Barbara Rich Bushell wrote an interesting article on identifying jury leaders for the most recent edition of The Jury Expert. In her article, Bushell argues that jury leaders can have a powerful influence on the deliberation process and, by extension, on the outcome of a trial. She sees identifying jury leaders during voir dire as an important part of a winning trial strategy. Because her theoretical approach to jury deliberations differs from mine, her article made me re-visit my own views on the subject.
When selecting a jury or helping attorneys develop a strategy, I don’t place much importance on jury deliberations. My experience has been that jurors’ verdicts after closing arguments are a very good predictor of their verdicts after deliberations. As a result, the side most jurors think should win at the beginning of deliberations is the side that almost always wins, so the trial is won or lost long before deliberations begin. It is extremely rare that jurors in the minority are able to sway enough of the other jurors to change the eventual verdict. Kalven and Zeisel’s pioneering book The American Jury contains a memorable quote about jury deliberations: “The deliberation process might well be likened to what the developer does for an exposed film: it brings out the picture, but the outcome is predetermined.”
That’s not to say that jurors don’t change their votes during deliberations, because they do. But having conducted hundreds of post-trial juror interviews and watched scores of mock jury deliberations, I’ve found that jurors typically change their vote for one of two reasons:
1) they didn’t understand an important argument or piece of evidence that was then explained to them by the other jurors, or
2) they acquiesce to the will of the majority in order to reach a verdict.
The first scenario usually happens early in deliberations, when a juror reveals through the discussion of the case that he or she has misunderstood or overlooked an important piece of evidence. When that happens, it is usually several jurors, rather than a single leader, who point out the error. The second scenario happens near the end of deliberations, when the jury is close to the vote needed to reach a verdict. And again, it is the pressures exerted by the group and the social norm of bending to the will of the majority that evoke the change in vote.
Although Bushell and I have different views on the importance of deliberations, we arrive at the same conclusions about jury selection strategy. All of her recommendations for jury selection are very good. What she refers to as “jury leaders” I think of as “strong” jurors who are likely to be receptive to our case and skeptical of our opponent’s claims. Although our theoretical views differ somewhat, our practical approaches are very similar.
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