American Juries: Seekers of Truth or Mere Consensus? Part II

By Mark Esposito, Guest Blogger

Author’s note: This is the second in a series of related posts examining the American Jury. In the first installment (here), we looked at the antecedents created by the judicial system that foster Jury Groupthink. We said that seven systemic components lead to a higher risk of groupthink when citizens form isolated, cohesive work groups to decide issues in a litigation setting. We also explained that the more antecedents in the mix, the higher the likelihood of decisions based not on reason or evidence but more on the need to reach a unanimous decision and to defend that decision later. The events of this week serve almost as a scripted piece of this article as first one then another juror in the Zimmerman case came forward to exemplify aspects of the groupthink mentality. (More about that  in Installment Three.) Antecedents by the judicial system aren’t the only promoters of group think. Societal constructs created by our society as a whole enhances the pattern, too, and serve as telltale markers of the bad decision-making, as we shall see.

rodney_matthews_alice in wonderland_the knave on trial

You think your average juror is King Solomon? No! He’s a roofer with a mortgage. He wants to go home and sit in his Barcalounger and let the cable TV wash over him. And this man doesn’t give a single, solitary droplet of shit about truth, justice or your American way.

~John Grisham, The Runaway Jury


John Grisham’s crystallized cynicism surely doesn’t hold true for all jurors but the point to be made is that jurors are not “big picture” deciders of great issues of the day utilizing lofty principles. Instead, jurors tend to recoil from abstract notions of truth and justice and delve more deeply into human motivations and empathy. In their classic work on American juries, Professors Kalven and Zeisel of the University of Chicago, concluded that “in many instances the jury reaction goes well beyond” rational sentiments “and rests on empathy of one human being to another.”  Appealing enough to our natural sentiments and intuitively correct, but  in the battle of human versus human, the question becomes, “empathy for whom?” And how does empathy fit into the structure of  a system that calls for cold-blooded reason and eschews warm-hearted sentiments? Not so well, it seems. In fact, jurors swear off these  emotional human frailties (which form much of their everyday decision-making. Don’t think so? Ask yourself: “Why did I marry my wife? Wide pubic bone for ease in childbearing perhaps, there Mr. Spock?) and promise to be guided by the evidence alone.  How can juries bridge the gap between their own intuition and the judge’s instruction?

As we explored in the first article, juries come to the decision-making table with little preparation or guidance in making these critical decisions that are preordained by the judge to be based on  reason alone.  How then to merge empathy and reason into justice? Why groupthink, of course. Why so? Because society supports that decision-making model with a whole series of  social constructs that forms in the group, what Professor Irving Janis called the “behavioral consequences of a coping pattern of defensive avoidance.”

Ok, I can deal with “behavioral consequences,” and maybe even “coping pattern,” but what the heck is “defensive avoidance?” Over at  Harvard University, the good scholars define “defensive avoidance  of disapproval ” [the type we have here]  as the ” motivated inattention to physiological, affective, or cognitive reactions arising from stressful social transactions, thereby safeguarding a self-image of social competence.”  Here in Richmond (VA),  we call it C-Y-A by folks who have little or no guidance on what the heck they are doing or how to go about it in the first place.  It goes by other names, too, like “saving face,” or “defensive medicine.” But how do we know a group decision is premised on disregarding all reason via C-Y-A as opposed to rational decision-making in the sausage factory of the jury room? Professor Janis provides us the “symptoms” of Groupthink, and he’s kind enough to group these markers for us using the terminology of the prevailing societal constructs that foster them. Sort of an Audubon Society Field Guide for bird-brained jury verdicts:

Type I  -Overestimation of the Group

Illusion of invulnerability.

Belief in inherent morality.

Type II – Closed-Mindedness. 

Collective rationalization. 

Stereotypes of out-groups.

Type III – Pressures Toward Uniformity. 

Illusion of unanimity.

Direct pressure on dissenters / Self-appointed mindguards.


Let’s look at Type I, Overestimation of  the Group. Groupthink decisions tend to arise when the group sees itself as invulnerable from external pressure as it decides its issue and, while it deliberates, possesses an almost religious belief in its own inherent goodness and worth.  Janis looked at the Kennedy Administration’s “perfect failure” at the lost-from-the start Bay of Pigs fiasco. There it was, the “best and brightest” of Camelot ignoring the myriad of glaring deficiencies in the plan (replete with warning sirens not-so-forcefully sounded by Arthur Schlesinger) who sallied forth into a complete disaster that a cursory review and basic understanding of military  tactics would have quickly revealed. Ditto the Carter Administration’s nadir on the sands of Desert One.

In our context, one struggles to find a group meeting this “Knights of the Round Table” criteria more than your garden variety petit jury.  After being praised in every form of media as the conscience of the community, the assembled venirepersons are sworn into service in a solemn ceremony presided over by our society’s version of the uber-alpha male/female, i.e., the one person in all the land who has the range of power up to and including legally sending civilians  to the death chamber.  And now guess what? By that simple “I do” and in the right case, you collectively have that power, too! And you can do it in secret with complete anonymity and with the full confidence that no one can disturb you  as you act with absolute impunity. They don’t give that kind of power to just ordinary folks, do they? “Of course, not,” your reptilian brain says and off you go to slay your own dragon. In my mind’s eye, I can see a sword blade tapping a shoulder and hear the ringing words, “In the name of God, St. Michael, and St. George, I christen you and bestow upon you the power to bear arms and mete justice,” exactly how trusted medieval knights were commissioned to defend god and country by either prelate or potentate in merry old England.  Talk about head expanding!

Type II Closed-Mindedness, is a little trickier but just as important to grasp because it revolves around the socially ordained insularity of the jury process. Jurys work in secret and only among themselves. Unlike the other society outside its door, juries are limited by two things, in theory: the evidence and instructions allowed by the judge and the collective experiences (sometimes called the “common sense”) of the panelists.  This insures a close mindedness that is understandable but troubling. Compare this model of decision-making to how leading American companies decide on a new market opening for a product? Do the captains of industry gather a few senior  exces together who have almost no knowledge of the product or the market ? Then, have ancillaries — over whom the decision-makers have no control — provide them the information that the ancillaries  think is important? Finally,  do corporations cloister their execs to permit them to put their heads together in a collective effort to get it right? Of course not.  Properly made decisions require vertical as well as horizontal inputs of relevant information  so that decision-makers have all the knowledge they deem pertinent to decide the issue. For example, at Apple during the heyday of the Steven Jobs era, the company’s Top 100 were called into session to make presentations to Mr. Jobs personally. The presenters ranged from project managers to senior executives — all with one goal: Get the product designed, made, and to the market as cheaply and efficiently as possible.

And lest you think this insularity is the only way for juries to function, consider the origins of the jury system in 12th century Britain. Originally, juries were a group of the leading citizens of the town or shire who assembled by royal edict to gather facts about disputes which, in turn, were turned over to the monarch who decided the issue. Invariably they knew the “litigants” involved and had knowledge of the dispute before it was explained to them by the parties or their representatives.  Jurors could question the parties and conduct their own investigation. Sometimes they would be chosen as jurors simply because they had witnessed the event giving rise to the dispute. It would take three hundred years before juries evolved from their advisory role to unfettered deciders of facts, but moving to the notion that jurors had to be disinterested persons isolated from the dispute would take much longer to take hold. Between the 15th and 18th centuries, the role of the jury evolved into more of a peer system as the requirement of knighthood status was dropped. Expert witnesses began to be used especially in land cases. Exemptions from jury duty were also granted by the king, such as for Quakers, who could not swear to oaths. The more modern concept of an impartial jury was fostered by reforms which permitted a litigant to challenge a juror for cause  including challenges that the petit juror had served on the indicting jury, the juror was a serf or servant, the juror has been convicted of certain crimes, the juror was related to one of the parties or the sheriff, or the juror had stated his opinion of the case in public. Thus the institution became what philosopher Herbert Spencer described as, “A group of twelve people of average ignorance” and insularity became its hallmark.

How do insular decision-making  bodies think? It’s an old question but with an answer that defines and explains much of the world’s struggle to free itself. Insular bodies engage in rationalizations to justify both their existence and their authority. Because they perceive themselves as  invulnerable and that their mission is sacrosanct, whatever decision they arrive at must be correct regardless of the suffering or poor consequences it engenders. Look at the recent sexual abuse scandal in the Roman Catholic Church in the United States. The decision-makers in that group are the poster children for both invulnerability and close mindedness. As the  walls were burning around them what was their reaction to a crisis that could have razed the centuries-old institution?  National Catholic Reporter, John Allen, Jr., revealed the groupthink in that institution:

No one [in the Vatican] thinks the sexual abuse of kids is unique to the States, but they do think that the reporting on it is uniquely American, fueled by anti-Catholicism and shyster lawyers hustling to tap the deep pockets of the church. And that thinking is tied to the larger perception about American culture, which is that there is a hysteria when it comes to anything sexual, and an incomprehension of the Catholic Church. What that means is that Vatican officials are slower to make the kinds of public statements that most American Catholics want, and when they do make them they are tentative and halfhearted. It’s not that they don’t feel bad for the victims, but they think the clamor for them to apologize is fed by other factors that they don’t want to capitulate to.

To fully institutionalize the groupthink, sure-to-be canonized Pope Benedict warned the world in 2010 that he would not “be intimidated by … petty gossip” that was the child sexual abuse scandal.

This is NOT to suggest that American juries engage in the same moral myopia so prevalent in the priest sexual abuse scandal, merely that insular bodies tend to value themselves above their mission. And while the most egregious offenders are the long-standing enclaves of secrecy, sanctimony, and self-preservation, more fugacious groups of decision-makers can take on these collective anti-social behaviors — such as misguided loyalty to the group over the mission — as well.

Where close-mindedness becomes particularly insidious is in the presence of highly homogeneous groups. As we’ve discussed, homogenous juries tend to favor litigants with the same or similar salient features of the jury be it race, gender, or even age. The opposite is also true that homogenous juries also tend to disfavor non-similar litigants (the “out group”) and to disproportionately rely on stereotypes or overgeneralizations about the outgroup rather than facts. The more highly homogenous, the more reliance on stereotypes and overgeneralizations because, after all, the jury is limited to its collective experiences. Think “suspicious” African-American kid with a hoodie here in the minds of five white, female jurors. But we’re getting ahead of ourselves now, but only by a little.

Type III – Pressures Toward Uniformity. Oh, peer pressure thy name is groupthink! We’ve all been there around age 17. Weed, Jack Daniels, or something stronger is going around and the only square in the room is you. Oh, sure you can storm out on your peer group, or stand and cite the latest CDC statistics on substance abuse among American young people, or conform and have the camaraderie of the group at your feet. Wanna guess how it turns out most times?  The problem with cohesive, invulnerable, insular, sanctified by society decision-making groups is that at some point they expect everybody within the group to conform. Oh, so subtle at first;  Juror 30 please sit here. Let’s take an initial vote. How about we all tell the judge we want lunch at 1:00 p.m. If we’re asked, let’s tell the judge we want to go to 6:00 p.m. today.

Insular groups demand and receive conformity. In some sense they have to achieve this to carry out their functions. But this conformity can easily turn to intimidation when fatigue, exasperation, and downright orneriness sets into the room. Just like on your last cruise, there is always someone who’s done it before; done it better; has a relative who has inside scoop; and can show you the ropes. The implicit message is “I get it. You don’t. So follow me and we’ll make short work of this.” Rush to judgment? Well, maybe but the pressure to conform doesn’t end there, it only begins.

it takes a strong personality to stand up to this kind of prodding and quite frankly most people are just not up for confrontation. And I mean any kind of confrontation.  And most jurors by the time they get the case want to decide it — and quickly.  It’s about family needs, employment needs, or just plain not wanting to be in this environment any more than they have to be there. The path of  least resistance sure looks shorter after three weeks on hard seats and eating Pizza Hut Pizza at the NoTell Hotel. Sure you get movies and a pedicure maybe but does that compare to home?

Take a motivated “wanna get outta there-er” and a dominant personality at the head of the table, and the discussion goes like this:  “Ok, does anybody really think he’s guilty after what we just heard?” Er, well maybe sir if that’s ok, sir. Think that doesn’t happen? Let’s look at Arthur Schlesinger at the Bay of Pigs final meeting when the “Go” order was given.  Here’s the elegantly educated Ivy Leaguer’s own take on his performance to stop a tragedy:

“In the months after the Bay of Pigs I bitterly reproached myself for having kept so silent during those crucial discussions in the cabinet room.” He continued, “I can only explain my failure to do more than raise a few timid questions by reporting that one’s impulse to blow the whistle on this nonsense was simply undone by the circumstances of the discussion.”

The researchers call this self-censorship the promotion of  the “illusion of universality” where silence or near silence  means agreement.  Allport, F. W. (1924). Social psychology. New York: Houghton Mifflin.  If it happens to a top intellect like Schlesinger, who can easily articulate and defend his well-considered opinions, how might a minority lady with eight kids and a job at a nursing home who moved to Florida from Chicago just months earlier handle it?

For that, you’ll have to read the next installment when we consider the  State v. Zimmerman jurors and their words and deeds in the context of groupthink.


~Mark Esposito,  Guest Blogger

33 thoughts on “American Juries: Seekers of Truth or Mere Consensus? Part II”

  1. Gus: What do you think is the proper size for a jury ?

    I think it depends on the severity of the ramifications. Here is a modification I would suggest: double juries. have, say, 16 jurors, all seated together during the trial. After the trial, randomly split them into two 8-person juries, have them both deliberate separately and both come to final conclusions. Then require a unanimous verdict of all 16 for guilt on a crime.

    I would like to see that tested in an academic setting first; but I believe it would reduce the chances of convicting an innocent person. Each group would end up with its own POV, and for me, I would be more confident in two independent groups concluding “guilty” than I would be just one group that may have been bullied or misled into that conclusion.

  2. Gus: Do not think of a “focus group leader” as a bully or a person taking charge, think of them as somebody with a clear opinion and an argument, or willing to speak up without bullying.

    In fact, most people have a tendency to rebel against the bully, as you demonstrate in your willingness to change your vote (and presumably let a person you thought was guilty go free) as a punishment for somebody else’s bullying. The “chime in” agreed with you: Making you a de facto leader.

    When you ask “Does anybody believe the cops?” You are not bullying, you are expressing your clear opinion in a non-threatening, non-demanding form. So YES, you become a focus group leader. When on the other case you point out the evidence does not support some charges, you are not demanding anything, you are expressing an opinion with evidence, people think, and decide to agree with you: You are a focus group leader.

    Stop thinking of a leader as a bully or the baddest ass in the crowd coercing the others into submission. A “leader” is the person that originates an idea that others then agree with for whatever reason. It is not a general, or dictator, or boss.

    In focus groups (which we can study) and jury deliberations (more difficult to study) we have a similar situation of peers without any real coercive power, and in such situations we expect to see “natural leadership” emerge, the person that can best get people to agree with them without any threat at all.

    Once they have done that, even once, others give them some “credit” for having been insightful or reasonable, which basically gives that person an edge in becoming the opinion leader.

    I think the mechanisms of how “non-coercive leadership” emerges is a very interesting aspect of human psychology. That is what we are talking about with a focus group, jury, or any group of peers.

  3. I am proud to say ( and perhaps I should not be …. I invite comments ) that I am not swayed by other peoples arguments unless they make sense to me. I have been on several juries… On one jury , the vote hung 11 for guilty, one for not guilty ( that was me ). Some of the jurors actually insulted me. I think I started it. On another jury, we reached a verdict in 10 minutes ( we found not guilty for a fireman charged with resisting two cops ). I asked one question… * does anyone believe the cops ? * Then we voted unanimously the first ballot. Was I a *focus leader* … I think not.

    On another jury I was on , a guy threatened two women who did not agree with the other 10 jurors. He said their theories were garbage. I told the guy that if he proceeded with his threats that the vote would become 3 to 9. Another guy chimed in and said it would be 4 to 8. The jury ended up hanging 10 to 2.

    On another jury, we all agreed that a guy was guilty of hitting another car with the car he was driving. Everyone seemed to think that wrapped it up. They were going to find him guilty on all counts. I pointed out that the evidence really did not support the other charges. So the guy was found guilty of one count. The other charges were stuff like stealing the car ( his brother’s car ) and fleeing the accident.

    What do you think is the proper size for a jury ? I think six is too few. 12 seems okay to me. I hate voir dire …. I would eliminate it… other than to eliminate conflicts of interest or a raving loonie. Also I see no reason to call jurors who express no interest in serving.

    Here is something that really bothered me about being on a jury. The judge emphasized several times that we ( the jury ) were the most important people in the room ( save for the defendants ) . This was big fat lie since we were the last to be consulted about how long lunch would be or what questions would be asked. I asked several questions via passing a note to the judge and the judge did not even acknowledge getting the question. I was pleased when one of the jurors got sick and threw up on a bench in the courtroom. We had a spare juror, so we proceeded with the new juror.

  4. Nick: And, I agree that can be a problem if you have a bully[s] in the jury room.

    Well, that is putting words in my mouth, you are “agreeing” with something I did not say.

    The issue isn’t a “bully,” the issue is that in every focus group people find a leader and then defer to the leader. The leader isn’t usually a bully, the leader is often just the most definitely opinionated of the focus group: But that does not even imply “strongly” opinionated, just that their opinion is less ambiguous than anybody else’s opinion; and because more ambiguous opinions do not know what they think, they fall in line with “the man with a plan,” so to speak.

    Not because he (or she) is intimidating them. People that avoid confrontation do not need to be intimidated, they just choose to not challenge or exert themselves to get their own way. That is the case for many when they are on the fence and could go either way; letting somebody else make the decision for them is an energy saving mechanism. And perhaps a guilt prevention mechanism if the decision is particularly difficult, like a way to deflect responsibility.

  5. Gone Dog Mespo, is everything a sausage factory? Do all closed doors hide a process that is confusing, obfuscating, and processed for public consumption when the results are packaged and glossily presented on a trophy stand. Here is our conclusion look how shiny it is. Bow down and accept it, Blasphemers beware.
    Calculus, Cosmology, and String physics ARE confusing and comprehensibly difficult. Everything else is structured, manufactured BS. Honesty, Sincerity have left the building. Obfuscation, deceit, personal gain, & self aggrandizement are the NEW morals. Look at me, Look at what I pulled off. Look at my money.
    What is the difference between Wieners weener, and Look at my Money? …. Look at my Rolex. …Capitalism is nothing but Masturbating in public to show ones’ worth. My Dick or my Boobs are BIGGER than yours. … Is everything a sausage factory, to be manipulated by those That can.
    Baa Baa sheeple sheep, have you any wool, Bow down give to me, every bag full.
    PS. We all struggle. We all suffer. The aggressive can obfuscate and confuse for their benefit. / I submit the Tax code, I submit the Law, I submit Regulations./
    Everything that is made confusing on purpose. Those in the creating seat have advantage. The sociopaths take advantage and THRIVE. Meanwhile …back at the sheep ranch, we Baa and get sheared. Common sense and justice are the equalizer of the commons. Common sense and justice have become the manipulative self aggrandizing domain of the sociopaths that now make the rules.
    It’s beer 11:30, thank you for the post and exposure of my 58 year belief in common justice in our Democracy of common value amongst the common populace.
    I love the smell of truth and knowledge in the Circadian rhythms of human beings. Effin Sausage factories are everywhere!!!!!!!!!!!! :o)

  6. Over 40 years a litigator and judge in Texas. And, I got to serve on three juries while I was a judge (that was a huge surprise … I think each side expected the other team to strike me). The deliberations were interesting. Most of the jurors thought that [i] they had not heard everything that might reveal “truth” ( whatever that was), but [ii] were stuck with figuring out what was more likely to have happened with what they had been given.

    Discussions seemed to be low key and searching. In one case a juror (not me) reminded the others that something two of the others had brought up had been excluded by the judge and we were told not to consider it. So that ended that.

    In a civil case (where a man was suing his mortgage company for wrongful eviction where the company accepted all of the insurance payout following the total loss of the family home after a lightening strike fire) everyone pitched in with their views including whether the husband had just been too much of a milquetoast in knuckling under to the company’s excuses and delays. But in the end a comment by one juror ” .. I’ll be damned if I would ever let a bank do that to my family …” summed up the general tenor. The answers to the three liability questions were then quickly agreed. The harder question was damages; but a significant and fair figure was finally agreed. Afterwards I told the plaintiffs lawyer that his biggest mistake was not asking for enough money, because he might well have gotten it.

    In one criminal case the jury was tasked with deciding whether the defendant was competent to stand trial. We concluded he was not … but only after I was grilled about what happens if he is incompetent. Assured that he would stay in a state hospital until he was determine competent and then he would stand trial, they then debated the medical testimony carefully and it only took one vote to reach a verdict.

    In all the cases I avoided being the presiding juror. I wanted to learn as much as I could about how “civilian” citizens approached this job. I concluded that they took it seriously and worked hard to do a difficult job (with sometimes limited information) and seldom wandered down rabbit trails.

  7. It is forbidden to kill therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.” -Voltaire

    All that informs of our jury system.

    Answer this you “Seekers of Truth” and you “Mere Consensus”:

    Whose trumpets?

    (you may take a drink before answering) …

  8. Vincent Jankoski 1, July 27, 2013 at 6:17 pm

    And the point is?
    Vince baby, it is more of a question than it is a point, albeit it could be a pointed question.

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