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Twelve Angry Persons

The Jury: Trial and Error in the American Courtroom

by Stephen J. Adler
Doubleday/Main Street, 304 pp., $12.95 (paperback forthcoming in October) (paper)

The Private Diary of an O.J. Juror: Behind the Scenes of the Trial of the Century

by Michael Knox, by Mike Walker
Dove Books, 300 pp., $5.99 (paper)

Hung Jury: The Diary of a Menendez Juror

by Hazel Thornton, with commentaries by Lawrence J. Wrightsman, by Amy J. Posey, by Alan Scheflin
Temple University Press, 200 pp., $14.95 (both forthcoming in November) (paper)

1.

About the case of California v. Simpson, one thing is certain: it has been in no way typical or even illustrative of criminal trials. Simpson’s fame, the huge cast of lawyers, the length of the trial, the intricacy of testimony, the thousands of hours on television, the bizarre taped statements of Mark Fuhrman—there has never been anything like it.

Still, legally speaking, the jury is the only audience. Even as millions have been watching, the evidence and exhibits all aim at swaying the small group who will be voting on a verdict. So for the rest of us, much of the drama consists of trying to guess how members of the panel are reacting to witnesses, reenactments, even to the composure of the man accused of a double murder. To this end, Court TV and CNN call in lawyers as commentators, since they are supposed to know how jurors respond to what happens in a courtroom. However, some recent books on juries, coupled with my own experience, have led me to conclude that lawyers may not be the best judges of how juries and jurors behave. What goes on within those closed rooms, where citizens are essentially on their own, often seems to elude even the shrewdest of legal experts.

Stephen Adler and Jeffrey Abramson provide very different pictures of these private proceedings. Adler discusses five cases, each of which, he seeks to show, resulted in an erroneous verdict. He says they are a fair sample of what is occurring in court-rooms every day. In the case accusing Imelda Marcos of stealing millions from the Philippine government, jurors were manipulated by astute lawyers and ignored convincing evidence showing that she had been stashing money away for years. In another case, where one tobacco company charged another with predatory price-cutting, the jurors understood only a small amount of the testimony. And in two local cases involving murder charges, they believed witnesses of dubious reliability. These results have led Adler to wonder “whether juries do anything well enough to justify our continuing reliance on them.”

Not the least problem, Adler says, is the practice that allows lawyers immense freedom to reject potential jurors. While covering trials as legal editor for The Wall Street Journal, he observed that “many of those who are removed appear to be more alert and unbiased than many who are seated.” Indeed, most of those chosen “are egregiously bad at determining when someone is telling the truth, inadvertently giving false testimony, or lying.” This would happen less often, he writes, if jurors were made aware of research findings showing that “liars typically make fewer hand gestures” and “tend to relax their face muscles.” Judges, he suggests, should “incorporate” such notions “into their legal instructions.”

But to Adler’s mind, even such steps are unlikely to alter the spectacle of juries “failing to see through the cheapest appeals to sympathy or hate.” The system, in his view, tends to winnow out the jurors who might be more skeptical. Jeffrey Abramson provides some figures that may support this view. In a recent year, he tells us, Massachusetts mailed summonses to 905,795 citizens; 253,436 actually appeared, of whom 118,277 were sent to a courtroom and 38,797 were chosen to hear a case. Abramson argues in favor of requiring unanimous verdicts. Currently in most parts of the country, juries in criminal trials are expected to come to a consensus, and, as it happens, they usually do. Nationwide, fewer than 6 percent of criminal cases end with irreconcilable disagreements. The percentage would be further reduced if verdicts of eleven to one, or ten to two, were allowed. But Abramson cites research showing that prosecutors would gain if the numbers of hung juries declined. “The reason,” he writes, is that

among juries deadlocked at 11–1 or 10–2, the holdouts were more than four times more likely to be holding out for acquittal than for conviction. Under a 10–2 rule, therefore, far more split juries return convictions than acquittals.

In describing members of the Simpson jury, commentators tend to emphasize the race and gender of the jurors as well as their age and occupation, the last a surrogate for income and social class. Since the defendant is himself black, the premise of most commentary has been that jurors of his own race will be more likely to accord him a presumption of innocence. For generations, prosecutors could make sure that blacks charged with crimes would be judged by all-white juries and they usually won convictions. Over the last two decades, since its 1975 decision in the case of Taylor v. Louisiana, the Supreme Court has held that jury pools must be drawn from a “cross section” of the community. While that requirement does not ensure that blacks will be selected for particular cases, in practice it has meant that more blacks actually serve. Clearly, race remains a major factor in determining attitudes toward crime. Polls continue to show that most whites who have opinions say they believe Simpson is guilty, whereas most black respondents would vote for acquittal. Hence the widespread view that Simpson’s jurors have biases associated with their race.

The Taylor decision also held that women as well as men must be represented on the lists from which juries are drawn, although so far there has been no requirement that people of different ages and incomes be included. Yet, as with race and gender, these factors, it could be argued, affect not only the ways we evaluate evidence but our overall assessment of the person on trial. Lawyers, sometimes with the aid of consultants, take account of what they suspect may also indicate a juror’s tendencies—loquacity or rigidity, even hairstyles and dress. In the Simpson trial, they had plenty to go on since prospective jurors had to write out answers to 294 questions on their experiences and preferences. Because counsel are allowed dozens of challenges, even unpublicized trials can run through upward of one hundred citizens before finally settling on a panel. As a result, most Americans’ experience with the system has consisted of showing up and being rejected, largely on the basis of lawyers’ intuitions.

Of course the real question is what the twelve supposedly well-screened persons will do when they sit down together. Jeffrey Abramson, after reviewing the relevant research, concluded that “there is no scientific way to predict whether an individual juror will conform, in any one case, to the general attitudes of his or her group.” Michael Knox’s memoir substantiates this view. He served on the Simpson jury from January 11 to March 1, more than enough time to get to know everyone in the sequestered group. Contrary to some news reports, he writes that the jurors did not rigidly divide up according to race or sex or age or class; that both the friendly feelings and the antagonisms among the jurors cut across these lines. As it turned out, the most serious tension was between two black women, both of whom eventually left the jury. Moreover, in transcripts released on July 24, a fifty-year-old black woman juror challenged claims by another black woman juror, who was later dismissed, that the court deputies had favored the whites on the panel. “I don’t think anybody got any more treatment than anybody else,” she said. Indeed, in the confined quarters, personal quirks mattered more than conventional sociological distinctions.

Knox and another former member of the Simpson jury, both of whom are black, have made public their opinions. He says he was “leaning toward a guilty verdict”; while she has called the prosecution case “a whole lot of nothing.”

Except when bias is openly expressed, the elaborate efforts by lawyers and then hired consultants to predict how people will behave if placed on a jury are usually futile. Abramson writes that how they vote will turn mainly on “the fluid group dynamics that influence jury deliberations.” Unfortunately, he says hardly anything beyond this. One reason may be that as a lawyer and a former prosecutor, he has been exempted from jury duty. Adler, who also has a law degree, was once chosen for a civil trial but the case was settled before deliberations began. Both writers spoke with friends who have been jurors; but, oddly, neither book quotes from these conversations. For their information about juries the two writers rely almost entirely on legal scholars, few, if any, of whom have ever been inside a jury room either.

In 1955, a group of University of Chicago professors were allowed, without the jurors’ knowledge, to make recordings of deliberations in a few Kansas civil cases. Word of this got out, an uproar ensued, and over half the states proceeded to outlaw any kind of taping.1 Since then both research projects and real-life litigants have had to depend on simulations. Abramson describes how practice juries have been assembled by lawyers for companies like MCI and General Motors. Various kinds of arguments are tried out before these paid panels, whose deliberations are then observed. These exercises, we are told, help to shape the lawyers’ trial strategies. In academic experiments students are paid to watch films of fictional trials and then deliberate about them. One such project found that requiring unanimity took 138 minutes to reach a verdict, whereas allowing a 10–2 vote cut the time to 103 minutes.2

2.

As it happens I have myself during the past twenty years been on five juries, all of them in criminal cases, including two involving murders. I look forward to being summoned, not as a civic duty but because I find serving an exhilarating experience. So I know what Adler means when he says that speaking with former jurors.

was like having a conversation with someone who was just back from Nepal or who’d just had sex for the first time. They betrayed the same sense of wonder at having been to a new place and having seen life differently.

When before has a citizen been given so grave a responsibility? Freedom or imprisonment; the triumph of truth or of tragic error; adherence to law or malice and caprice—all this and more rests on a juror’s shoulders. Nor will it do to say that the onus is shared with eleven others. In all of the juries I served on, I could see each member acting as if the verdict was his alone. It should be obvious that no simulation can carry this moral weight.

As part of this process, something one could call bonding begins, starting as soon as the last member has been chosen. As anyone who has served on a jury can report, jurors find themselves spending a lot of unsupervised time together, even in proceedings that may last only a week. In the Simpson trial, observers have been struck by how often the jurors have been told to leave the courtroom, sometimes for prolonged periods. In my own experience as a juror, we were usually kept waiting in the morning or after lunch, because the judge had motions from other cases to deal with. Confined to a small anteroom, bus drivers and bond traders are soon on first-name terms. Indeed, I have found it rare for anyone to hide behind a newspaper or a book; in one case we arranged to have lunch together every day at a nearby restaurant. Yet in all our conversations, we, like all other American jurors, were forbidden to talk about the one thing that was uppermost in our minds. The theory is that until the judge’s charge has been given and deliberations begin, only the proceedings themselves should influence the juror’s judgment of the evidence. So during the trial, each juror considers the testimony in isolation, almost as if he were watching the proceedings by himself on television.

  1. 1

    There has been at least one recent case where deliberations were taped, in this instance with jurors’ knowledge and consent. The case involved a Wisconsin man charged with illegal possession of a firearm, and it took the jury almost two and a half hours to reach a verdict. Unfortunately, the Frontline version—televised earlier this year—was edited down to less than an hour. As a result, it shows dramatic turning points rather than the more mundane interchanges that build a consensus.

  2. 2

    For reports on simulation experiments, see Reid Hastie, editor, Inside the Juror: The Psychology of Juror Decision Making (Cambridge University Press, 1993).

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