Illusion Unanimity 110716

The Illusion of Unanimity

Edward P. Schwartz, Ph.D., M.S.L.

© 2016 DecisionQuest | 1

Competing Conceptions of Jury Deliberations

From the majority opinion in Apodaca v. Oregon (at 414):

We cannot assume that the majority of the jury will refuse to weigh the evidence and reach a decision upon rational grounds, just as it must now do in order to obtain unanimous verdicts, or that a majority will deprive a man of his liberty on the basis of prejudice when a minority is presenting a reasonable argument in favor of acquittal. We simply find no proof for the notion that a majority will disregard its instructions and cast its votes for guilt or innocence based on prejudice, rather than the evidence.

Competing Conceptions of Jury Deliberations

From Douglas’s Dissenting Opinion in Johnson v. Louisiana (at 388):

The diminution of verdict reliability flows from the fact that nonunanimous juries need not debate and deliberate as fully as must unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or by Louisiana, even though the dissident jurors might, if given the chance, be able to convince the majority. Such persuasion does, in fact, occasionally occur in States where the unanimous requirement applies… The Court now extracts from the jury room this automatic check against hasty factfinding by relieving jurors of the duty to hear out fully the dissenters.

Two-Step Jury Decision-Making


EvidenceTestimonyStandards

The Factsof the Case

The Verdict

Information

Processing

Objective Evaluatio

n

Values and

Justice

Subjective

Evaluation

Information Aggregation

Preference Aggregation

Deliberative Democracy and the Jury

Abramson’s Conclusions:Embrace Diversity in PopulationDeliberations should include all VoicesPeremptory Challenges are UndemocraticVerdicts should reflect Common ValuesUnanimity improves Completeness and Inclusiveness“But Jeff, what happens

if they can’t agree?”

Deliberative Democracy and the Jury

Democratic Foundations:Jurors exercise discretionReasonable disagreement about exercise of discretionJuries should represent community – cross sectionalAll votes should count equallyAll jurors should vote sincerely – reflected in verdict System must resolve cases in presence of persistent disagreement“But how often does disagreement really

persist?”

The possible consequences of persistent juror disagreement

Consensus Failure

Unanimous Consensus

DeliberationsAcquittal

Conviction

Insincere Voting

Hung Jury

??? %

??? %

Conviction ??? %

6 %

Acquittal ??? %

“Not a big problem”

“But what about all of this? Is this a big problem?

How often can’t they agree?

“If it were entirely up to you as a one-person jury, what would your verdict have been in this case?”

Distribution of Case Outcomes – Waters and Hans Study 2009

368 Total Felony Trials3,362 Jurors

Four Jurisdisctions:– Bronx, New York– Washington, D.C.– Los Angeles,

California– Phoenix, Arizona


(103) Acquittals

28%(32) Hung9%

(233) Convictions

63%



(232) Convictions

(233) Convictions

(1) 4 Conforming Dissenters

0.4%(17) 2 Conforming Dissenters

7%(7) 3 Conforming Dissenters

3%(56) 1 Conforming Dissenter

24%(152) Unanimous Consensus

66%



(103) Acquittals(103) Acquittals

28%(32) Hung9%

(232) Convictions

63%

(103) Acquittals

(4) 4+ Conforming Dissenters



22%(47) 1 Conforming Dissenter

46%(12) Unanimous Consensus

12%


What would have happened if every juror had voted sincerely?


(103) Acquittals

28%(32) Hung9%

(233) Convictions

63%




(103) Acquittals

28%(32) Hung9%




(103) Acquittals

28%(32) Hung9%

(152) Convictions

41%




(32) Hung9%

(152) Convictions

41%




(32) Hung9%

(152) Convictions

41%(12) Acquittals

3%




(152) Convictions

41%(12) Acquittals

3%




(152) Convictions

41%(12) Acquittals

3%(204) Hung56%

Confronting the Reality of Criminal Jury Verdicts

Unanimous Consensus

Unanimous Verdict ≠

Consensus Failure is:• Normal• Prevalent• Problematic• Masked

The Unanimity Requirement is:• Arbitrary• Deceptive• Inefficient• Undemocratic

“What to do When Jurors Disagree...”

If Not Unanimity, What?

Is Unanimity Really the Default?1. The rule is a historical relic from a time when jurors

were “compurgators” – witnesses who testified about disputes back in the 14th century.

2. England (Remember them?) went to 10-2 verdicts in 1967.

3. Most of the States of Australia use non-unanimous verdicts.

4. Louisiana (9-3) and Oregon (10-2) haven’t used unanimity for centuries.

5. Scotland uses 15 person juries, deciding under simple majority rule.

6. All of the “mixed systems” around the world use something between simple majority and 2/3 majority rule.


What would have happened if the Louisiana 9-3 voting rule were used?

-- with sincere voting!


(103) Acquittals

28%(32) Hung9%

(233) Convictions

63%





(103) Acquittals

28%(32) Hung9%





(103) Acquittals

28%(32) Hung9%

(231) Convictions

63%





(32) Hung9%

(231) Convictions

63%





(32) Hung9%

(231) Convictions

63%(99) Acquittals

27%





(231) Convictions

63%(99) Acquittals

27%





(231) Convictions

63%(99) Acquittals

27%(12) Hung3%





(231+21) Convictions

69%(99) Acquittals

27%(12) Hung3%





(231 + 21) Convictions

69%(99 + 4) Acquittals

28%(12) Hung3%

ABA Recommends only Unanimous Verdicts

Illusion Unanimity 110716

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