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Friday, October 07, 2005


The Chicago Faculty Blog is discussing decision rules: Levmore's talking about them here and Doug is talking about them here in the context of the jury.  I suppose it is as good a time as any to announce my new paper: Supermajoritarianism and the American Criminal Jury.  I'll post it to SSRN as soon as I settle on a journal; my offers expire today so I should know where it will appear by the close of business.  Here's an abstract:

This piece argues for a supermajoritarian decision rule for conviction by a criminal jury and a simple majority decision rule for acquittal. It rejects requiring high degrees of consensus for acquittals above the majority threshold so that we can (1) give due respect to the presumption of innocence, (2) lower the number of hung juries, and (3) incentivize deliberation. By lowering the number of jurors the minority (presumptively for acquittal) must convince to get its desired verdict during the deliberation stage, we are most likely to encourage members of the minority to try to convince a few jurors in the supermajority (presumptively for conviction) to achieve their verdict preference. If a small superminority had to convince a full supermajority to get its desired result, it would much more likely keep quiet and would not have many incentives to participate in deliberation; as soon as the members of the minority see that they are outnumbered by a supermajority, they are unlikely to believe they can turn the verdict around. But if they only need to convince a few jurors to get their way, they will engage fully to achieve an acquittal.

The Article’s main argument, however, is to support a supermajoritarian rule for conviction, finding supermajoritarian rules to dominate the American political and constitutional landscape. The Article investigates the puzzling persistence of unanimous decision rules for both conviction and acquittal in the face of the American commitment to supermajoritarianism generally. It argues that many different kinds of decision rules can be properly considered to be democratic—and that institutional context and certain external cost considerations can help us select an appropriate rule. While exposing the United States as a supermajoritarian regime, I am able to offer a coherentist account for why the criminal jury should adhere to supermajoritarianism in the context of criminal jury convictions but not acquittals. This decision rule hybrid has never been argued for in the context of the American criminal jury: supermajority to convict and majority to acquit. Usually those committed to giving effect to the presumption of innocence suggest that we simply allow acquittals to be entered for any jury that cannot reach the threshold required to convict; this Article offers a new asymmetrical rule that should command widespread support.

Posted by Ethan Leib on October 7, 2005 at 01:43 PM in Article Spotlight | Permalink


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Life appointment of federal judges, life tenure for academics and the unanimity requirement for criminal convictions are our last three weapons in the war of truth and partisanship. Do you have proposals to revise the other two also?

Posted by: Dean | Oct 8, 2005 4:57:53 PM

Well, I certainly must acknowledge the occasional presence of difficult jurors! :) And, it's a very interesting look at how to deal with them.

Posted by: Brooks | Oct 8, 2005 3:38:41 PM


1. I'm not saying that jurors either falsify or stonewall; I'm saying that those are two things we don't want and there is evidence that those things do happen often. We are looking for decision rules that will help avoid those consequences. To the extent that jurors are conscientious and will do their jobs no matter what the decision rule, then you can't use that fact to butress the rule you prefer. If jurors will deliberate even if they have no chance of winning, then you can't denigrate a supermajority rule: the dissenters will still try to tell their jurors to do their jobs conscientiously and not rush to judgment. What we are trying to deal with is the reality that not all jurors do act conscientiously--how should we treat them and how can we control for difficult jurors.

2. I'd agree with you that there is some value to the hung jury. But my real worry is what happens to the guy who gets the hung jury--and the inequality inherent in the reality that some with hung juries walk, some plead to lesser offenses, and some get re-tried.

Posted by: Ethan Leib | Oct 8, 2005 3:05:57 PM

Doug and Ethan’s proposals are very interesting and I look forward to reviewing them in more detail. My practical experience with criminal juries, however, leaves me with nagging concerns (although of course I simply may be entrenched in the ‘it’s how we did it, so it must be right’ mindset). Many of these concerns are rooted in my belief that jurors on the whole take their institutional responsibilities extremely seriously, which includes an acute awareness that if they don’t reach a verdict, someone else just will have to do the very important job that they’ve been asked to do. In my experience, jurors generally express sincere disappointment when they cannot reach a verdict. Perhaps I’m wrong or naive to presume that juries generally are a conscientious bunch. But, this presumption of conscientious juries does lead me to at least a few observations:

1. I have seen plenty of cases where jurors began with a 6-6, 7-5 or 8-4 vote, and yet reached a verdict. Why, Ethan, do you assume that the dissenting views here, or even with an 11-1 vote where the one changes her vote, have “falsified their preferences” to vote with the majority “more often than you’d think?” Where do you get this fact? My knowledge is purely anecdotal, of course, and I certainly have seen the sole holdout in a difficult case weepily or reluctantly confirm his or her vote when polled. But by and large, my experience tells me that votes change because jurors in both majority and minority camps conscientiously (albeit not always politely) spend time talking with and persuading each other. More importantly, I have seen cases that apparently began as 11-1 or 10-2 votes on one side that turned full circle after many hours and even days of deliberation. This proposal would seem likely to eliminate that critical level of deliberation, because an initial super-majority has zero incentive to listen to or persuade one or two dissenters, who in turn might persuade everyone else instead. Perhaps the flaw is assuming that voting lines, and the reasons for those votes, are linear and consistent in the jury room, which I have sensed they are anything but. The fact that you implicitly characterize one or two dissenting views who hold out as “stonewallers” suggests perhaps an interest primarily in efficient deliberation. Is efficiency of deliberation what we want to prioritize in criminal cases?

2. What about the value of hung juries? If a conscientious jury of 12 cannot reach a unanimous verdict, isn’t there an institutional value to that non-outcome? While some of these cases ultimately are re-tried, many are not, because a hung jury tells both parties that their case may not have quite the hook that they had hoped, and bargaining positions shift accordingly.

3. Much of this conscientiousness that I have observed in deliberating juries flows, I think, directly from them having responsibility for a criminal verdict dumped squarely in their laps and their laps alone. If, as Doug suggests, deliberation is instead conducted by a super-jury from whose ranks 12 voting jurors will be selected, the weight of this responsibility lessens substantially since no one knows whether he or she will vote. I thus worry that jurors in the large group will deliberate less vigorously, at least until the 12 voting jurors are placed together, which sort of undermines the point of the initial super-jury deliberation process. Indeed, the large jury group may pay less attention to the evidence during trial if jurors don’t know for certain that they will vote. This concern has led to calls in many jurisdictions to keep alternate jurors’ identity unknown until deliberations begin. Once you go beyond 1-3 additional jurors to serve as alternates, and instead add 10-20 extra jurors beyond the voting 12 to be included even in deliberations so that no one knows who the voting jury will be until it’s time to vote, the greatly decreased likelihood of ultimate voting responsibility may decrease the pressure on jurors to pay attention to the evidence and deliberate seriously.

A wonderful topic—I look forward to reading and learning more!

Posted by: Brooks Holland | Oct 8, 2005 1:48:06 PM

Another way to incentivize deliberation is by making the decision rules asymmetric and keeping the relevant thresholds close. So if you need 10 to convict and 7 to acquit, even if on the first vote you have, say, 9 to acquit, the 3 to acquit will realize they only need a few more votes to get their desired verdict. The point is that once you move away from unanimity to acquit and lower the threshold required to get an acquittal, the votes always seem closer: under the current regime the few in "dissent" often feel they have no chance so either falsify their preferences and vote with the majority (more than you'd think) or stonewall (infrequently). By giving those in "dissent" the opportunity to build a small coalition to get their desired result, you can empower them.

The paper is on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=822927. I'll make a more formal announcement on Monday.

Posted by: Ethan Leib | Oct 8, 2005 12:04:36 PM

Commenter "Brooks" asks some great questions, and I wanted to offer some reactions.

Brooks opens by suggesting that the unanimity rule creates good preconditions for debate; but I think that's wrong. Under a unanimity rule, a single juror who wants to acquit can completely ignore every other juror. Just sit there and ultimately, at least, you can hang the jury. More broadly, under a unanimity rule debate is stifled because marginal jurors don't matter. If the jury is split 7-to-5 or 8-to-4, nothing changes. So the incentive to convince one more juror is small, and indeed there is only an incentive to do so if you think you can convince all *five* jurors in this particular example.

Brooks is right, though, to worry that "supermajority" rules have their own version of this problem. If the rule demands consensus at the level of 10-to-2, ten jurors can ignore two dissenters; the initial discussion could indeed be a vote, rather than a debate.

All this led me to start thinking about other ways to structure jury deliberation. Indeed, over at the link given in the post (I'm the "Doug" that Ethan mentions) I lay out in a two-post series an idea about how to structure the jury rule to address both concerns. The trick, I suggest, is to adopt a two-tier jury rule: sit a large jury for the purposes of debate, but then randomly choose a subset of those jurors for the actual vote. The logic is that, during debate, no one knows which jurors will be chosen to vote, and thus everyone has an incentive to convince a marginal juror, because that juror might end up being the critical vote at the next level. (Again, follow the link in the main post for a more complete articulation of the idea.)

Posted by: Doug Lichtman | Oct 8, 2005 9:45:19 AM

Not being a lawyer (much less one in criminal practice) and never having served on a jury (which wouldn't really give me enough data to answer my question anyway), can anyone describe the typical distribution of _initial_ votes on juries? I.e. how many 6-6, 7-5, 8-4, ..., and 12-0 voting outcomes (regardless of direction, or with direction included) are there in the first vote conducted by juries in criminal cases in the various courts in the US? The other useful question to have answered would be: how many cases which initially have supermajorities (of whatever stripe you indicate in your paper) eventually vote to acquit, hang, or vote to convict? That is, is there a demonstrable lack of deliberation?

Also, isn't there a bit of a logical error in saying that any scheme that requires less than we do now is likely to produce more verdicts without deliberation? Wouldn't a jury under one of these proposed schemes which simply takes a vote immediately upon being given the case have a pretty high likelihood of not deliberating since they'd be quite likely to either hit the supermajority requirements or have a majority to acquit? Unless the middle ground between majority acquital and supermajority conviction contains the _vast_ majority of initial votes by juries, isn't the initial vote likely to be the final vote with no deliberation having occurred?

Posted by: bill | Oct 7, 2005 7:20:15 PM

I'll post the paper tomorrow. I think the case for majority acquittal verdicts will be embraced fairly generally--and to the extent that we start considering more asymmetrical rules that facilitate majority acquittal verdicts, I'll feel I've done a good for the decision rule literature. As you'll see, my argument for "supermajoritarianism" is really meant only to create a presumption for supermajority rules and leaves open the possiblility that one could still offer good arguments for unanimity. I don't engage in every argument that could be made on behalf of unanimity because I am more interested in showing the supermajoritarian decision rule to cohere with how we do business more generally. But you all may be right that there are certain important differences in the criminal jury context that recommend unanimity. I just haven't heard one that convinced me yet...

Posted by: Ethan Leib | Oct 7, 2005 6:49:44 PM

I too will be curious to read your proposal in more detail. In my years of trying criminal cases before juries, I felt that the unanimity requirement provided greater incentives for juror deliberation because it prevented voting blocks from forming that could exclude dissenting views from the jury’s verdict. Less-than-unanimous verdict requirements, I always believed, simply encourage verdicts.
While voting blocks and majority governance may dominate our political system, the jury trial system in criminal cases speaks to a different goal than the political system: ensuring that unanimous community consensus supports the special condemnation and presumptive permanence of a criminal conviction or, on the flip side, the true permanence of exoneration. Very different than a piece of legislation where second thoughts can lead to second votes. Even the Constitution can be amended to correct bad decisions, but not criminal jury verdicts. Do you propose a different societal meaning to jury verdicts in criminal cases?
What number out of twelve do you consider a supermajority? Eight? Nine? Ten? On what empirical or anecdotal research do you base the proposal? Do you address the effect (for better or worse) that your proposal may have on juries’ traditional (and sometimes controversial) mercy-dispensing function, which is frequently reflected in compromise verdicts returned by fractured juries?

Posted by: Brooks | Oct 7, 2005 6:38:05 PM

Since I can't read it yet, can you explain briefly why we should want to back away from unanimity for conviction? I might agree with giving the jury three options: no majority == hung jury, majority for acquital == acquital, unanimity for conviction == conviction, but I think that backing away from unanimity is undesirable.

Posted by: bill | Oct 7, 2005 4:09:16 PM

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