John H. Blume, Sheri Lynn Johnson & Scott E. Sundby, Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation, 36 Hofstra Law Review 1035 (2008).
After reviewing different sources of empirical data collected from jurors who have served on capital juries, the authors explain how criminal defense lawyers can use the information to avoid the death penalty for their clients. As the authors explain, one of the most important steps for the capital defense team is investigation so that all mitigating factors are discovered. Furthermore, when putting together the defendant's story, the authors suggest that certain background stories, such as a history of mental problems or incidents of child abuse, work well with jurors, while a history of drug abuse or drug addiction tends not to lead to much sympathy. Finally, the authors look at the personal characteristics of the jurors themselves and suggest that, in general, jurors with higher levels of education, those who frequently attend religious services, and African-American male jurors when there is a black-on-white killing, are jurors who are most likely to vote for life.
Cheryl Boudreau & Mathew D. McCubbins, Competition in the Courtroom: Experiments on Adversarial Competition, Juror Sophistication, and Decision Difficulty (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121025).
This article is the result of an empirical study that evaluated the effectiveness of experts in the courtroom. In the study, college students, who were broken down into groups based on their SAT math scores, were given a series of math problems to answer. With each problem, different "experts" would give their opinion as to the right answer. The authors discovered that while strict competition among experts does not improve juror sophistication, weak institutions, such as penalties for lying or a chance of verification, do help unfamiliar jurors comprehend the material.
Michael Bromby, The Temptation to Tweet—Jurors' Activities Outside the Trial (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1590047).
This article analyzes jurors' behavior on Twitter, an online social-networking website. Specifically, the article considers whether jurors "tweet" about their jury service. On a Monday morning, the author searched for the terms "jury service" and "jury duty" on Twitter and found 260 results. The author randomly selected ten accounts to follow for seven days. After following these accounts for a week, he found that all of the jurors provided at least one tweet about their jury service.
Robin H. Conley & John M. Conley, Stories from the Jury Room: How Jurors Use Narrative To Process Evidence, 49 Studies in Law, Politics & Society 25 (2009).
In this article, the authors analyze how jurors use storytelling during deliberations. After reviewing the literature that examines how juries rely upon narrative, the authors use data captured from a PBS broadcast and from transcripts of actual jury deliberations to study the importance of storytelling in jury deliberations. The data reveal that jurors not only use the narratives that they hear from witnesses to reach a verdict, but also the jurors work together to form one master narrative about what could have happened. The authors found that in spite of instructions from the judge that jurors were not supposed to begin deliberating until the trial was over many jurors began to put together a "meta-narrative" well before deliberations formally began.
Erin York Cornwell & Valerie P. Hans, Contextualizing Jury Participation: Case-, Jury-, and Juror-Level Predictors of Participation in Jury Deliberations (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1441537).
Over fifty years ago, researchers concluded that jury deliberations tend to be dominated by those individuals who are members of a dominant social class, namely educated, white males. By examining data collected from actual jurors, who were asked to rate their level of participation during deliberations, the authors of this article were able to update this theory. Specifically, the authors discovered that while educated individuals still tend to dominate the discussion during deliberations, gender now makes no difference in the level of participation. Perhaps most surprisingly, black jurors reported high levels of participation, regardless of whether they were the majority or minority on a jury. The authors further concluded that these results remain consistent for all criminal cases, regardless of case type.
Daniel Givelber & Amy Farrell, Judges and Juries: The Defense Case and Differences in Acquittal Rates, 33 Law & Social Inquiry 31 (2008).
In this article, the authors begin by noting that in a substantial number of criminal cases, judges would have voted to convict the defendant where a jury, in fact, voted to acquit the defendant. While such a phenomenon could be examined by looking solely at the sufficiency of the prosecution's evidence, the authors specifically focus on the defense's case-in-chief. Using data collected from a National Center for State Courts project on hung juries, they discover that juries are most likely to acquit (approximately 79% of the time) when there is at least one non-interested witness testifying for the defendant, the defendant insists on his innocence, and the defendant has no prior criminal background. The authors hypothesize that because such cases are "close" as far as the evidence is concerned, jurors are then liberated to vote in terms of their values as opposed to following the strict letter of the law.
Jacob K. Goeree & Leeat Yariv, An Experimental Study of Jury Deliberation, Institute for Empirical Research in Economics, University of Zurich, Working Paper No. 438 (September 2009).
This paper is the result of an empirical study in jury deliberations conducted by the authors. In the study, there was a mock jury of nine people and the "jurors" were assigned a particular preference. Sometimes the jurors would be allowed to communicate, and other times they would have to cast their votes without the benefit of communication. The authors discovered that, without communication, voting rules requiring either a majority, supermajority, or unanimity made a crucial difference in whether an outcome was reached. However, when jurors were allowed to communicate, the importance of voting rules significantly diminished as jurors were able to consistently reach results even when assigned different preferences.
Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1556347).
This article suggests that the Federal Sentencing Guidelines impose harsher sentences than the average individual would impose in the same case. The author, a district court judge, asked jurors who convicted a defendant to indicate how many months they would sentence the defendant to prison. The jurors did not deliberate on this point; they simply submitted their recommended sentence to the judge. The judge looked at their recommendations after he had sentenced the defendant under the Federal Sentencing Guidelines. In twenty-two criminal trials, the jurors' recommendations were three times lower than the corresponding low end of the Guidelines' range. Thus, the author concluded that the sentences in the Federal Sentencing Guidelines do not reflect community values. He recommended that the Federal Sentencing Commission should regularly survey members of the community for their input on appropriate sentences and incorporate those suggestions into the Guidelines.
Valerie P. Hans, Judges, Juries, and Scientific Evidence, 16 Journal of Law & Policy 19 (2007).
In this article, the author explores both the judge's and the jury's understandings of scientific evidence. In the experiment, judges and juries watch a mock trial in which mtDNA is at issue. Both the prosecution and the defense call expert witnesses and later a quiz is given on the scientific evidence presented. The author found that, on the whole, both judges and juries understood the scientific evidence, that college-educated jurors with scientific backgrounds performed better than less-educated jurors and judges, and that the use of jury notebooks and a checklist were important tools that improved juror comprehension.
Young S. Kim, Gregg Barak & Donald E. Shelton, Examining the "CSI-Effect" in the Cases of Circumstantial Evidence and Eyewitness Testimony: Multivariate and Path Analyses, 37 Journal of Criminal Justice 452 (2009).
This study on the so-called "CSI-effect" involved 1,027 jury-eligible citizens who had been summoned for jury duty. These citizens completed a survey that asked them: (1) if they would be willing to convict a defendant based only on circumstantial evidence with no scientific evidence; and (2) if they would be willing to convict a defendant with only eyewitness testimony and no scientific evidence. The survey results showed that exposure to CSI dramas on television had no significant effect on jurors' willingness to convict a defendant. However, an important factor that emerged was a juror's expectation of scientific evidence. Jurors who had a high expectation of scientific evidence were less willing to convict defendants when there was only circumstantial evidence; however, their expectations of scientific evidence had no significant effect when there was only eyewitness testimony. From a policy perspective, the authors concluded that police and prosecutors should try to obtain scientific evidence whenever possible, and defense attorneys should be concerned about the possibility of their clients being convicted without scientific evidence when there was only eyewitness testimony.
Tamara F. Lawson, Before the Verdict and Beyond the Verdict: The CSI Infection within Modern Criminal Jury Trials, 41 Loyola University Chicago Law Journal 1 (2009).
This article analyzes various ways that the so-called "CSI-effect" has infected the legal system. While acknowledging that statistical studies are still ongoing as to whether there is, in fact, a CSI-effect, the author nonetheless provides methods that judges and lawyers can use to limit the potential influence of the CSI-effect. For example, she argues that potential jurors should be more thoroughly questioned on their television-viewing habits during voir dire. She also suggests that jurors should be reminded both before and after the trial that the prosecution is not required to admit any particular type of evidence, and that there should be a jury instruction regarding the CSI-effect. In addition, she recommends that prosecutors should be allowed to practice "defensive prosecution," so that they can explain why certain types of evidence have not been provided.
Richard A. Leo & Brittany Liu, What Do Potential Jurors Know About Police Interrogation Techniques and False Confessions? (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1404078).
This article is an empirical analysis of the importance jurors give to confessions when evaluating evidence. Specifically, the authors are concerned about the prevalence of false confessions during police interrogations and whether jurors are aware of the possibility that a confession could be extracted under coercive circumstances. Using data collected from over 200 college students at a southern Californian university, the authors discovered that these potential jurors considered false confessions to be unlikely even under admittedly coercive psychological critiques. As a solution, the authors propose that expert witness testimony should be used more frequently to educate jurors as to the reality of confessions procured under psychologically coercive circumstances.
Justin D. Levinson, Race, Death, and the Complicitous Mind, 58 DePaul Law Review 599 (2009).
Based on recent social science research, the author proposes two new hypotheses relating to race and capital punishment: the Death Penalty Priming Hypothesis and the Racial Bias Masking Hypothesis. The Death Penalty Priming Hypothesis suggests that the very process of death qualifying juries elicits automatic racially-biased thoughts in those jurors. The Racial Bias Masking Hypothesis proposes that previous studies analyzing racial bias in the death penalty are unintentionally biased against African-American defendants. In support of these hypotheses, the author cites social-science research that suggests that people have unintentional racial biases and that these biases can directly affect a person's decision-making. He concludes by suggesting that these hypotheses should be tested empirically.
Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 West Virginia Law Review 307 (2010).
In this article, the authors formulate a new hypothesis, the Biased Evidence Hypothesis, which posits that when jurors are presented with racial stereotypes, those jurors automatically and unintentionally evaluate ambiguous trial evidence in racially-biased ways. After reviewing relevant legal and social-science research that indicates that people often have implicit racial biases, the authors describe an empirical study they conducted. In that study, research participants saw photos of a crime scene that were identical except that half of the participants saw a photo of a dark-skinned male while the other half saw a photograph of a light-skinned male. The participants were then presented with a list of evidence that could be used to demonstrate either guilt or innocence and asked to categorize the evidence as indicative of either guilt or innocence. Results from the study showed that participants who saw the dark-skinned male were more likely to view evidence as tending to show that the defendant was guilty. The authors suggest that more empirical evidence is needed to test Biased Evidence Hypothesis.
Nancy S. Marder, Instructing the Jury, in The Oxford Handbook of Language and Law (Lawrence Solan & Peter Tiersma eds., forthcoming 2010).
This chapter identifies various problems with jury instructions and proposes a number of reforms that would help jurors to understand jury instructions. One of the problems the author identifies is that the language used in the jury instructions often relies on legal phrases and concepts that are familiar to lawyers and judges but not to jurors. Jurors also have difficulty understanding jury instructions because judges read the written instructions aloud and expect jurors to absorb the information simply by listening to the judge. The author proposes a range of steps, from small to large, that states could take to improve juror comprehension of jury instructions. These steps include giving jurors an individual written copy of the instructions, allowing jurors to ask questions after the instructions are read, and testing new jury instructions by using laypersons to see which instructions are difficult for them to understand and then re-writing them accordingly.
Katie Morgan & Michael J. Zydney Mannheimer, The Impact of Information Overload on the Capital Jury's Ability to Assess Aggravating and Mitigating Factors, 17 William & Mary Bill of Rights Journal 1089 (2009).
In this article, the authors take a concept from marketing, namely information overload, and apply it to capital juries. This leads them to the conclusion that capital juries are inundated with too much information in the sentencing phase of a trial. The authors then conclude that information overload leaves juries making less-than-optimal decisions. They therefore recommend that the amount of mitigating and aggravating evidence jurors are allowed to hear should be limited.
Mary R. Rose & Shari Seidman Diamond, Offstage Behavior: Real Jurors' Scrutiny of Non-Testimonial Conduct, 58 DePaul Law Review 311 (2009).
In this article, the authors analyze the impact of "virtual" trials on the jury's ability to render verdicts. Specifically, the article evaluates how a witness's non-testimonial conduct influences a jury's decision. By analyzing pre-deliberation, deliberation, and post-deliberation remarks made by jurors in fifty civil cases, the authors learned that jurors' comments about a witness's offstage performance were rare and generally subordinate to the actual evidence introduced in the case. Therefore, they suggest that jurors would not be disadvantaged during deliberations if they only watched videotaped testimony as opposed to a live trial.
Nicole L. Waters & Valerie P. Hans, A Jury of One: Opinion Formation, Conformity, and Dissent on Juries (electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1297272).
This article examines the process of opinion formation on juries. Specifically, the authors focus on locating the part in a criminal trial when jurors begin to shift to one side, if and at what point jurors change their minds, and the factors that separate a "conforming" dissenter from a "non-conforming dissenter." Using data collected from a National Center for State Courts project on hung juries, the authors discover that, contrary to earlier studies that found jurors began forming an opinion during opening arguments, jurors began leaning toward one side during the evidentiary period of a trial -- especially during the prosecution's case. The study further discovered that most jurors (62%) changed their mind at least once. Finally, the authors identified several factors that may lead a juror to "hold out" from conforming to the majority including: size of the minority, deliberation procedures, certainty of verdict, and fairness of the outcome.
Robert O. Wefald, Jury Trials from a Trial Judge's Perspective, 33 American Journal of Trial Advocacy 177 (2009).
This Commentary describes how jury trials appear from a trial judge's perspective. In addition to providing useful practice tips for lawyers, the author also describes how jurors are likely to perceive trials. He suggests that jurors are genuinely interested in witness testimony, and he describes various ways that jurors perceive attorney demeanor.