Juries: US and France

1. Juries: US and France Charlan Jeanne Nemeth Univ California, Berkeley USA Presentation to Jury Research Conference, Sydney University Law School, Sydney, NSW Oct 17, 2003

2. US and France: similar histories regarding composition of juries • Initially, • US: white male landowners • France: bankers,highly placed functionaries, status and money • Eventually, • Right to serve on juries became democratized in both countries

3. Discrimination remained • IN both the US and in France, • under-representation of the very poor and the very rich, females (esp in France), the very young and the very old.

4. Juries in the United States • 12 people (normally); all laymen • deliberate to unanimity (normally) • deliberation is secret • no one is present except jurors (ordinary citizens) for deliberation

5. Juries in France • 12 people on “jury” consisting of 3 judges and 9 laymen • Only 8 out of 12 votes are needed for conviction

6. Power/Status: Judges “inside” the jury • France: 3 judges deliberate with 9 lay jurors on both conviction and punishment • Red robes, at elevated table surrounded by beautiful art and long traditions • Status induces compliance

7. The issue of unanimity 12 unanimous vs 8:4 It almost changed in the US: Apodaca etal v Oregon; Johnson v Louisiana (l970)

8. “First Ballot” and “Final Verdict”

9. Apodaca,Cooper and Madden v.Oregon Johnson vs. Louisiana -- Court Opinion (Nemeth,1981;2001) “We have no grounds for believing that majority jurors aware of their responsibility and power over the liberty of the defendant would refuse to listen to arguments presented to them in favor of acquittal, terminate the discussion, and render a verdict. On the contrary, it is far more likely that a juror presenting a reasoned argument in favor of acquittal could either have his arguments answered or would carry through other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose -- when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its decision.”

10. Apodaca,Cooper and Madden v Oregon Johnson v Louisiana -- Dissenting Opinion Non-unanimous juries need not debate and deliberate as fully as most unanimous juries. As soon as the requisite majority is attained, further consideration is not required either by Oregon or Louisiana, even though the dissident jurors might, if given the chance, be able to convince the majority . . . The collective effort to piece together the puzzle of historical truth . . . is cut short as soon as the requisite majority is reached in Oregon and Louisiana . . . It is said that there is no evidence that majority jurors will refuse to listen to dissenters whose votes are unneeded for conviction. Yet, human experience teaches that polite and academic conversation is no substitute for the earnest and robust argument necessary to reach unanimity.”

11. The experimental evidence • Most studies show no significant differences in verdict as a function of unanimity vs some sort of majority rule • Groups “hang” more often under require-ments of unanimity • A 2/3 majority “wins” Davis,Kerr,Atkin,Holt&Meek, l975; Davis,Bray &Holt, l977; Nemeth,l977

12. Questions • If unanimity NOT required, • would minority views be given due consideration? • Would there be premature consideration --stop after requisite majority is reached • would community confidence be undermined?

13. An experiment and Trial Court (Nemeth,1976;1981,2001) • First degree murder case in experimental setting:2/3 majority vs unanimity required • Trial court practice: arson, contract default, murder,etc.

14. Stopping short of unanimity (as soon as the requisite majority is reached)? Maj rule: Stop short of unanimity but do not stop at requisite majority 4:2 5:1 6:0 4 9 5 The answers

15. Due consideration to minority views Functional deliberation time Maj rule Unanimity 12.45 17.66 The answers

16. Community confidence Agreement with verdict Maj Unan 3.77 4.45 Justice administered Maj Unan 3.49 3.78 The answers

17. The answers: The nature of the deliberation • More “conflict” under unanimity • comments “giving information”; “giving opinions”

18. Bales Categories Nemeth,1976 1. Seems friendly (Ex. “I’m sorry”; “that’s a good point”) 2. Dramatization (Ex. “The butler did it,” joking; undue exaggeration) 3. Agrees (Ex. nodding in agreement; “Yes, that’s right”) 4. Gives suggestion (Ex. “Let’s take a vote”; “let’s look at the motel clerk”) 5. Gives opinion (Ex. “I think he’s guilty”) 6. Gives information (Ex. “There was one eye witness”) 7. Asks for information (Ex. “Don’t they usually give salesmen a special company card?”; “what time did the guy leave?”) 8. Asks for opinion (Ex. “What do you think now?”; “what do you think of the fact that Mr. Smith’s fingerprints were found on the poker?”) 9. Asks for suggestion (Ex. “How shall we get started?”; “what do you want to do?”) 10. Disagrees (Ex. “You are wrong”; opinions in direct disagreement to a previous recent statement) 11. Shows tension (Ex. laughter, stuttering, fiddling) 12. Seems unfriendly (Ex. interruptions, “That’s a stupid thing to say”)

19. The nature of the deliberation • Functional deliberation time greater under requirement of unanimity. • Minority views are expressed --equivalent comments to majority for longer time.

20. The difficult question: how is justice best served, truth best detected? • Protection of minority views may be important, not because they hold a “truth” but because their views stimulate divergent information processing and thought.

21. MINORITIES stimulate: search for more infor- mation on all sides utilization of all strategies detection of novel,correct solutions more creativity;better group decision making MAJORITIES stimulate search for information supporting majority utilization of majority strategy following of majority; no novel detection reduced creativity; premature consensus Majorities vs Minorities(Nemeth,l995;2001;West&DeDreu,2001)

22. Process for detection of truth? • Smarter people? The role of education, training, expertise • Stimulating divergent thought? Protecting minority views by less status differences and a requirement for unanimity??

23. Questions of Democracy and “Due Process” • Do we really trust the layman? • OR Do we prefer the educated, the expert • Do we want majorities to rule? • OR Do we require unanimity, protect minority views and take the chance of “hung” juries

24. Selected References • Bermant, G., Nemeth,C & Vidmar,N (eds (1976) Psychology and the Law: Research Frontiers. Lexington,MA: D.C.Heath &Co. • Nemeth,C (1977) Interactions between jurors as a function of majority vs unanimity decision rules. Journal of Applied Social Psychology 7, 38-56. • Nemeth,C. (1981) Jury trials: Psychology and the Law. In L. Berkowitz (ed) Advances in Experimental Social Psychology(vol 14,pp309-367). New York: Academic Press • Nemeth, C (1984) Processus de groupe et jurys: Les Etats-Unis et la France. In S. Moscovici (ed) Psychologie Sociale (pp229-251). Paris: Presses Universitaires de France. • Nemeth, C (1995 Dissent as driving cognition, attitudes and judgments.Social Cognition, 13, 273-291. • Nemeth,C.J. (2001) Dissent, diversity and juries. In F.Butera and G. Mugny (eds) Social Influence n Social Reality (pp23-32). Bern: Hogrefe & Huber.