By Dr. Ken Broda Bahm:
It isn’t uncommon for lawyers to see a jury in static terms. An attorney I once worked with referred to a jury as “twelve bales of hay.” Because it isn’t possible to fully know what a jury is thinking until the end, that fundamental uncertainty can lead some to diminish the complexity or humanity of a jury. The real picture, of course, is more complex. A jury is both nuanced and dynamic. They are individuals to start with, but begin to coalesce into a cohesive group as the trial moves on.
A recent article highlights this dynamic quality of a jury. Appearing in the Wicked Local publication of Medford, Massachusetts, the article is by multimedia journalist Robby McKittrick who writes about his own recent experience of serving on a federal criminal jury in Boston, and applies his past training in social psychology to understand what was going on. The article is worth a read. In my view, his observations highlight the dynamic nature of a jury, and specifically the ways that jury will grow and mature over the course of the trial. In this post, I will call out four observations drawn from Mr. McKittrick’s story.
They Will Grow to Appreciate Their Service
McKittrick begins his article by sharing the common feeling of dread that accompanies the jury summons:
When I received my jury duty notice in the mail last year, I reacted like any person receiving the dreadful news: Ugh.
He even wore a “Beach, Beer, Burrito, Repeat” t-shirt, thinking this would make him less attractive as a juror. But when that didn’t work and he was ultimately seated, his opinions began to change. Particularly, once he was done with the service, he found it interesting and worthwhile:
Little did I know my six days of jury duty would be an interesting window into how the criminal justice system works and the significant effect of social psychology on the legal system.
They Will Gain Confidence
Jurors begin with discomfort about the process, but very quickly become acclimated.
During the first day of the trial, I was nervous and uptight. In fact, it appeared that everyone was.
But that changed quickly, in a way that left jurors feeling not just more settled but also more empowered:
After the first day, all of the jurors began to loosen up and appear more comfortable. We realized we had all of the power, and once we became comfortable, we felt that power and significant responsibility to decide the case. The lawyers and the judge were all relying on us to make the right call.
They Will Bond
One of the more interesting observations from the article is a description of the jurors’ process of getting to know each other. He notes,
There was not a lot of conversation in the first couple of days, but by the end of the week, people started interacting, smiling, and laughing more, and we all became friendly…By the end of the week, we had a shared experience, and we could relate to one another. This new shared experience made us all closer.
This description suggests one possible argument against allowing jurors to discuss the case in advance of deliberations. Apparently, an inability to talk about the case encourages jurors to talk about other things, and that leads them to get to know each other which makes the deliberations easier once they begin.
If we had to deliberate on the first day of trial, I do not think we would have been able to talk as openly as we did at the end of the trial. However, after spending the week together and sharing the same experience, we felt more comfortable with one another.
They Will Create Consensus
Once deliberations started, McKittrick described the jury as being split about evenly over guilt versus innocence. Once each side took the time to explain, that shifted fairly quickly to a vote of 11 to 1 in favor of conviction on four counts. After that quick near-consensus, however, the jury stayed on that brink for some time. They deliberated through a Friday, then a Monday, then they reported being deadlocked to the judge. After receiving what sounds like an Allen charge, they resumed.
We returned to the jury room once again, and after more persistent “Hail Mary” attempts to persuade the holdout juror to vote guilty, a shocking thing happened. The hold out decided to change her vote on three of the four counts! Therefore, we reached a consensus that the defendant was guilty on three out of four counts, 12 to 0. That was good enough for the group.
That result points out why true deadlocks occur, but are not as common as many think.
Conforming to group pressures is extremely powerful, and it is difficult to be the one person to disagree with the group. If an individual agrees with everyone else, it almost dissolves a person of responsibility.
All of these observations point out the way that a jury changes over time. The jury you start trial with is not the same as the jury you end with.
There were only two points where I found myself disagreeing with Mr. McKittrick.
One, he writes, “Nobody wants to have jury duty.” False! Jury consultants all over the country, including this one, would love to have jury duty. My colleague has managed it, and I am still hoping.
And two, he writes that a jury that includes social factors is being influenced by something external. Discussing the role of group psychology, he writes, “It is undeniable that outside forces play a significant role in the legal system. It’s scary when you think about it, isn’t it?” No, it isn’t scary. That is how the jury is supposed to work. As an institution of democratic participation and popular judgment, a jury operates by design as something other than a rulebook or a group of judges. A jury is social, and that is as it should be. The group dynamic is part of the uniqueness and beauty of the jury system.
Tuned-in advocates pay attention to that social dynamic and notice how jurors interact over time. That doesn’t mean staring at them uncomfortably throughout trial. But it does mean keeping them in the universe of what you’re noticing in trial: Who is talking to who? How comfortable are they becoming? Who seems to be emerging as a leader? You won’t always know what they’re thinking, but you are part of their reference group, so make them part of yours.
Other Posts on Jury Dynamics:
- See the Process and Not Just the Product in Deliberation
- Note the (Small) Difference a Female Jury Can Make
- Build Resistant Jurors: Lessons from the Aurora Theater Trial
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