By Mark Esposito, Guest Blogger
”Write that down,” the King said to the jury, and the jury eagerly wrote down all three dates on their slates, and then added them up, and reduced the answer to shillings and pence.”
~Lewis Carroll, Alice’s Adventures in Wonderland
Few institutions of the English speaking peoples are held in the same esteem as juries in criminal cases. A full three quarters of those polled in the U.S. would want their case decided by a jury rather than a judge. Three in five Australians believe their jury system is working well. In the UK, juries enjoy support from 72% of the population and the same percentage rate the right to trial by jury as one of the most important in society. Compare that to the U.S. Congress’ approval rating of 15% or the President’s rating of 43% and you can see that in America we love juries.
And why shouldn’t we? After all, it was Jefferson who reminded none other than that firebrand of the Revolution, Thomas Payne, in 1789, that “trial by jury [is] the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Jefferson words surely were on the mind of Justice Byron “Whizzer” White when he wrote, “The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge.”
But do modern juries live up to the billing? Are they the bulwarks of democracy seeking only truth or sad victims of a process designed to produce groupthink results due to systemic flaws? Are they staunch individuals committed to their position and determined to fight to the last man to prove it, or are they susceptible to influences both in and out of the deliberation room which have little or nothing to do with evidence and logic. In essence, are they seekers of truth or merely consensus?
The verdict, as they say, might not be so clear. We’ve been studying American juries for decades. Jury consultant Steven Lybrand, Ph.D. has been on the frontier. Let’s see what he thinks about rugged individualism in the jury room:
As jury consultants, we are intimately aware of how even those people most committed to their individual points of view are affected by the power of the group. When sitting in a room with up to a dozen other people, it is very difficult not to be affected by the opinion of your peers, even if you remain unaware of the subtle influence of the group (some have argued that social influence achieves its most potent form when it operates below the radar of conscious awareness). For years, we have watched how the opinions of even those individuals doggedly committed to their opinions have their ideas ground down as they are subjected to the powerful forces of group deliberation. The much-vaunted American individualism turns out to be a rather weak force in the face of the collective power of the jury.
What causes seemingly rational folks to change strongly held views on important matters that affect other people’s lives? To Dr. Lybrand it involves a process directed to produce consensus and not necessarily truth. And his against-the-grain opinion isn’t new. In the monumental 1972 work, Groupthink, Professor Irving Janis, studied a series of disastrous decisions made by political leaders in the area of foreign policy. In analyzing the decision-making processes he developed a model to “explain faulty group decision-making by cohesive groups.” Janis expanded that work in 1983 when he (and others) expanded his research to include decision-making among small private work groups. The results were the same. He called this phenomenon “Groupthink,” harkening to the related words penned by George Orwell in his classical work, 1984. Orwell called it “doublethink” and “crimethink” when people sacrificed personal thinking for collective thinking in the name of safety and order. For Janis, the threat to democracy from Groupthink was just as ominous as Orwell’s words were to him.
What is Groupthink and how do you get it? Janis explains:
A quick and easy way to refer to a mode of thinking that people engage in when they are deeply involved in a cohesive in-group, when the members’ strivings for unanimity override their motivation to realistically appraise alternative courses of action…. Groupthink refers to a deterioration of mental efficiency, reality testing, and moral judgment that results from in-group pressures.
Janis identified seven antecedents which promote Groupthink. The more that are present the higher the risk. In order they are:
- Group Cohesiveness
- Insulation of the Group
- Lack of a Tradition of Impartial Leadership
- Lack of Norms Requiring Methodical Procedures
- Homogeneity of Members’ Social Background and Ideology
- High Stress From External Threats/ Low Hope of a Solution Better Than The Leader’s
- Temporarily Low Self-Esteem Induced by Situational Factors
Let’s look at each of them in the context of a traditional American jury and see whether the system promotes truth seeking or merely, as one juror told me, “getting the [heck] out of there before 5:00 p.m.”
Group Cohesion – How do I force a group to be cohesive? Well, I might take them from their homes and everything else they know to be familiar under penalty imprisonment. I’d pick ‘em in a line up setting letting people whom they don’t know and who don’t know them ask all manner of personal and intimate questions about what they think and care most about. Then I’d let them be turned away for what 58% of Americans think is a “privilege” rather than a duty, and do it for reasons unknown to them. I might then put the lucky ones in close proximity for weeks at a time and not allow them to discuss anything they have been watching all day. I’d make them eat together, stay together, and forbid them from talking to anyone else except each other. I’d be nice about it, of course. Then I’d take away their identity and assign them a number instead of a name. I’d make them dependent on me for everything from food to a bathroom break and I’d schedule their every minute without regard to their wishes. I’d exclude and isolate them when something important was happening and I’d make their only contact person with my organization outside of me to be an armed guard. I’d also tell them a vitally important memory test was going to happen at the end of their term (great word we use for jury duty, isn’t it?) and that they couldn’t take notes unless I ok’ed it. Oh, and by the way, you can’t go home until you reach a unanimous decision on the test answers. Sound like a gulag? Nope just another day in the life of an American juror. They’re “cohesive” I can assure you, just like POWs are “cohesive.”
Insulation of the Group – We call that sequestering down at the courthouse and it means just what it says. You eat, sleep, pray, talk and live for days in close proximity to the same small group. Your only lifeline is that armed guard. No newspapers, internet, and only limited contact with home and all that you know. No texting, IM’ing, or, god-forbid, blogging.
Lack of a Tradition of Impartial Leadership – Who leads the jury? The Judge? No way. The Judge’s practical authority ends at the deliberation room door. No, the Judge says “Pick a foreperson. “ But who to pick and what is the process? The law is silent though traditionally it’s a vote of the members of the panel. But what is the authority of the foreperson? Is she supposed to direct the discussion or merely count the votes. The law doesn’t tell us, nor does it say exactly what power the foreperson has over the other members of the group. Is is more like team captain or coach? Is that how we usually pick our leaders and enumerate their power? Not by a long shot. But we know one thing that’s been confirmed intuitively and with research: If we get the football coach foreperson we will have both a quicker verdict with less discussion and a greater tendency to groupthink. The researchers put it this way– “Ahlfinger and Esser (2001) reported that groups with promotional leaders [i.e., the football coach] produced more symptoms of groupthink, discussed fewer facts, and reached a decision more quickly than groups with non-promotional leadership.”
Lack of Norms Requiring Methodical Procedures – Ever wonder how a jury comes back with a multimillion dollar award? How about how they value a human life? What are the rules for sentencing a person to jail for life versus giving the death penalty. Oh, you say, there are instructions from the judge. True enough but they are laden with such vagueries as vileness, depravity, solace, pain, suffering, anxiety, loss of services, functional capacity, loss of earning capacity and on and on. No formulas. No mathematical precision. Just whatever the jury thinks is “fair,” or “just,” whatever that means. Here’s Florida jury instruction for second degree murder. Let’s see how many vague notions and imprecise concepts you can spot:
7.4 MURDER—SECOND DEGREE
§ 782.04(2), Fla.Stat.
To prove the crime of Second Degree Murder, the State must prove the following three elements beyond a reasonable doubt:
- (Victim) is dead.
2. The death was caused by the criminal act of (defendant).
3. There was an unlawful killing of (victim) by an act imminently dangerous to another and demonstrating a depraved mind without regard for human life.
An “act” includes a series of related actions arising from and performed pursuant to a single design or purpose.
An act is “imminently dangerous to another and demonstrating a depraved mind” if it is an act or series of acts that:
- a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and
2. is done from ill will, hatred, spite, or an evil intent, and
3. is of such a nature that the act itself indicates an indifference to human life.
In order to convict of Second Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.
Homogeneity of Members’ Social Background and Ideology – Ever wonder who Caucasian juries favor? How about African-American juries or male or female dominated juries? If you said their own race or gender go to the head of the class. The researchers put it this way, “ … jury demographic factors interact with defendant characteristics to produce a bias in favor of defendants who are similar to the jury in some salient respect.” Devine, et als, Jury Decision Making, Journal of Psychology, Public Policy, and Law, No. 3,(March 2000) pp. 622-727. Ten separate studies taken over a 30 year period support this conclusion. And before the seminal case of Batson v. Kentucky, 476 U.S. 79 (1986), lawyers (with the approval of judges) took full advantage of this knowledge using the unfettered right to peremptorily remove jurors who were dissimilar to their clients. It continues today with pretextual reasons substituting for outright racism or sexism. Howard & Redfering noted the practice in 1983. Their conclusion: “ In doing so, [the lawyers] attempt to make the jury more homogeneous with respect to the qualities that they perceive to be beneficial.” Ding, Ding, Ding!! We have a winner.
High Stress From External Threats/ Low Hope of a Solution Better Than The Leader’s – Care to imagine a more stress-filled situation than when you hold a person’s life in your hand? How about having to make that life or death decision after you have received exactly two hours of training for your task? I have seen trained surgeons freeze-up with scalpel poised above the mid-line. I have seen experienced lawyers draw a blank while arguing a critical point before an appellate panel. How do you think people with no experience and without a reservoir of knowledge react to crisis. They seek refuge, that’s how. And in the context of the jury, they look for help. But where will that help come from? Each other, of course. And that help comes with a price tag marked “independent judgment.” There’s a reason we keep critical decisions out of the hands of the inexperienced or the insecure and demand that the deciders exercise what we lawyers call “independent professional judgment.” Dr. Lybrand explains the process of Groupthink by juries –and which he calls JuryThink — this way:
[I]ndividual jurors are often confused by the testimony and are desperate for some sense of coherence or meaning. They turn to others in the jury for information and reassurance of the working story they had internalized during the trial. The group then becomes a reservoir for ideas and interpretations to which the entire group can contribute and draw from. Before long, a collective narrative or story emerges that starts to gather together all the facts of the case in a way that makes sense to the collective. At that point, the deliberations become larger than any one individual, no matter how persuasive that one individual may be, as he or she must ultimately deal with the narrative reservoir as it has been constituted by the group. And with this new collective reality, we are out of the realm of individual thought and into the realm of JuryThink.
The power of story telling in a context that no one ever talks about. The classic “that’s our story and we’re sticking to it” mentality overcomes the group and no amount of persuasion can change it.
Temporarily Low Self-Esteem Induced by Situational Factors – But why the need for narrative? At least two researchers think it has a lot to do with the fear of failure and defending the verdict after the trial and hence creating a defense mechanism for people thrown into a vital task they are ill-equipped to handle. Researchers David Mitchell and David Eckstein explain the antecedent this way:
Since a jury must reach a unanimous verdict or face being perceived as having failed at its task, these conditions may create a threat to self-esteem. In order to defend their self-esteem, the group members may seek validation through conformity and consensus. Turner and Pratkanis (1994) reconceptualized groupthink as driven by an effort by the group members to protect the group identity in the face of threat. Under their social identity maintenance model, the possibility of the group failing at its task would present a threat that the group would be perceived negatively, which would further increase the likelihood of groupthink.
Ever hear a group of jurors defending an unpopular verdict with that distinct hint of desperation always in their voices. Groupthink.
What are the implications for this type of system? That, dear reader, is in the next installment of this multi-part article.
~Mark Esposito, Guest Blogger