Atlanta, 1973

1. Atlanta, 1973

2. Ballew v. Georgia435 US 223 (US 1978) Georgia Code Ann. § 26-2101 (1972) : Distributing Obscene Materials “Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value…”

3. Ballew v. Georgia435 US 223 (US 1978) Criminal Court of Fulton County

4. Ballew’s Motion • Jury of 5 Constitutionally Inadequate to assess contemporary standards of the community as to obscenity. (Not Representative). • Sixth and Fourteenth Amendments require a jury of at least 6. O V E R R U L E D GUILTY

5. Ballew v. Georgia435 US 223 (US 1978) Supreme Court of Georgia US SUPREME COURT Williams v. Florida (US 1970) (6 Member Jury OK) Court of Appeals of Georgia Fulton Co. Crim Court

6. The Problem with Williams v. Florida (US 1970) • “Rather than requiring 12 members, then, the Sixth Amendment mandated a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community.” • “Although recognizing that by 1970 little empirical research had evaluated jury performance, the court found no evidence that the reliability of jury verdicts diminished with six-member panels.” ~The Majority on Williams, from Ballew at 230.

7. The Problem with Williams v. Florida (US 1970) • “Rather than requiring 12 members, then, the Sixth Amendment mandated a jury only of sufficient size to promote group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community.” The Empirical Evidence that Size Doesn’t Matter? • Bald assertions and observations of court officials • Misinterpreted Studies: 5 to 1 ≠ 10 to 2 • Failure to Account for Representativeness: 82% to 32% 72% to 47% ~Michael Saks, “Ignorance of Science is No Excuse” (1974)

8. The Problem with Colgrove v. Battin (US 1973) • Held that Six member juries were constitutional for Civil cases. • Relied on Four Empirical Studies, but failed to critically evaluate the METHODS employed in those studies. ~Michael Saks, “Ignorance of Science is No Excuse” (1974)

9. The Problem with Colgrove v. Battin (US 1973) METHOD: Compare behavior of 6 and 12 member juries in jurisdictions where litigants can choose their jury size. Studies #1 and #2 FINDINGS: -No Significant Difference. -12 member juries deliberate longer, award three times as much damages, and require twice as much trial time. CONFOUNDING FACTOR: Attorney Choice ~Michael Saks, “Ignorance of Science is No Excuse” (1974)

10. The Problem with Colgrove v. Battin (US 1973) METHOD: Compare behavior of 6 and 12 member juries in a jurisdiction where courts switched from 12 to 6 member juries. Study #3 FINDING: -No Significant Difference. CONFOUNDING FACTORS: Mediation Board created at same time; evidentiary rules change. ~Michael Saks, “Ignorance of Science is No Excuse” (1974)

11. The Problem with Colgrove v. Battin (US 1973) METHOD: A “true experiment” – Randomly composed mock juries of 6 and 12 members watch a video of the same case. Study #4 FINDING: -No Significant Difference. FLAWS: (1)Tiny Sample Size (eight of each) (2) College Undergrads only (3) Mock Case heavily weighted to favor defendant. ~Michael Saks, “Ignorance of Science is No Excuse” (1974)

12. The Court’s Social Science Track Record on the Jury Issue as of 1974 “The Court currently believes the matter of equality of performance for different-size juries is now well established, when in truth there is still no evidence to support such a conclusion.” “The court and the respective advocates have consistently failed to exercise the modest expertise that oculd have prevented this remarkable incompetence.” “Simply an embarrassment.” ~Michael Saks, “Ignorance of Science is No Excuse” (1974)

13. Ballew v. Georgia435 US 223 (US 1978) The Williams decision spurred a flood of empirical studies. “We have considered them carefully because they provide the only basis, besides judicial hunch, for a decision about whether smaller and smaller juries will be able to fulfill the purpose and functions of the Sixth Amendment.” (231 FN 10).

14. 1.Effective Group Deliberation Lempert cites various studies, all tending to suggest that “progressively smaller juries are less likely to foster effective group deliberation.” -The more jurors, the better collective memory. -The more jurors, the more likely biases will be counterbalanced and overcome so an accurate result will be reached.

15. 2.Jury Accuracy and Reliability Nagel and Neef: Statistical study- As jury size shrinks, Type I error (false conviction) rises and Type II error (false acquittal) shrinks. Weighing Type I error as 10x more important than Type II, optimal jury size is six to eight. Five has high Type I error. Lempert: 12 person juries reach extreme compromises in 4% of cases; 6 person juries reach extreme compromises in 16% of cases.

16. 3. + 4. Bias against Defense and Minorities Zeisel and Lempert Studies: Shrinking jury size from 12 to 6 would cut the number of hung juries in half. -Criminal Juries tend to hang with one, but more likely two, jurors remaining unconvinced. Having an ally makes it much more likely a person in the minority will stand up for his or her opinion. -If a minority veiwpoint is held by 10% of the population, 28.2% of 12 member juries will have no minority members; 53.1% of 6 member juries will have no minority members- only 11% of 6 member panels would have two minority members, as opposed to 34% of 12 member panels. -The same numbers hold for minority representation on the jury.

17. 5. Methodological Problems in Studying Jury Size -Many studies use obvious/clear cases, so difficult to tell if jury size had any effect. -Aggregating data can mask Case-by-case differences in jury deliberations: Ex- Judges hold for plaintiffs 57% of the time; juries 59%- seemingly similar. However, case-by-case, judges and juries disagree 22% of the time. -The Michigan Study (#3 from Colgrove): Average damage award didn’t vary much after the switch from 12 to 6 member juries. But Case-by-case, Damages Standard Deviation was $58,335 for 6 member juries and $24,834 for 12 member juries.

18. Ballew v. GeorgiaHOLDING “…the assembled data raise substantial doubt about the reliability and appropriate representation of panels smaller than six.” Although the evidence does not draw a bright line between five and six, “any further reduction that promotes inaccurate and possibly biased decision-making, that causes untoward differences in verdicts, and that prevents juries from truly representing their communities, attains constitutional significance.” • Queasy feeling about Williams and Colgrove.

19. Ballew v. GeorgiaWrap Up • Georgia relies on the studies from Colgrove, whose flawed methodology has been discussed. • There is no pressing state interest to have a jury smaller than 6- it is not clear that the time and money saved would be substantial or worth the risk to justice.

20. Ballew v. GeorgiaConcurrence in the Result “Also, I have reservations as to the wisdom-as well as the necessity-of Mr. Justice BLACKMUN'S heavy reliance on numerology derived from statistical studies. Moreover, neither the validity nor the methodology employed by the studies cited was subjected to the traditional testing mechanisms of the adversary process. The studies relied on merely represent unexamined findings of persons interested in the jury system. The opinion of Mr. Justice BLACKMUN acknowledges, in disagreeing with other studies, that “methodological problems” may “mask differences in the operation of smaller and larger juries.”

21. People v. Allen (Mich. 1988) Issue: When to allow the prosecution to impeach the defendant’s testimony by telling the jury of the defendant’s prior criminal convictions. The Old Rule: Prior convictions can be brought up if the crime was punishable by death or over one year in prison, or if it involved theft, dishonesty, or false statement, regardless of punishment- AND if the court determines its probative value on the issue of credibility outweighs its prejudicial effect on the issue of guilt. The court must record its reasoning. (Michigan Rule of Evidence 609 (a) ).

22. People v. Allen (Mich. 1988) The Majority finds: It is easier for the jury to find that the defendant is a “bad man” than that he actually committed the crime of which he is accused. Jurors thus have an appetite to (1) convict a “bad man” with a criminal past, regardless of the lack of sufficient evidence (2) lower the burden of proof due to bad character of the accused and (3) assume a propensity for crime is proof of guilt.

23. People v. Allen (Mich. 1988) -The Majority also finds: The thought that Judge’s Instructions can prevent jurors from only considering prior convictions with regard to credibility (and not to overall guilt) is “simply mistaken,” as shown by “a number of empirical studies.”

24. People v. Allen (Mich. 1988) The Dissent challenges the Majority’s assertions about jurors and limiting instructions and the methodology of the studies the Majority relies upon, arguing that the Majority has merely codified its own opinion on the issue, using poorly designed studies for a pretext of support.

25. People v. Allen (Mich. 1988) Study #1: Hans & Doob, “Canadian Study” Method: Simulated juries studied. Finding: Evidence of prior conviction “permeates the entire discussion of the case” in spite of specific instructions to only apply such evidence to issue of credibility. Jurors barely even used the evidence with regard to credibility. Flaw: Mock juries and simulations are “imperfect tools for answering empirical questions.”

26. People v. Allen (Mich. 1988) Study #2: Doob & Kirshenbaum, “Halo Effect” Method: 48 persons approached in various public buildings. Each was read a 400 word descripton of a breaking and entering case, and asked “How likely do you think it is that he is guilty”- asked to rate guilt on an ordinal scale from 1 (definitely guilty) to 7 (definitely not guilty). Four groups of 12 were read slightly different scenarios: GroupGuilt Level 1-Just the facts 4.00 2-told lawyer saw no reason to put D. on stand 4.33 3-told D. testified but did not give “any important evidence”, and that D. has five prior convictions for breaking and entering, and two for possession of stolen goods. 3.25 4-same as above, but also with judge’s limiting instruction 3.00

27. People v. Allen (Mich. 1988) Study #2: Doob & Kirshenbaum, “Halo Effect” Finding:Halo Effect: Learning something bad about someone leads you to assume that other bad things about them are true. (the two groups who heard prior convictions both had higher ratings of probable guilt). Flaws: (1)tiny sample size (2)”no real basis for comparison between the methodology of this study and that of the courtroom”- no trial, evidence, voire dire, argument, witnesses, or deliberation.

28. People v. Allen (Mich. 1988) Study #3: University of Chicago Research Method: Jury Interviews. Finding: “Almost universal inability and/or unwillingess” among jurors to understand or follow court’s instruction on the use of prior conviction evidence. It is “almost universally” used to conclude that defendant was a “bad man,” and thus guilty. Flaws: (1) No information about size of pool observed or its representativeness (2) Vague about exact numbers, methods, and operational definitions (what were his criterea- how did he find out whether or not the jury understood?)

29. People v. Allen (Mich. 1988) Study #4: Columbia Journal of Law and Social Problems Method: Random national survey of trial judges and defense lawyers, asking whether they believed jurors were able to follow limits of judge’s instructions on the use of prior conviction evidence. Finding: 98% of responding defense attorneys said no, as did 43% of responding judges. Flaws: (1) Problem with reader-response polls- no control over representativeness of the sample.

30. People v. Allen (Mich. 1988) Study #5: Wissler & Saks Method: 160 Mock Jurors approached in public places and private homes, given a .two-page case summation and asked to determine guilt or innocence. Finding: Jurors use prior conviction evidence to help judge the likelihood of guilt in spite of limiting instructions; -Higher conviction rate when prior conviction was for murder as opposed to perjury, all else being the same. -No significant difference between mock jurors’ rating of defendant’s credibility between cases where prior history was introduced and when it was not. -Credibility NOT a function of prior conviction evidence -Conviction IS a function of prior conviction evidence.

31. People v. Allen (Mich. 1988) Study #5: Wissler & Saks Flaws: (1) Sample locations and size limited [only 20 people in group where prior history was of murder] (2)Researchers admit “one should be cautious in generalizing from the results of this study to jurors in a real trial”- Dissent: the obvious explanation for why the Credibility of Defendant did not change in participants’ eyes in spite of changing prior conviction information is that THERE WAS NO DEFENDANT. It is difficult to have any feeling about the credibility of a HYPOTHETICAL PERSON. Only a trial atmosphere can properly reproduce the circumstances under which a real juror must judge credibility.

32. People v. Allen (Mich. 1988) Holding -There is an “overwhelming probability” that prior conviction evidence introduced for the purpose of impeachment will be considered as if it had been introduced to show that the defendant acted in conformity with his criminal past.

33. People v. Allen (Mich. 1988) Revised Michigan Rule of Evidence 609: -Prior conviction evidence allowed only if the crime contained an element of dishonesty or false statement, OR, an element of theft and was punished with over a year in prison or death =AND probative value toward credibility outweighs prejudicial effect. -New Explicit Instructions on Weighing: =Probative Value: ONLY consider age of conviction and how indicative it is of veracity. =Prejudicial Effect: ONLY consider prior conviction’s similarity to current charge and possible effects on decisional process if admitting the evidence causes defendant to decide not to testify. =Court must record its reasoning

34. People v. Allen (Mich. 1988) Basis for Holding -We welcome the dissent’s critique of the methods and conclusions of the studies we relied upon, “as social science experiments cannot serve as the primary basis for judicial decision. Many fundamental principles of our jurisprudence are based on assumptions of human behavior that have never been, and in most cases cannot be, scientifically tested. -Our modification of MRE 609 is “the result of assumptions about jury behavior and the effectiveness of limiting instructions that were accompanied by relatively little analysis or study.”

35. People v. Allen (Mich. 1988) “[W]e, therefore, in the words of the dissent, act not on the basis of studies, but on the “common-sense premise” that some prior convictions are more probative than others, that some are inherently more prejudicial, and that it is absurd to suggest that jurors will be able to avoid improper consideration of a defendant’s criminal character once it has become known to them.” -The Studies are merely relevant as SUPPORT, but are not the BASIS of the decision.