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HONORS 230 C

Term Paper

Jiamei (Joy) Shang

December 8, 2017

Arbitrary Pressures on Jurors

(and How We Can Overcome Them with the ‘Wisdom of the Crowd’)

Carmella, a middle-aged restaurant manager, settled herself at the table with eleven of her

fellow jurors to decide the fate of Mark Ducic. They had already sat through days of trial

proceedings and had several more days of deliberation ahead of them where they would

determine whether Ducic was guilty or innocent of the thirty-two counts held against him. The

first count they would undertake was the homicide of Barbara Davis, Ducic’s common-law wife.

A foreman was quickly chosen, Chuck, a marketing specialist who happened to be sitting

at the head of the table and was one of the two men on the jury. They began by going around the

table with each juror sharing their initial opinion on what the verdict should be. The majority of

the jurors already seemed convinced that Ducic was guilty. Carmella was one of the few who

was unsure, saying “I don’t think Mark Ducic is a great guy… In many ways he deserves,

possibly, to get the electric chair. The fact is, it says in here, if you found that the State did not

present their case fully… then you can’t put him to death.” Despite her reasoning, an hour into

the deliberations the first vote revealed ten jurors in favor of guilty and two in favor of not guilty.

A couple hours later and Carmella was the only juror not convinced of Ducic’s guilt. Carmella

defended her position over and over to the eleven others, remaining resolute that there was not

proof beyond a reasonable doubt that Ducic had murdered Barbara Davis.

The jurors paused the deliberations for a lunch break. Carmella was late to return, putting

further discussion on hold. When she did arrive, Carmella declared that she no longer wanted to
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participate in the deliberations, saying “I have never felt so much pressure that I have felt in this

room in such a short amount of time having to make a decision like this [sic].” However, after

speaking with the judge, Carmella consented that she was still capable of fulfilling her role as

juror. Deliberations resumed. After a short while, the jurors reached the unanimous decision that

Mark Ducic was guilty of murdering Barbara Davis. The jurors applauded themselves.

Over the next two days, the jury would find Ducic guilty of thirty of the thirty-two counts

against him, including another homicide. Ducic was sentenced to two life sentences without

parole.

(ABC News; “State of Ohio vs. Marc Ducic”)

Social Pressures in the Deliberation Room

The above scenario was derived from real deliberations which decided the outcome of an

actual case that ABC News videotaped and aired in their television series, In the Jury Room.

Witnessing these proceedings, it became apparent to me that the factors that contributed to the

ultimate verdict were not purely judicial but also influenced by the social interactions taking

place. For instance, if the deliberations had not begun with announcing the jurors’ verdict

preference but had focused on the significance of evidence, Carmella might not have found

herself defending her views to eleven others who had sided against her since the onset. Indeed,

it’s no wonder that Carmella eventually gave in to the constant questioning of her beliefs and

pressure to conform.

As such, the issue I will be addressing in this paper is the bias introduced into jury

deliberations by the social pressures acting upon jurors. This bias makes jurors more likely to

vote in a different way than they would have individually for non-factual reasons. These reasons
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may be as simple as the age of jurors, the order that the speak in, and the location of the trial.

Due to these biasing influences, it is possible that the opinion of jurors coming out of

deliberations is less accurate than their opinion going in. I believe that it is dangerous for us to

rely on a jury system that is so easily swayed by arbitrary factors which have no relation to the

guilt or innocence of the defendant. In order to improve the quality, accuracy, and reliability of

our criminal justice system, we must examine our current practices with rigour and be willing to

adapt them accordingly.

Origins of Social Pressure

The groundwork to our understanding of inequalities during jury deliberation began with

the Chicago Jury Project of 1953. The project conducted a series of studies focusing on jury

decision making, including the analysis of archival data, interviewing attorneys and jurors, as

well as conducting mock juries. Their results created a wealth of data that revealed the inner

workings of a process previously veiled to the public. Among their findings from mock juries

they reported that a small subset of jurors, typically white males with social prestige, dominated

the discussion while others barely spoke (“Chicago Jury Project”). Such findings indicate that

participation among jurors is not equal, as we might hope, but can often be lopsided.

UNEQUAL PARTICIPATION

Since the Chicago Jury Project, many additional studies have explored what non-

evidence based factors introduce bias into jury deliberations. Chief among these is determining

which individuals participate more during deliberations, with the understanding that increased

participation will likely increase the number of other jurors who are won to their side. Indeed,
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studies have found that three jurors take up over half the speaking time during deliberations,

leaving the remaining time for the other nine (York and Cornwell 458). Gender, race, age,

occupation, education level, and income all impact the participation of jurors, with white,

middle-aged men of high status occupations, high income level, and high educational attainment

participating the most (York and Cornwell 458-459; York Cornwell and Hans 670). Furthermore,

such individuals also have a higher chance of being chosen as foreman, giving them leadership

over the deliberation proceedings and being seen as more influential by their fellow jurors (York

Cornwell and Hans 671). Such was the case with the foreman from In the Jury Room, who

happened to be white, one of the two male jurors, and had a relatively esteemed career.

It is not difficult to understand why well-to-do white men have dominated the jury room

throughout America’s history. Even without declaring an individual’s exact occupation or

income outright, most people can deduce their social standing and believe them more or less

competent from that. This is based on the broad belief that those who have succeeded in the eyes

of society are more capable and intelligent. This phenomenon, which some researchers dub

“status generalization,” describes how “influence in groups flows to persons in historically

advantaged status categories because others simply assume that they are more competent” (York

and Cornwell 457). Admittedly, a portion of these results can also be attributed to the fact that

individuals with a higher education level and high-status occupation are likely more familiar

with exercising their abilities of public speaking, leadership, and persuasion. Nevertheless, these

skills do not equate a better understanding of court proceedings and we should not discriminate

against jurors with less social status.

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Over time these inequalities have actually lessened, with women and black people1

participating at similar rates as their white male equivalents (York and Cornwell 464; York

Cornwell and Hans 681). It appears to me that equality has been gained in the jury room as they

have been fought for outside of it. This raises the possibility that the differences in participation

levels will continue to equalize as historically marginalized groups gain equal treatment across

the nation. However, as we can never rationally believe that all inequality will be eradicated,

different social groups will always wield less or more influence during deliberations.

REQUIRED UNANIMITY

Beyond the perceived competencies of jurors, the pressure to come to a unanimous

verdict can also significantly alter the outcome of a trial. Jurors will naturally feel obligated to

cooperate with others in order to decide on a verdict and end deliberations in a timely matter.

The verdict-based deliberation style demonstrated by In the Jury Room, where jurors began by

revealing their preferred verdict, is particularly problematic by leading to information cascades.

This occurs when the first few jurors all agree on their initial verdict, thus giving off the

impression that the rest of the jury will also be in consensus (Hedden 384). Even if the majority

of the jurors disagree, they might doubt their original beliefs and feel inclined to conform to the

apparent consensus. Indeed, a study of 3,500 jurors found that 38% of the juries included at least

one juror who would’ve voted against the final group decision if it were up to them and 54%

where at least one juror was unsatisfied with the charges (Heden 384). As we saw with Carmella,

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Interestingly, York Cornwell and Hans found that black jurors not only meet the participation rates of white jurors
but sometimes exceed them, with nearly half of black jurors participating at the highest level (681). Furthermore,
black jurors reported an even greater participation level when examining cases with a black defendant (678). As the
older studies that I reviewed did not portray this phenomenon, I would be interested to see how black participation
in jury deliberation has changed over time. I suspect that the growing support for Black Lives Matter, and similar
social justice movements, has increased the empowerment of black people and awareness of racial discrimination
within the criminal justice system, which is another topic unto itself.
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one juror will often feel defeated when arguing against a large opposition and eventually comply

with the majority decision.

In the process of coming to a consensus, juries also have a tendency to escalate sentences.

Mock juries that were asked to award punitive damages to civil trials delivered more extreme

results after coming to a consensus, averaging 27% higher than any of the damages preferred by

individuals before deliberations (Hedden 387). The mock juries displayed higher variability as

well, indicating that juries tended to significantly raise or lower the amount of damages they

delivered as a group. As this study focused on punitive damages, the results cannot be directly

translated to criminal charges. Further studies would be needed to confirm that a similar

polarization effect occurs when determining prison sentences. However, I suspect that similar

social pressures would act on juries in both types of cases.

CASE SPECIFIC VARIANCES

As different counties, cities, and neighborhoods vary in culture and composition, it

should come to no surprise that participation of jurors varies between different locations.

Although this seems like a fairly common-sense realization, few legal processes acknowledge it

and research studies on the topic are few and far between. One such study compared jurors in the

Bronx NY, Los Angeles CA, Maricopa AZ, and Washington D.C.. Researchers found that

Maricopa and Washington D.C. jurors participated more, while female jurors in Los Angeles

participated less than their counterparts (York Cornwell and Hans 683). Furthermore, this gender

inequality was especially prominent among Asian Americans. It is unclear what social factors are

contributing to these differences but it brings forward the fact that location specific factors also
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impact social interactions during jury deliberations. Thus, a trial in one city can come to widely

different conclusions than if the exact same case were tried in another city.

The type of crime being tried also alters the participation level of jurors, with more

serious crimes receiving higher levels of participation. For instance, jurors participate more for

crimes involving murder and sexual assault than nonviolent crimes (York Cornwell and Hans

686). The cases where jurors participate the least include robbery, assault, child abuse, and

various drug-related crimes. While this may be a mere function of the human psyche, or perhaps

a sense of guilt accompanying the death penalty, it means that the quality of deliberations will

depend on how much importance jurors give the case. That being said, being convicted of any

felony will drastically affect your life prospects and I’m sure that defendants of non-violent cases

would appreciate being given the full consideration of their jurors.

Jury Decision Making Without Deliberations

Due to unequal participation of jurors, the pressure for consensus, the type of case, and

other factors not discussed in this paper, the jury deliberation process is not the shining beacon of

American democracy that some hail it as. Instead, it is wrought with inconsistencies, unfairness,

and arbitrariness. These failings are not the fault of the jurors but the process of jury decision

making itself. However, as these social inequalities will never be eliminated in society, we need

to consider verdict producing processes that rely on citizen participation but also minimize the

influence of social pressures. Some might prescribe increasing structure and controls during jury

deliberations. Indeed, I will describe one such method in the next section. The solution I prefer,

alternatively, removes the deliberation process altogether and isolates jurors in their evaluation

of the case.
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This method presents each juror with a list of evidence for the prosecution and the

defense, which is decided upon before the trial between the lawyers and judge. This list can be

comprised of a variety of evidence types, such as DNA analysis, eyewitness testimony, and

psychological analysis. Jurors are then asked to rate each piece of evidence on a scale of 1 to 10

based on how strongly it supports the prosecution/defense’s side, with a rating of 1 being the

weakest and 10 being the strongest. The juror then assigns a rating to the likely guilt of the

defendant based on evidence from both sides, where 1 is undoubtedly not guilty and 10 is

undoubtedly guilty. The overall ratings from all jurors is then averaged and applied to a scale of

verdicts. The lowest numbers on the scale would result in a not guilty verdict, medium numbers

on the scale result in a retrial, and high numbers result in a guilty verdict.

The individual evidence ratings are not meant to directly correlate with the overall guilt

rating. Instead, my intent with these initial judgements is to compel jurors to consider the

strength of evidence presented by the prosecution and defense and inform their conclusion on the

case as a whole. Such a set up will hopefully put the emphasis in jurors’ minds to focus on what

the actual facts of the case are, as opposed to speculation and stories, and may encourage

prosecutors to shift their trial tactics as well. As for the scale used to determine the verdict, I am

unsure which specific numbers would be ideal to delineate different outcomes as this Isolated

Evidence Evaluation Method has never been proposed or tested before. While we can apply

predominant theories of weighing false convictions and freed criminals, such as Blackstone’s

Maxim, I suspect that extensive research on mock juries, as well as discourse within the criminal

justice world will need to occur before this verdict producing method could be adopted.

This Isolated Evidence Evaluation Method adopts the premise of hypothesis testing from

scientific research and applies it to jury decision making. By maintaining the independent
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thought of jurors, we can treat each juror as an independent test of the trial, so that if multiple

jurors come to the same conclusion they reaffirm the validity of that result. However,

deliberations ruin this effect by removing the independence of each juror’s position and

introducing non-evidence based factors that affect their verdict. Instead, isolating jurors allows

us to take advantage of the “wisdom of crowd” theory, which states that the average of a large

group of peoples’ independent judgements will be near the true answer. The wisdom of the

crowd has proven accurate in predicting the outcome of elections, Oscar winners, and opening

box office records (Hedden 383), although it is not infallible.

Furthermore, a precedent exists for crowd-sourcing jury decisions. The Condorcet Jury

Theorem, first proposed by a French philosopher in 1785, provides proofs showing how the

probability that a crowd-sourced answer is correct increases as the number of participants

increases, given that the answers are independent and that individuals are better than chance at

answering correctly (Hedden 379). This theorem has been incorrectly applied to the American

jury system, where jurors are not independent. However, it would reflect on the Isolated

Evidence Evaluation Method of jury decisions, where jurors are independent. In terms of

probability, the current deliberation-based jury method is equivalent to one independent trial

group, as opposed to the twelve that could be achieved through isolated decision making, such

that:

Prob(accurate verdict | 1 trial group | - independence of jurors) <

Prob(accurate verdict | 12 trial groups | independence of jurors)

Furthermore, as the lack of deliberations would likely decrease the amount of time jurors spend

coming to a verdict, there is also the possibility for increasing jury sizes without additional cost.
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This would further increase the probability that the crowd-sourced answer would be correct

where:

x = number of jurors

Prob(accurate verdict | x trial groups | independence of jurors) <

Prob(accurate verdict | x+1 trial groups | independence of jurors)

In a justice system using the Isolated Evidence Evaluation Method, officials should strive to

increase the size of juries in order to increase the reliability and accuracy of verdicts.

Additional Jury Decision Making Methods

Besides the Isolated Evidence Evaluation Method, other solutions to pressures during

jury deliberations have been proposed, although none have been adopted in court. The first

method, called the DELPHI method, has many variants but is comprised primarily of alternating

rounds of anonymous voting and presenting summaries of the vote to jurors (Hedden 386). These

rounds are repeated until a majority/supermajority is met, or ends after a certain number of

rounds and the severity of the verdict will scale depending on the aggregate of juror votes.

Unlike the Isolated Evidence Evaluation Method, this solution still incorporates some limited

interaction between jurors. As such, we could not apply the Condorcet Jury Theorem to it. That

being said, this method still removes much of the social pressures from the deliberation process.

As it is more similar to current jury decision making, I also suspect that there is a higher chance

that it would be implemented.

The second method uses a secret ballot where jurors do not deliberate but vote

anonymously (Hedden 385). The defendant would be judged guilty or not guilty if a majority

(six out of twelve) or supermajority (ten or eleven out of twelve) agree. This method may even
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be preferred by prosecutors, as it does not require unanimity and may increase the number of

convictions they achieve without having to convince every member of the jury. Alternatively, the

vote could decide the severity of the sentence as opposed to a binary of guilty and not guilty

sentences. However, opponents of this method worry that a system of scaled sentences will

increase the number of innocent defendants being punished, albeit lightly, for a crime that a

traditional jury would not have convicted.

Thirdly, the probability averaging method also excludes deliberation, but has jurors rate

how likely it is that the defendant is guilty and also how confident they are with their judgement

(Hedden 385). These two numbers are then weighted, averaged, and then compared to thresholds

determining conviction or acquittal. The author of this method argues that this threshold should

be something debated among citizens and can develop reliability over time. This method is the

most similar to my Isolated Evidence Evaluation Method and they share many strengths and

weaknesses. I chose to modify my method to focus on evidence with the hope that it would force

jurors to evaluate the quality of arguments from the prosecution and defense.2

Criticism to the Isolated Evidence Evaluation Method

LOSS OF COLLABORATIVE REASONING

No solution to social pressures on jurors will be without its faults. This is true of the

Isolated Evidence Evaluation Method, as well as the current deliberation-based method used

across the country. Indeed, I suspect that the very activity that I hope to eliminate from jury

decisions, deliberation, will also be the main argument against the Isolated Evidence Evaluation

2
A phenomenon that I have observed, but not had the time to research, is how jurors tend to vote for the side that
presented the more compelling narrative, as opposed to the strongest evidence. While I will not be discussing this
issue, I wanted to propose a holistic solution that takes multiple factors into account.
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Method. Namely, we have such an ingrained trust that deliberations improve the accuracy of

verdicts that losing these supposed benefits may be unthinkable to some. The traditional

arguments for jury deliberations are that discussing the case allows a diverse group of jurors to

share their perspective from differing backgrounds, experiences, and beliefs. Doing so can

theoretically help other jurors gain new insight into the case and may encourage them to evaluate

the evidence more thoroughly. In addition, jurors are able to supplement their memories of the

trial proceedings by pooling their knowledge and discuss legal terminology that some jurors may

not understand. For instance, different jurors will recall parts of the trial with more accuracy than

others. By deliberating they can clarify unclear memories and reinforce correct ones, ideally

resulting in a more accurate verdict.

On one hand, I hope that this paper will have helped you realize that the deliberation

process is not nearly as collaborative as it may seem on the surface and that deliberation can

exacerbate individual biases rather than alleviate them. Furthermore, the main function of

deliberations is to generate a unanimous verdict among the jurors. Without the need for

unanimity, the value of deliberation decreases. Rather than assuming that deliberation generates

more accurate verdicts, I would suggest that we as a society re-examine what the ultimate goal of

jury decision making is and what the most accurate and efficient method to achieve it would be. I

believe that if our goal is to lower the number of false convictions, lowering or eliminating the

social pressures on jurors should be a priority.

SUBJECTIVITY OF ISOLATED EVIDENCE EVALUATIONS

Another objection is that jurors’ ratings of evidence strength is subject to their individual

knowledge of the reliability of that evidence type. For instance, relatively recent studies on bite
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mark evidence, which has been used for decades, revealed that it is not nearly as reliable or

scientifically valid as jurors have been led to believe (Committee On Identifying 87). As such, a

verdict decision method reliant on the quality of evidence will be undermined by unreliable

evidence.

This is certainly a valid concern for the accuracy of the Isolated Evidence Evaluation

Method. However, I would argue that the reliability of evidence is not an issue that should be

addressed during jury deliberations but instead during court proceedings. Similarly, unreliable

evidence is sure to undermine verdict decision making no matter the format, and deliberation

based-juries have already convicted an unknown number of innocent defendants because of this

reason. No one can deny that scientifically unproven evidence is a problem within the criminal

justice system. However, it is not an issue that can be solved by the method of jury decision

making.

PRE-DECIDED JURORS

One of my main concerns for the Isolated Evidence Evaluation Method is the juror who

walks out of the trial room already convinced in their mind that the defendant is guilty or

innocent. Such a juror may be unswayed by the individual evidence ratings, perhaps giving one

side all 10s and the other all 1s. This behaviour negates the ability of this method to encourage

jurors to be more considerate of the evidence and may weigh the results unreasonably in one

direction. This juror may also intentionally give an extreme guilt rating in order to ensure a

greater chance that their preferred verdict is achieved.

While this situation is a possibility, such biased behaviour is the very problem this

method is attempting to solve. On one hand, by forcing the juror to evaluate each individual
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piece of evidence, they will hopefully reconsider their opinion and take a deeper look at the

strength of the prosecution and defense’s arguments. In addition, the isolated nature of the

method can have a mitigating effect by preventing extremists from tainting the opinion of other

jurors. Indeed, such a strong-willed person is more likely to participate and vigorously argue

their position. By not allowing juries to deliberate, individual biases cannot multiply and

determine the overall verdict. Furthermore, if the Isolated Evidence Evaluation Method allows

for larger juries, the impact of pre-decided jurors can be further minimized.

Conclusion

Admittedly, the Isolated Evidence Evaluation Method for jury decision making exists in a

highly theoretical stage that remains untested and unrefined. However, these deficiencies do not

negate the potential it has to solve a seldom considered problem in our criminal justice system.

Inequalities will always exist in society to some extent and these inequalities are reflected during

jury deliberations, exacerbated by our verdict-producing systems, and augmented by natural

variances between cases. Through bypassing the deliberation system altogether and opting for an

anonymous, evidence focused method, we can eliminate these issues by giving each juror an

equal influence on the final verdict. Such a method exemplifies the values of a true democracy

while putting less innocent citizens behind bars.

Bibliography

ABC News. “’In the Jury Room’: State v. Ducic.” ABC News, 11 Aug. 2004,

abcnews.go.com/WNT/story?id=131811&page=1
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“Chicago Jury Project.” Criminal Justice, n.d., criminal-justice.iresearchnet.com/forensic-

psychology/chicago-jury-project/

Committee on Identifying the Needs of the Forensic Sciences Community, National Research

Council. “Strengthening Forensic Science in the United States: A Path Forward.” U.S.

Department of Justice, Aug. 2009.

Hedden, Brian. “Should Juries Deliberate?” Social Epistemology, vol. 31, no. 4, 2017, pp. 368-

386.

“State of Ohio vs. Marc Ducic.” In the Jury Room, ABC News, 11 Aug. 2004.

York, Erin and Benjamin Cornwell. “Status on Trial: Social Characteristics and Influence in the

Jury Room.” Social Forces, vol. 85, no. 1, 2006, pp. 455-477.

York Cornwell, Erin and Valerie P. Hans. “Representation through Participation: A Multilevel

Analysis of Jury Deliberations.” Law & Society Review, vol. 45, no. 3, 2011, pp. 667-

698.