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. Otteray Scribe 1, July 27, 2013 at 11:04 am

    I am with Mike Spindell on this. Juries have many characteristics of the t-group or basic encounter group. Group dynamics are fascinating, and you are spot-on with your assessment of how they work, Mark. As I mentioned before in another thread, I did my dissertation on the factors that create psychological casualties in groups.

    Nice concept.

    Consider a million man jury compared to a six person jury.

    The size of the group tends to determine the number of casualties.

    We tend to count those “psychological casualties” based upon a bullseye analysis, which can miss the larger scope and expanse, the larger target.

    Consider a larger murder case.

    It is a missing the forest because of the trees and/or an economy of scale type thingy:

    The Act of Killing focuses on Anwar Congo, one of the self-proclaimed “gangsters” who executed over a million suspected Communists and ethnic Chinese in Indonesia during the bloodbath of 1965-66. Congo, much like his fellow executioners that he remains friends with, has yet to face prosecution for the war crimes he committed as a younger man and lives as a national hero.

    Congo is a man who appears to live in an eternal cinematic fantasy. He’s always dressed sharp—inspired by his Hollywood heroes John Wayne, Marlon Brando, and Elvis Presley. What exactly inspired him to murder a thousand people is never quite explained. The only slight ever mentioned that he takes from the communists was their desire to block screenings of his beloved American films. Tapping into this love of cinema, Oppenheimer offers him the opportunity to tell his story by making a dramatic film in which he’s the star of his own story.

    This does not end up being The Act of Killing itself, but a meta film-within-a-film that allows Congo to tell his own story as he chooses to see it, guts and all. He casts his own friends, adds a romantic subplot where one of his friends dresses in drag, and even has musical finale at the foot of a waterfall where his own victims thank him for murdering [them]. But despite all of these flourishes, he manages to stay true to the story in the recreation of his preferred method of execution.

    Demonstrating to Oppenheimer’s documentary crew how he strangles his victims with wire, he boasts that he learned it from American gangster films.

    (Hypothesis: The Cultural Amygdala – 2). Like Zimmerman to some, Anwar Congo is seen as a national hero.

    So who is the psychological casualty society itself, or is that too large a group for our current practice?

    I guess the same goes for the criminal jury?

  2. This is fascinating material, Mark, and one can more fully appreciate the circumvolution of thought both the prosecutor and defense lawyer must put into not only the jury selection but the ongoing presentation to that small audience. Round and round.

  3. TonyC, I agree most people, to varying degrees, shy away from confrontation. And, I agree that can be a problem if you have a bully[s] in the jury room. However, during voire dire, attorneys are looking for someone who they see as sympathetic to their client, and if they are assertive, even better. That is part of the adversarial process. Both sides have an opportunity to pick those type jurors.

    When I lived in Missouri a woman could be excused from jury duty simply by invoking here being a woman. That was up until the mid/late 70’s! So, you had few females ever on a jury. A smart public defender waited until he lost a big murder case and appealed on the unfair jury grounds, winning in the Mo. Supreme Court. I forget the case but it was out of Jackson County I believe. Stupid laws like that are now gone. The groupthink dynamic you all describe w/o a doubt occurs. That is the flaw we see in 12 Angry Men. We also see the counter to that dynamic in that same play/movie.

  4. Tony C.,

    What? Some people are naturally not confrontation averse? I represent that remark. 😀

  5. I have nothing but praise for Mark O’Mara, he keeps to the facts and teaches at the same time. He seems to be an honorable man.

  6. Great job Mark. I think the Vatican discussion or review of the Sex abuse scandal had a lot to do with sheer arrogance along with the group think aspects discussed in your article.

  7. Nick: I do not think so. Marketers form focus groups on all sorts of things, consistently. Some professionals at this that I know, in radio, TV, and commercial industry, say that as you observe these group in action (by hidden camera or otherwise) they almost always end up with one “opinion leader,” and the exceptions to that are almost always a highly polarized group split into two factions, each with a leader.

    Even among complete strangers, there is peer pressure; people quickly come to identify with a group (often in under 20 minutes), the group quickly comes to see one person as their leader. Unless there is a polar difference in opinion, then even when the stakes are high people settle for “close enough” and just go along.

    As Mark noted, most people are just not up for confrontation of any kind.

    I happen to have been raised by my father to be intellectually confrontational (and physically confrontational when necessary), so I do not personally fit that pattern; but I think most people are raised to not challenge authority and to go along and get along, to identify with a “team” or “side” or “group” and defer to its judgment. That training can be undone by particular cultures (academia, law, law enforcement) but at the same time it seems to be a very natural pattern into which we can all fall.

  8. I am with Mike Spindell on this. Juries have many characteristics of the t-group or basic encounter group. Group dynamics are fascinating, and you are spot-on with your assessment of how they work, Mark. As I mentioned before in another thread, I did my dissertation on the factors that create psychological casualties in groups.

    Without naming names or location, I have a funny story about jury selection. A colleague of mine was called for jury duty in criminal court. She works in a major metropolitan area, so unlike smaller towns where everybody knows everyone, she did not know anyone involved in the case and they did not know her. When she filled out the questionnaire, she put her employer as the state and that she was a state employee. During the group voir dire, no questions were asked about what she did for the state, or what department she worked for. She answered all questions truthfully, and neither attorney questioned her personally.

    In subsequent years, she has traveled around the country, giving CLE lectures and telling her story. She has both a PhD and JD degree, and is a board certified forensic psychologist as well as having a license to practice law. At the time she was called for jury duty, she was working as an attorney. Specifically, she was an assistant district attorney. Both the prosecution and defense made the mistake of forgetting the word “assume” begins with “ass.” In her lectures, she is careful to point out that she took her oath as a juror seriously, and did her best to consider all the evidence fairly while deliberating. Despite her formidable education and steel-trap mind, she did not try to be an Alpha person in the room. However, she would not trade the insights she got while serving on jury duty for any amount of money. In the years following, that experience served her well as an attorney, and after leaving the DA’s office, as a forensic psychologist consulting with attorneys.

  9. nick:

    ” The groupthink dynamic examples you cite are of people who have known each other, worked together, gone to the same schools, etc.[Bay of Pigs, Desert One]. Don’t you think they are much more vulnerable to the foibles you point out than a group of diverse people, not knowing each other, put together for a short time?”


    Without sounding trite and in view of my loathing of this playing-for-time response, that really is a great question. I think both groups are vulnerable and as we’ve seen education and social status are not inoculations against the problem. Unfamiliar persons brought together are often wary of one another but the intimacy of the jury setting forces their cohesion. Certainly not as strong as persons who have known each other for years, but a similar condition arises when you are thrust together to do a job.

  10. Superb. Here’s my question. The groupthink dynamic examples you cite are of people who have known each other, worked together, gone to the same schools, etc.[Bay of Pigs, Desert One]. Don’t you think they are much more vulnerable to the foibles you point out than a group of diverse people, not knowing each other, put together for a short time?

  11. Mike S:

    Thanks, Mike. I’m enjoying writing it. I once had a psychology professor tell me the only thing a person really needs to succeed in life is an understanding of group dynamics. I thought he was crazy then. I think he’s a genius now.

  12. Mark,

    This isn’t a series of blogs, it is an advanced degree course in group psychology. Starting with the psychology of jurors as your microcosm, you elucidate on the phenomena in the societal macrocosm of how dysfunction arises in insular decision making. Superb analysis using examples that add coherence to your points. When I am educated by somethiing that leads my mind racing to use as a template with which to view other situations to enhance my understanding of their outcomes, I am learning rather than injecting my own pre-judgments. “Bravissimo!”

  13. Justice Holmes:

    “Jurors in big cases have become celebrates.”


    And they know they will become so. We’ll talk about that next week.

  14. Jurors in big cases have become celebrates. I don’t like to think this new component of “juries now” impacts their decisions but I am afraid it does. Juries in major cases end up on the TODAY Show or CNN or MSNBC or HffPost Live. They get to spin a story of what went on in the jury room. Its a bad idea.

    How do you think this impacts what happens in the jury room?

  15. Tendencies meet in the jury room, like points on a compass. Then a spin the bottle episode breaks out but then morphs into a struggle to give birith to twins. Embarrased by it all, groupthink begins to evangelize, patting them all on the back as they take a turn toward compromising and becoming at one.

    Then they leave the jury room to deliver their baby, so the judge will let them go back to their not-at-one world at large. Where they are digested by big media jellyfish.

    It is quite like a very shortened version of the life cycle dynamics of the characteristics of blog commentators.


  16. That was well worth the wait, Mark. And if past response is any indication, when you move on to Zimmerman, you’ll really be going for the gold. Bravo.

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