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Opt for the Village: Jury Trial Better for Defendant in Close Evidentiary Calls

January 16, 2012

1. History, 2. Law, 6. Trial

Opt for the Village: Jury Trial Better for Defendant in Close Evidentiary Calls

It’s a fundamental issue to resolve for every trial:  Take a jury or opt for a bench trial (over which a judge presides without a jury)?  Commonly agreed reasons for opting for a judge-only trial include highly technical defenses and highly emotional cases.  Judges are less likely to be swayed, so the story goes, by graphic evidence when someone substituted “human child” for “tender beef” in great-gramma’s famous Winter Stew recipe.  I don’t dispute those bases, but perhaps they are viewing the decision from the wrong perspective.  Keeping in my mind that a Pennsylvania District Attorney has an equal right to a jury trial, so you both have to agree to waive, perhaps the decision can be made on form rather than substance.

Here’s your spoiler:  Read “Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt.”  Follow the link then download the article.  If you’d rather spend some time with me than 30+ pages of academia, I understand … read on …

Start with The American Jury by Kalven and Zeisel.  Seminal book from 1966.  A takeaway was the “liberation” jurors felt in close cases to set aside the law and introduce extra-legal values in arriving at a verdict. When a case approached a coin flip, it was asserted that jurors got “sentimental.”  To focus their analysis, they isolated jury cases where the judge disagreed with the jury’s verdict – either the jury voted to acquit and the judge would have found the defendant guilty, or the opposite mix.  Now, I can’t suggest a word as strong as the “fallacy” of Kalven and Zeisel’s research, but there was a fundamental flaw.  Regardless, my comment should not be taken as reducing the value of The American Jury – it’s required reading for every litigator.  However, when they claim that jurors set aside the law in favor of “sentiment” when they disagree with the judge, they got that opinion from … judges.  Hunh?  Yeah, they didn’t ask jurors why they found as they did – opposite what a judge would have done – they asked the judge why the jury found as they did.  Um, OK.  With the spoiler link above (and other research over the last three decades), that oversight in the research has been corrected.

Before we proceed, let’s put that in perspective.  We’ve been told for decades that juries are emotional beasts capable of being swayed particularly in close cases.  They showed us the data – The American Jury- to prove it. It turns out that the data was right as to result but wrong as to process:  Yes, we win more close cases, but not for the reasons proffered. I don’t know how you all work with juries, but I don’t supplicate at the strings of their hearts (remember, I don’t do civil). Turns out I may be the blind squirrel that finds a nut every once in a while.

Here’s a taste of post-American Jury research:

Extra-evidentiary factors affect jury verdicts, but the contexts in which such factors exert influence are limited. Research conducted in the 1980s using data from thirty-eight sexual assault cases found that juror decisions are dominated by evidentiary factors as opposed to victim or defendant characteristics and that juror attitudes have little explanatory power with respect to case outcomes. Further analysis of the same set of sexual assault cases suggests that when liberation based on juror sentiment did occur, it was only in those cases that were closest on the evidence. Other research has found that “case related” extra-evidentiary influences such as charge severity, pretrial publicity and trial complexity affect jury verdicts, but only when the evidence presented by the prosecution is ambiguous or weak.

See page 8 of the spoiler link to catch the referenced studies.  So, some liberation continues to exist, and jurors look outside the evidence when the prosecution does what they do best – drop the ball.

Previous studies have also suggested that juries are very focused on the defense case:

Research using the NCSC data indicates that jurors are more attuned than judges to features of the defense case. Whether the defendant produced a witness to support his version of events, whether or not the defendant had a criminal record, and whether he refused to plead guilty on the ground that he is innocent affect juror willingness to acquit, but have little impact on the judge’s evaluation of the case.

See Judges and Juries: The Defense Case and Differences in Acquittal Rates, Givelber Farrell (2008).  These are all form issues – nothing to do, necessarily, with the substance of the case.

And now back to the instant study.  The raw data is as follows:

  • 64% (185 out of 289) of the cases resulted in agreement between the judge and the jury on conviction,
  • 13% (37 out of 289) resulted in the judge and jury agreeing on acquittal,
  • 17% (49 out of 289) resulted in the jury acquitting when the judge would have convicted, and
  • 6% (18 out of 289) resulted in the jury convicting when the judge would have acquitted.

If all we care about is whether or not to have a jury, we’re done here.  Who cares why the judge and jury disagreed? Out of the 67 cases where disagreement occurred, almost 75% of them went for a defense verdict.  That’s good stuff.  But, I guess we need to try to understand why.

These observations are instructive:

The average number of witnesses and exhibits presented by the prosecution is higher in cases where the judge and jury agree on guilt (an average of 23 prosecution witnesses and exhibits) than those cases where the judge and jury agree on acquittal (an average of 13 prosecution witnesses and exhibits) or the jury disagrees with the judge (an average of 18 prosecution witnesses and exhibits in liberation cases).

Let’s stop there.  Yes, when the Dark Side has more witnesses and exhibits, they usually have a stronger case.  I get that.  I saw an acquittal trial last week where they had 16 – one witness, 15 exhibits.  But assume they had 7 more witnesses to bolster their case – that’s more cracks at cross, too.  And many times prosecution exhibits border on cumulative – each piece of clothing, etc.  Further, the fewer number the quicker the trial.  Can we draw from this that quicker trials are more likely to acquit?


The nmber of witnesses and exhibits presented by the defense is not significantly related to the case outcome. The quality of the defense presented, however, does affect whether or not the judge and jury agree. When the defense presents a weak case (either no witnesses testify or only the defendant testifies as a witness) the judge and jury agreement about guilt is quite robust (76%). When the defense presents a stronger case (defense witnesses testify alone or in combination with the defendant), agreement about conviction drops to 53%. Juries are twice as likely to acquit when the judge would have convicted in cases where the defense presents a witness other than or in addition to the defendant. Not surprisingly, the judge and jury are the most likely to agree about acquittal in those cases where the defendant and a supporting witness testify together.

What to do?  Find more defense witnesses, somehow, anyhow.  Just do it.  While the data suggests that we do well with he-said-she-said trials, it also tells us that we can move mountains with even a little bit of testimony beyond the defendant.

This next bit is disturbing.  As you read, remember something.  In most trials, the juries do not know whether or not a defendant has a criminal record.  Further, in order to gain some consistency in the data, the researchers used the bald fact of whether a criminal history existed – and had to ignore whether the jury knew of it or not (or the lack of it or not).  So are the jurors guessing about a defendant’s past and acting based upon that?

The findings from the NCSC data reveal that the defendant’s lack of a criminal history significantly predicts judge and jury disagreement about conviction. Judges and juries were significantly more likely to agree about the case outcome in those cases in which the defendant had a criminal history (agreeing to convict 70% of the time). When the defendant did not have a criminal history, agreement on conviction dropped to 43%, and 30% of these cases resulted in jury acquittals when the judge would have convicted. In fact, judges disagreed with the jury’s decision to acquit defendants without a criminal history two-thirds of the time, suggesting that the lack of a criminal history may have moved juries towards acquittal in many cases in which judges believed the defendant to be guilty.

Whew.  Now, that is relying on purported information outside the evidence.

And then the study goes into recapitulation of The American Jury and its own findings.

Here’s the drill:  In close cases – where we take 75% of the wins in a jury-rather-than-bench trial – we win through quality of the evidence (witnesses other than or in addition to the defendant) and, I guess, a clean-looking defendant with no apparent priors.

We’ll still opt for bench trials now and then, but my overwhelming position is “Bring on the jury.”

UPDATE:  Found a research paper on point, kinda sorta.  “Jury Size and the Hung-Jury Paradox.”  Here’s the Abstract:  In the United States, the 1970 Supreme Court decision Williams v. Florida 399 U.S. 78 (1970) reduced from twelve to six the minimum number of jurors required under the Sixth and Fourteenth Amendments. In the hope of improving the legal process with faster deliberation and fewer mistrials, eleven states have used juries of less than twelve in felony cases. This has given origin to an unprecedented natural experiment on jury decision-making. Contrary to the predictions of probability theory, the reduction in jury size has not brought the expected reduction in the number of mistrials. In this paper we provide a possible explanation for this fact. We formulate some propositions considering the case of jury deliberation in the presence of informational cascades. These results have implications not only for juries, but also for democratic theory.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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