By Dr. Ken Broda Bahm:
There is the solemn moment when the jury returns to the courtroom, delivers the verdict, and then everyone is done. But often, it is with one question left hanging in the air: Why? Whether you’ve won or lost, or something in-between, there is a very human drive to know the jury’s reasoning. How did they react to the stories? Did they buy the key witness? Could they follow the instructions? What evidence turned out to be decisive to them? When trial truly ends with a simple verdict, and not a full exploration of the jury’s reasons, it can feel a little incomplete: a whimper and not a bang.
One article currently in press for the University of Illinois Law Review (Dudzinski, 2013) aims to change that. The article compares the American jury model of independent citizen panels to the European model where judges and jurors deliberate together. The evidence, she notes, favors the effectiveness of the American system (U.S.A.!), but she adds that the occasional public image problem of American jury verdicts could be remedied with one innovation: verdict justification. That means “juries would be required to answer a series of questions that could shed light on their reasoning and thought process.” This additional step over and above a formal verdict would, according to the author, “greatly enhance the jury’s accountability to the parties, the lawyers, and most importantly, the public.” Thinking back (way back) on my school debate experience, it reminds me of what we used to call the “RFD” (debaters love acronyms) or the “reason for decision.” The round wasn’t over until the judge had given an often quite involved oral defense of the decision. No one expects that of juries, but the notion of a jury’s RFD is still worth thinking about both inside the trial, and especially outside of it.
Taking the University of Illinois Law Review article as a jumping off point, it is clear that we can look at it both formally (as a genuine proposal for legal reform) and informally (as a piece of practical advice on what is useful when working with juries). Let’s consider each.
The Formal Route: Should Courts Ask for Verdict Justification?
This is what Jean Dudzinski proposes in the article. In both criminal and civil cases, verdicts for either side should be accompanied by the jury’s collective response to a series of questions, designed by counsel and the court, on the jury’s general reasons for their decision. So, not just the “what” of the verdict but the “why” as well. Drawing upon the social science literature, she notes that citizen juries tend to be quite effective — more so then their judge-led continental counterparts, where judges predictably tend to dominate. Yet American citizen juries still suffer in the public eye when the verdicts are not seen as legitimate. She makes the case that verdict justification could add legitimacy by putting more focus on the reasons and not just the result. The questions could be narrowly framed in order to get at rationale without throwing open the doors on the privacy of the deliberation process.
Whether this would or wouldn’t have the effect of improving juries in the public eye (and responses to juror media interviews after the George Zimmerman and Casey Anthony trials give reason to doubt), I can still see some clear benefits to the persuasive process of trial: more accountability and a better understanding of how the jury understands its verdict.
Thinking about how something like this might come about, it is plausible that judges could use their broad discretion to try it out. Since judges will sometimes allow jurors to make a statement on the record after a case, it seems like they could choose to invite, not necessarily require, the jury to accompany a verdict with a paragraph or two explaining why.
Of course, there are some limitations on the likelihood of verdict justification as a formal reform. Judges, and lawyers too, tend to be very conservative at the procedural level, and extremely protective of juror’s rights and the private sphere surrounding deliberations. For that reason, it is a good thing there are ways of putting the spirit of it into practice without actual reform.
The Informal Route: How We Already Are, or Should Be, Asking for Verdict Justification
Of course, asking for the “why” and not just the “what” is an essential principle that runs through the methodology of the mock trial. After asking for a leaning during case presentation, we always follow that up with a request for the mock juror’s reason for that leaning. And once the case reaches deliberation stage, we will always provide jurors with an orientation letting them know we care more about the reasons for their decisions than we care about the decisions themselves – “so, even if you find you all agree on a point, take a few moments to talk about why you feel that way.”
But the real opportunity to dive into an actual jury’s verdict justification is post-trial. As often as the local law or the judge allows, the former jurors should be contacted and interviewed. It works best when these individuals are:
- Interviewed individually so groupthink doesn’t influence their answers
- Interviewed by a perceived neutral (not one of the trial attorneys) so they don’t shade their answers based on what they think the interviewer wants to hear, or avoid topics where they believe they could be challenged on the facts
When I conduct post-trial interviews in that fashion, I’ll often notice one fact that seems to undercut Dudzinski’s proposal, but that arguably makes the verdict justification even more interesting: Jurors will often disagree on the reasons why they reached the same result. Think of the diversity of people who vote for the same political candidate: They agree on the result, but may be all over the place on the reasons why. Same with juries, but that is an important point to know.
Even if we had what the author is asking for in formal verdict justification at the end of a case, it is likely we would still want that follow-up. Perhaps we would want a post-trial interview even more, since attorneys would get a taste, but not a complete explanation of the verdict. Ultimately, more post-verdict discussion of the trial outcome is the right direction. It is helpful to think of a jury’s decision, not just as a noun — a static thing that happens at the end of the case — but as a verb — something that a jury does. The more we ask, probe, and examine the “why’s,” the more we understand the full dynamics of that action.
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Other Posts on Mock Trials and Post Verdict Interviews:
- Treat Post-Verdict Juror Interviews as Education, Not Discovery
- Don’t Be Entranced By Statistical Claims From MockTrial Research
- Don’t Ride with ‘Frequent Flyers’ in Your Mock TrialResearch
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Dudzinski, J.E. (2013 in press). Justification for Juries: A Comparative Perspective on Models of Jury Compostion. Illinois Law Review 1615. URL: http://illinoislawreview.org/wp-content/ilr-content/articles/2013/4/Dudzinski.pdf
Photo Credit: Ksayer1, Flickr Creative Commons