Literature Review on Jury Decision Making
by Kelly Hoffart
for CTA-399
December 15, 2003
The American practice of trial by jury is central to our idea of justice. The Seventh Amendment of the Constitution states, in part, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” It is sufficient to believe that since this is one of the original ten amendments that even the founding fathers believed that it was essential in order for true justice to be served. But why do we see it as such an indispensable factor in serving justice? Do they really make better decisions than judges? How do they make their decisions? And what factors affect their decisions?
In jury trials, there is still a need for a judge to moderate the trial and to make sure that the laws for trials are being followed. But this can have unwanted effects. A judge’s apparent bias can affect the outcome of a trial (Blanck, Rosenthal, & Cordell, 1985). And the influence of the judge is not necessarily overt, it is usually manifested in much more subtle ways. Blanck, et. al. (1985) says, “trial judge’s expectations for trial outcome can predict the manner in which the judge delivers instructions to the jury...and may predict and possibly influence the outcome of jury trials” (p. 92). Their expectations may also influence the courtroom climate (Blanck, et. al. 1985). Blanck, et. al. (1985) found that the defendant’s record relates to the degree of nonverbal influence exhibited by judges, although this is often information that the jury is not allowed to see. This is especially complicating for appeals, because non-verbal behavior is not recorded, and appeals courts usually only look at transcripts of the trial.
So, since judges influence the outcome of the trial anyway, why not skip the jury? Do they really make better decisions? A major assumption is that putting six to twelve people in a room together to solve the problem will come up with a better solution than the average of the whole group (Ellsworth, 1989). However, there are many critics of jury trials, especially in civil cases (Vidmar, 1989). One of the problems that critics often cite is that the better educated jurors and jurors with expertise pertinent to the case may be excused from the case or challenged during voir dire (Ellsworth, 1989), thereby making the jury incompetent. But, these critics rarely put forth a standard for competence (Ellsworth, 1989).
Would a judge make a better decision? Vidmar (1989) found that juries reached the same verdict as a judge would have on his own in 78% of 3000 cases. In cases of discrepancy, the jury will be more likely to favor the defendant, and isn’t it better to let a guilty man free than to imprison an innocent one?
So, since we’ve established that juries do make decisions at least as good as a judge’s, then we need to understand how it is that juries make their decisions? A common answer to this question is that jurors create stories (Diamond, Casper, & Ostergren, 1989, Ellsworth, 1989, MacCoun, 1989, Pennington & Hastie, 1986). Pennington and Hastie (1986) found that evidence is evaluated as it fits into a plausible story, and any gaps between testimonies are filled by a plausible story. The stories themselves are based on cause-effect reasoning (Pennington & Hastie, 1986). Ellsworth (1989) found that “deliberation seems to work quite well in bringing out the facts and arriving at a consensus about their sequence. Errors are corrected, and irrelevant facts and implausible scenarios are generally weeded out” (p223).
So, the jurors rarely disagree on the facts (Ellsworth, 1989). The relevant issue at hand is the law. The stories themselves are directly related to elements of possible verdicts (Pennington & Hastie, 1986), and the verdict is specifically how the law applies to the facts. Votes are only likely to change when discussing the law, and, though they take the law seriously, juries may not be able to understand it (Ellsworth, 1989). The jurors may also act as a mediator between the law and the norms of the community (Diamond, Casper, & Ostergren, 1989). According to Reskin and Visher (1986), “facts and values in a trial are intertwined in jurors’ decisions” (p. 435). Is not applying only the law a problem? Possibly not, as the writers of the Constitution undoubtedly intended jury trials to partly balance community norms with the law.
But the verdicts may not be important if the stories are biased. Pennington and Hastie (1986) brings up a relevant problem: do the jurors construct a story and then decide a verdict, or vise versa? The first vote of the jury almost always determines the outcome of the deliberations (MacCoun, 1989), in fact, this is true in over 95% of cases (Tanford & Penrod, 1986). According to MacCoun (1989), conformity pressure is a major issue in jury decision-making. This finding was corroborated by Tanford & Penrod (1986). At least the jurors that want to acquit have more leverage (MacCoun, 1989), so they should be more likely to err on the side of “not guilty.” And there are other undesirable factors in jury decision-making, although they are more important when the prosecution’s case is weak (Reskin & Visher, 1986).
One of these is the attractiveness of the defendant. Darby and Jeffers (????) found that defendants that are more attractive are convicted less often and punished less severely, since the jurors see them as being more trustworthy and happier. The jurors’ own attractiveness interplays with this effect. Unattractive jurors punish unattractive defendants less severely, since they feel they have something in common, while all jurors seem to favor attractive defendants (Darby & Jeffers, ????). In effect, this makes moderately attractive defendants the most vulnerable to severe sentences. But this is not any different from a judge’s decision, as they are also affected by the attractiveness of the defendant (Downs & Lyons, 1991).
Jurors are also prejudiced racially. Gordon (1990) found that jurors are more likely to view the cause for the crime as an internal one if it matches demographic stereotypes, i.e. blacks are more likely to commit armed robbery and whites are more likely to commit fraud. This causes them to recommend longer sentences. And the juror’s own race affects their sentences. Overall, “black subjects...gave significantly longer sentences regardless of defendant race” (Gordon, 1990, p. 981).
Prior juror experience is also an unwanted factor in the process of jury decision-making. Himelein, Nietzel, and Dillehay (1991) found that juries with more experience tend to give harsher sentences. They believe that this could be caused by a loss of their belief in the concept of “innocent until proven guilty.” Previous experience with the prosecutor (they are more likely to see the same prosecutor multiple times than the defense attorney) may also cause the jurors to trust him more. Not only that, but when they become more familiar with the judge’s instructions, they are more likely to disregard them (Wiener, Habert, Shkodriani, & Staebler, 1991).
One of the ways that courts try to reduce jury bias is by blindfolding the jury to evidence that would be “unduly biasing” (Diamond, Casper, & Ostergren, 1989, p. 248). They may also blindfold the jury to parts of the law, as in 50% rules for comparative negligence cases and trebling rules.
The major problem with jury research is methodology. The Supreme Court has ruled that it is illegal to make any recordings or observations of actual jury deliberations. This has led to major complications in getting externally valid results from jury research. Many researchers have avoided this by simply comparing the results of jury deliberations with other factors, leading to high validity but to low understanding of the actual deliberation process. Other researchers have found ways to create artificial jury conditions, which leads to a good understanding of the process but to low external validity.
Tanford and Penrod (1986) used actual trial videotapes and videotaped mock juries in groups of six. They used content analysis and self-report measures. The juries were allowed one hour to deliberate.
Using actual trial videotapes does a great deal to improve external validity for the study. An artificial trial situation would have almost no external validity whatsoever. There is almost no other alternative to using this method. The only major disadvantage is that it is still not an actual trial, so the jurors may not take it as seriously, but there seems to be no way around this. The content analysis seems to be well-implemented, and the self-report measures are a valid measure of juror certainty. The major problem with this study is that they only allowed one hour for deliberations. If the jurors would be willing to spend more time, then the researchers should allow it to improve external validity, as a normal jury would not be so limited. This is the most important mistake that the researchers made.
Wiener, Habert, Shkodriani, and Staebler (1991) used summaries of trial transcripts, in which they changed some of the included information for different groups of mock jurors. They administered self-report measures to measure the jurors’ decisions.
The use of summaries of transcripts leads to less external validity. In this case, it is almost necessary, however, because they were adding and removing different elements to the case to find effects of each element. It would have been better to use trial videotapes and edit them to show the desired elements. Using a self-report questionnaire seems to be good to find out individual juror differences, but it does not show us anything about how this works in real deliberations, since the jurors were not even asked to deliberate. This study would have benefited from videotaped and content coded deliberations that would have taken place after all the elements in the original study.
Reskin and Visher (1986) coded trial data in actual trials, and interviewed the jurors for each of these trials. This seems to be an externally valid study. Since they used actual trials and the jurors for those trials, there are no problems with validity in this regard. Interviews are preferable to any other self-report measures. This study represents the most externally valid of all research designs legally available. The only weakness of this study is that the actual deliberations could not be observed, and so it is still difficult to test the actual deliberation process.
Darby and Jeffers (????) generated used mock cases and self-report measures to test their hypotheses. This is a perfect example of what to avoid in testing jury decision making. Completely mock cases may have no external validity whatsoever, and the offenses contained within the mock cases were not realistic since none of them would result in an actual jury trial. They would have been better off using real court transcripts for the purpose of this study. The self-report measures without any deliberations provide little validity in the results, since there could have been some change in opinions during the deliberation process. They should have proceeded with a deliberation process and re-administered the questionnaire afterwards.
Himelein, Nietzel, and Dillehay (1991) used actual trial information, including verdicts and sentences. This type of study has no problems with external validity, and is excellent for finding overall trends. This type of study, though valid, can’t tell us anything about the actual process of jury decision making, and is difficult to control for specific variables without enough trial information.
These studies cover the variety of research methods employed in studying jury decision making. They highlight the best and worst of all methods and their relationship to external validity. They also point out the need to consider what the study is meant to determine in creating a research design. If the research is intended to study the deliberation process, mock jurors are needed and the participants should go through an actual deliberation process. If the research is intended to find trends without studying the process, actual trial data is needed, et cetera. But two things must be true to ensure external validity: actual trial data needs to be used, and deliberations cannot be ignored. Any use of summaries of transcripts or of artificial trials are the biggest threat to validity, and videotapes are preferable to transcripts. Self-report measures cannot replace the deliberation process, as a number of important things happen during this process. If at all possible, actual trials and jurors should be used.
I would actually recommend that the Supreme Court reconsider their ban on recording deliberations. They would simply have to set up a method to approve research and to protect the jurors. If this were possible, then truly valid studies of jury decision making could be conducted, and we would understand what happens in the deliberation room. Until then, my recommendations should be followed in any research on the subject.
REFERENCES
Blanck, P. D., Rosenthal, R., & Cordell, L.H. (1985). The appearance of justice: judges’ verbal and nonverbal behavior in criminal jury trials. Stanford Law Review, 38, 89-151.
Darby, B. W., & Jeffers, D. J. (????). The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Society for Personality Research, ??, ???-???.
Diamond, S. S., Casper, J. D., & Ostergren, L. (1989). Blindfolding the jury. Law and Contemporary Problems, 52, 246-267.
Downs, A. C., & Lyons, P. M. (1991). Natural observations of the links between attractiveness and initial legal judgments.PSPB, 17, 541-547.
Ellsworth, P. C. (1989). Are twelve heads better than one? Law and Contemporary Problems, 52, 205-224.
Gordon, R. A. (1990). Attributions for blue-collar and white-collar crime: the effects of subject and defendant race on simulated juror decisions. Journal of Applied Social Psychology, 20, 971-983.
Himelein, M. J., Nietzel, M. T., & Dillehay, R. C. (1991). Effects of prior juror experience on jury sentencing. Behavioral Science and the Law, 9, 97-106.
MacCoun, R. J. (1989). Experimental research on jury decision making. Science, 244, 1046-1049.
Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision making. Journal of Personality and Social Psychology, 51, 242-258.
Reskin, B. F., & Visher, C. A. (1986). The impacts of evidence and extralegal factors in jurors’ decisions. Law & Society Review, 20, 423-438.
Tanford, S., & Penrod, S. (1986). Jury deliberations: discussion content and influence processes in jury decision making. Journal of Applied Social Psychology, 16, 322-347.
Vidmar, N. J. (1989). Empirical research and the issue of jury competence. Law and Contemporary Problems, 52, 1-8.
Wiener, R. L., Habert, K., Shkodriani, G., & Staebler, C. (1991). The social psychology of jury nullification: predicting when jurors disobey the law. Journal of Applied Social Psychology, 21, 1379-1401.
for CTA-399
December 15, 2003
Literature Review
The American practice of trial by jury is central to our idea of justice. The Seventh Amendment of the Constitution states, in part, “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” It is sufficient to believe that since this is one of the original ten amendments that even the founding fathers believed that it was essential in order for true justice to be served. But why do we see it as such an indispensable factor in serving justice? Do they really make better decisions than judges? How do they make their decisions? And what factors affect their decisions?
In jury trials, there is still a need for a judge to moderate the trial and to make sure that the laws for trials are being followed. But this can have unwanted effects. A judge’s apparent bias can affect the outcome of a trial (Blanck, Rosenthal, & Cordell, 1985). And the influence of the judge is not necessarily overt, it is usually manifested in much more subtle ways. Blanck, et. al. (1985) says, “trial judge’s expectations for trial outcome can predict the manner in which the judge delivers instructions to the jury...and may predict and possibly influence the outcome of jury trials” (p. 92). Their expectations may also influence the courtroom climate (Blanck, et. al. 1985). Blanck, et. al. (1985) found that the defendant’s record relates to the degree of nonverbal influence exhibited by judges, although this is often information that the jury is not allowed to see. This is especially complicating for appeals, because non-verbal behavior is not recorded, and appeals courts usually only look at transcripts of the trial.
So, since judges influence the outcome of the trial anyway, why not skip the jury? Do they really make better decisions? A major assumption is that putting six to twelve people in a room together to solve the problem will come up with a better solution than the average of the whole group (Ellsworth, 1989). However, there are many critics of jury trials, especially in civil cases (Vidmar, 1989). One of the problems that critics often cite is that the better educated jurors and jurors with expertise pertinent to the case may be excused from the case or challenged during voir dire (Ellsworth, 1989), thereby making the jury incompetent. But, these critics rarely put forth a standard for competence (Ellsworth, 1989).
Would a judge make a better decision? Vidmar (1989) found that juries reached the same verdict as a judge would have on his own in 78% of 3000 cases. In cases of discrepancy, the jury will be more likely to favor the defendant, and isn’t it better to let a guilty man free than to imprison an innocent one?
So, since we’ve established that juries do make decisions at least as good as a judge’s, then we need to understand how it is that juries make their decisions? A common answer to this question is that jurors create stories (Diamond, Casper, & Ostergren, 1989, Ellsworth, 1989, MacCoun, 1989, Pennington & Hastie, 1986). Pennington and Hastie (1986) found that evidence is evaluated as it fits into a plausible story, and any gaps between testimonies are filled by a plausible story. The stories themselves are based on cause-effect reasoning (Pennington & Hastie, 1986). Ellsworth (1989) found that “deliberation seems to work quite well in bringing out the facts and arriving at a consensus about their sequence. Errors are corrected, and irrelevant facts and implausible scenarios are generally weeded out” (p223).
So, the jurors rarely disagree on the facts (Ellsworth, 1989). The relevant issue at hand is the law. The stories themselves are directly related to elements of possible verdicts (Pennington & Hastie, 1986), and the verdict is specifically how the law applies to the facts. Votes are only likely to change when discussing the law, and, though they take the law seriously, juries may not be able to understand it (Ellsworth, 1989). The jurors may also act as a mediator between the law and the norms of the community (Diamond, Casper, & Ostergren, 1989). According to Reskin and Visher (1986), “facts and values in a trial are intertwined in jurors’ decisions” (p. 435). Is not applying only the law a problem? Possibly not, as the writers of the Constitution undoubtedly intended jury trials to partly balance community norms with the law.
But the verdicts may not be important if the stories are biased. Pennington and Hastie (1986) brings up a relevant problem: do the jurors construct a story and then decide a verdict, or vise versa? The first vote of the jury almost always determines the outcome of the deliberations (MacCoun, 1989), in fact, this is true in over 95% of cases (Tanford & Penrod, 1986). According to MacCoun (1989), conformity pressure is a major issue in jury decision-making. This finding was corroborated by Tanford & Penrod (1986). At least the jurors that want to acquit have more leverage (MacCoun, 1989), so they should be more likely to err on the side of “not guilty.” And there are other undesirable factors in jury decision-making, although they are more important when the prosecution’s case is weak (Reskin & Visher, 1986).
One of these is the attractiveness of the defendant. Darby and Jeffers (????) found that defendants that are more attractive are convicted less often and punished less severely, since the jurors see them as being more trustworthy and happier. The jurors’ own attractiveness interplays with this effect. Unattractive jurors punish unattractive defendants less severely, since they feel they have something in common, while all jurors seem to favor attractive defendants (Darby & Jeffers, ????). In effect, this makes moderately attractive defendants the most vulnerable to severe sentences. But this is not any different from a judge’s decision, as they are also affected by the attractiveness of the defendant (Downs & Lyons, 1991).
Jurors are also prejudiced racially. Gordon (1990) found that jurors are more likely to view the cause for the crime as an internal one if it matches demographic stereotypes, i.e. blacks are more likely to commit armed robbery and whites are more likely to commit fraud. This causes them to recommend longer sentences. And the juror’s own race affects their sentences. Overall, “black subjects...gave significantly longer sentences regardless of defendant race” (Gordon, 1990, p. 981).
Prior juror experience is also an unwanted factor in the process of jury decision-making. Himelein, Nietzel, and Dillehay (1991) found that juries with more experience tend to give harsher sentences. They believe that this could be caused by a loss of their belief in the concept of “innocent until proven guilty.” Previous experience with the prosecutor (they are more likely to see the same prosecutor multiple times than the defense attorney) may also cause the jurors to trust him more. Not only that, but when they become more familiar with the judge’s instructions, they are more likely to disregard them (Wiener, Habert, Shkodriani, & Staebler, 1991).
One of the ways that courts try to reduce jury bias is by blindfolding the jury to evidence that would be “unduly biasing” (Diamond, Casper, & Ostergren, 1989, p. 248). They may also blindfold the jury to parts of the law, as in 50% rules for comparative negligence cases and trebling rules.
Review of Methodology
The major problem with jury research is methodology. The Supreme Court has ruled that it is illegal to make any recordings or observations of actual jury deliberations. This has led to major complications in getting externally valid results from jury research. Many researchers have avoided this by simply comparing the results of jury deliberations with other factors, leading to high validity but to low understanding of the actual deliberation process. Other researchers have found ways to create artificial jury conditions, which leads to a good understanding of the process but to low external validity.
Tanford and Penrod (1986) used actual trial videotapes and videotaped mock juries in groups of six. They used content analysis and self-report measures. The juries were allowed one hour to deliberate.
Using actual trial videotapes does a great deal to improve external validity for the study. An artificial trial situation would have almost no external validity whatsoever. There is almost no other alternative to using this method. The only major disadvantage is that it is still not an actual trial, so the jurors may not take it as seriously, but there seems to be no way around this. The content analysis seems to be well-implemented, and the self-report measures are a valid measure of juror certainty. The major problem with this study is that they only allowed one hour for deliberations. If the jurors would be willing to spend more time, then the researchers should allow it to improve external validity, as a normal jury would not be so limited. This is the most important mistake that the researchers made.
Wiener, Habert, Shkodriani, and Staebler (1991) used summaries of trial transcripts, in which they changed some of the included information for different groups of mock jurors. They administered self-report measures to measure the jurors’ decisions.
The use of summaries of transcripts leads to less external validity. In this case, it is almost necessary, however, because they were adding and removing different elements to the case to find effects of each element. It would have been better to use trial videotapes and edit them to show the desired elements. Using a self-report questionnaire seems to be good to find out individual juror differences, but it does not show us anything about how this works in real deliberations, since the jurors were not even asked to deliberate. This study would have benefited from videotaped and content coded deliberations that would have taken place after all the elements in the original study.
Reskin and Visher (1986) coded trial data in actual trials, and interviewed the jurors for each of these trials. This seems to be an externally valid study. Since they used actual trials and the jurors for those trials, there are no problems with validity in this regard. Interviews are preferable to any other self-report measures. This study represents the most externally valid of all research designs legally available. The only weakness of this study is that the actual deliberations could not be observed, and so it is still difficult to test the actual deliberation process.
Darby and Jeffers (????) generated used mock cases and self-report measures to test their hypotheses. This is a perfect example of what to avoid in testing jury decision making. Completely mock cases may have no external validity whatsoever, and the offenses contained within the mock cases were not realistic since none of them would result in an actual jury trial. They would have been better off using real court transcripts for the purpose of this study. The self-report measures without any deliberations provide little validity in the results, since there could have been some change in opinions during the deliberation process. They should have proceeded with a deliberation process and re-administered the questionnaire afterwards.
Himelein, Nietzel, and Dillehay (1991) used actual trial information, including verdicts and sentences. This type of study has no problems with external validity, and is excellent for finding overall trends. This type of study, though valid, can’t tell us anything about the actual process of jury decision making, and is difficult to control for specific variables without enough trial information.
These studies cover the variety of research methods employed in studying jury decision making. They highlight the best and worst of all methods and their relationship to external validity. They also point out the need to consider what the study is meant to determine in creating a research design. If the research is intended to study the deliberation process, mock jurors are needed and the participants should go through an actual deliberation process. If the research is intended to find trends without studying the process, actual trial data is needed, et cetera. But two things must be true to ensure external validity: actual trial data needs to be used, and deliberations cannot be ignored. Any use of summaries of transcripts or of artificial trials are the biggest threat to validity, and videotapes are preferable to transcripts. Self-report measures cannot replace the deliberation process, as a number of important things happen during this process. If at all possible, actual trials and jurors should be used.
I would actually recommend that the Supreme Court reconsider their ban on recording deliberations. They would simply have to set up a method to approve research and to protect the jurors. If this were possible, then truly valid studies of jury decision making could be conducted, and we would understand what happens in the deliberation room. Until then, my recommendations should be followed in any research on the subject.
REFERENCES
Blanck, P. D., Rosenthal, R., & Cordell, L.H. (1985). The appearance of justice: judges’ verbal and nonverbal behavior in criminal jury trials. Stanford Law Review, 38, 89-151.
Darby, B. W., & Jeffers, D. J. (????). The effects of defendant and juror attractiveness on simulated courtroom trial decisions. Society for Personality Research, ??, ???-???.
Diamond, S. S., Casper, J. D., & Ostergren, L. (1989). Blindfolding the jury. Law and Contemporary Problems, 52, 246-267.
Downs, A. C., & Lyons, P. M. (1991). Natural observations of the links between attractiveness and initial legal judgments.PSPB, 17, 541-547.
Ellsworth, P. C. (1989). Are twelve heads better than one? Law and Contemporary Problems, 52, 205-224.
Gordon, R. A. (1990). Attributions for blue-collar and white-collar crime: the effects of subject and defendant race on simulated juror decisions. Journal of Applied Social Psychology, 20, 971-983.
Himelein, M. J., Nietzel, M. T., & Dillehay, R. C. (1991). Effects of prior juror experience on jury sentencing. Behavioral Science and the Law, 9, 97-106.
MacCoun, R. J. (1989). Experimental research on jury decision making. Science, 244, 1046-1049.
Pennington, N., & Hastie, R. (1986). Evidence evaluation in complex decision making. Journal of Personality and Social Psychology, 51, 242-258.
Reskin, B. F., & Visher, C. A. (1986). The impacts of evidence and extralegal factors in jurors’ decisions. Law & Society Review, 20, 423-438.
Tanford, S., & Penrod, S. (1986). Jury deliberations: discussion content and influence processes in jury decision making. Journal of Applied Social Psychology, 16, 322-347.
Vidmar, N. J. (1989). Empirical research and the issue of jury competence. Law and Contemporary Problems, 52, 1-8.
Wiener, R. L., Habert, K., Shkodriani, G., & Staebler, C. (1991). The social psychology of jury nullification: predicting when jurors disobey the law. Journal of Applied Social Psychology, 21, 1379-1401.
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