded by the American Bar Foundation and the National Science Foundation, which looked at 50 civil juries, using videos or transcripts; exhibits; judge, attorney and juror post-trial questionnaires; and jury deliberations.
The findings show that jurors are very attentive and aware of their adversary position, Diamond said. They notice body language and are fully aware of who is paying for expert testimony.
Diamond said the process of choosing a foreperson happens quickly. Men are more likely to be chosen foreperson than women, as are professionals and managers. The best predictor of who will be foreperson is the one who took the most notes during the trial.
In more than 60 percent of jury deliberations, someone calls for a vote within the first 10 minutes, but in two-thirds of those instances the vote is not completed due to a discussion over details and a disagreement about what they meant.
Diamond said juries are flexible and respond to case demands. For instance, the longer the trial is, the longer the time the jury takes before the first vote.
During deliberations, juries work to develop the most plausible reconstruction of events that led to trial. They:
- focus on inconsistencies in behavior and testimony,
- are sensitive to sources of witness interest,
- draw on common knowledge and personal experience,
- search for reference points, and
- attend to legal instructions.
Juries generally agree on common knowledge (i.e., the consensus agrees you should lock your doors) and common standards (how one ought to behave in certain circumstances), and they factor in “hypotheticals” (how the juror would have behaved in the same situation).
Arizona permits jurors to submit questions during trial. Jurors submitted 829 questions across 50 trials, and judges permitted answers to 76 percent of them. Most of the queries were to clarify the information presented.
During trials, jurors “get doused with a kettleful of law … that would make a third-year law student blanch,” Diamond said.
Previous research showed that there were substantial failures in the jury instruction process, she said. Arizona gives jurors copies of the instructions to take with them into deliberations, but not every state does.
The most common issues with instructions are language problems and omitting any mention of issues the jury shouldn’t consider.
In 92 percent of cases, at least one instruction was read aloud among the jurors. But although jurors discussed instructions a lot, they were inaccurate in comprehending them 17 percent of the time.
Juries are detail-oriented, but worry about things that are not on the list. Errors in understanding are often corrected by another juror or the judge.
Diamond said the research shows that the ways to promote comprehension of jury instructions are to:
- provide jury instructions for each juror,
- write “plain language” instructions, and
- attend to the relationship among the instructions.
Summing up, Diamond said jurors are:
- work to “get it right,” and
- can use your help.
New York State Judge George Silver said that in his experience jurors look to the judge for acceptance, and in his court they tell them not to read into the judge’s voice or expression.
He said he spends a lot of time with the lawyers on jury instructions.
Stephen D. Susman of Susman Godfrey LLP in Houston said he was surprised juries didn’t vote in the first 10 minutes more often, just so they can see where they all stand. But, he said, “people don’t want to vote if they’re not going to win.”
Susan Fillichio, a trial consultant with DecisionQuest in Los Angeles, said she believed juries should be empowered, since people are reluctant to participate in jury duty, and said it’s important for them to make the decision on who’s the foreman.
She said she was surprised that the research showed such a low number of juries didn’t understand the instructions, as she sees it frequently in her work. Juries struggle with applying the law, she said, and she favors clarifying jury instructions, but doesn’t want to give jurors instructions on how to deliberate.
Susman suggested that every juror should get an iPad that would have on it jury instructions, a glossary of terms, the cast of characters involved in the case and the case documents. “We need it to restore confidence,” he said.
“We need to change with the times,” Silver agreed.