One Problem Afflicting the Heterogeneous Jury

-- By JosephLu - 23 Apr 2009

The problem today

Tracking jury composition from then to now would reveal a trend toward more diversity in composition. For example—to take just one component of diversity—the jury box may not be monopolized by white jurors, particularly in cases whose verdicts turn on the negotiation and maybe even neutralization of racial stereotypes that would otherwise pollute the resolution of the case on its merits. Even with more diverse juries, however, jury verdicts now still do not reflect a truly egalitarian decision-making process. As this paper will discuss, one “polluting” factor is jurors’ responses, conscious or unconscious, to certain personal characteristics in the jury room. Specifically, jurors’ statuses in society influence jury interaction in a way that they undermine the ideal of an egalitarian decision-making process—to the extent that this ideal is attainable, given other assumptions. To expand on the previous example, even if a jury is equally represented by the five American categories of race, the white jurors will still exert a disproportionate share of decision-making power because their status will affect jury interaction to the detriment of the other “lower-status” jurors’ input.

• The entire essay rests on this proposition, for which you offer no basis whatever. Is it supposed to be self-evident? One of the questions I always ask people who've served on juries, whether I met them professionally in the courts or socially, is about the dynamics of deliberation. I've never heard anyone report this phenomenon either about themselves or about other people. As this isn't a deference culture, I'm not terribly surprised about that. So I'm interested in whatever sources you have for your contention. But in the meantime, the essay can't really succeed in carrying at least this reader along, because I'm being asked to believe something that isn't credible and I'm not given any reason to do so.

What is status?

A person’s status in society seems to be primarily determined by his/her proximity to social centers of power. This proximity is reinforced by his/her values, norms, and legitimacy as perceived by the rest of society. Often, these values and norms are the “mainstream” ones in society—mainstream in part because they are the ones projected and reinforced by public figures and other people in positions of visible power. How certain demographics came to occupy the immediate peripheries of social centers of power, however, is a question outside the bounds of this paper. Whether these distributions are primarily the product of history, interest-group politics, or the media, a working definition of status will suffice for this paper.

• You haven't defined status. You haven't actually tried to define status. What you tried to do and then abandoned doing was describing the sources of status. Providing a definition, the task you say you've done and haven't started, might or might not be useful.

While this definition of status may be relevant for many social contexts, the way that status, as defined here, influences jury deliberations has specific consequences for the American legal system. Some indexes that reflect people’s proximities to social centers of power are race, gender, age, religion, occupation, and educational attainment. It is jurors’ perceptions of these external manifestations of status that distort juries’ purportedly egalitarian decision-making processes.

• Aside from the reexpression of the previous unsupported assertion, what's new here? Did it matter how one defined "status" or described its sources? Your proper subject appears to be deference. Your assertion that it exists might be easier to support if you showed it functioned somewhere else. For that purpose, you might indeed want to state what it is.

Still not egalitarian

Against the ideal of maintaining a protected judicial space in which jurors can come together to deliberate as equals, the equitable necessity of juries diverse in composition leads paradoxically to the inevitable fact of the jury as a small, heterogeneous group. And it seems that this condition of the small, heterogeneous group makes juries especially vulnerable to the problem of monopoly by status. It is the simple fact of heterogeneity—that there are any status differentials at all—that allows the monopoly by status problem to penetrate juries. The presence and participation of even an extreme minority of higher-status jurors would possibly bias the decision-making process in favor of these jurors’ thoughts, values, and investments. Perhaps ideally but almost certainly impossibly, a higher number of “lower-status” jurors could be brought in to offset the effects of higher status, but any attempt to quantify these effects in order to determine how many lower-status jurors to bring in would be misguided.

The process of submission

Jurors, deliberating under the condition of heterogeneity, experience a power disparity in which lower-status jurors unconsciously submit to higher-status jurors possibly because (1) discriminatory interactions among people of different statuses outside of the jury context carry into jury deliberations, and (2) lower-status jurors project particular stereotypes onto higher-status jurors. The second proposition seems especially interesting because the perceptions and expectations that arise from these stereotypes directly affect the level of participation by lower-status jurors. And it is this component of jury membership—participation—that is primarily affected by status differentials, and whose distortion contributes significantly to a still inegalitarian American jury.

• Now we have a number of more specific propositions, each assuming facts about juror behavior for which no evidence whatever is offered. I would have thought, indeed, that such evidence didn't exist. I'm not aware of any substantial literature on the unconscious behavior of jurors. Indeed, I don't know how, given the constraints, one could assemble the data necessary to have a literature. So I'm particularly eager to see what you've come up with in the course of your research.

In the jury context, lower-status jurors’ perceptions and expectations of higher-status jurors bear on their perceived general competence, which translates, in some minds, to more informed and ultimately more authoritative input in deliberations. Lower-status jurors, then, “respect” the thoughts of higher-status jurors to the extent that lower-status jurors silence themselves and defer to the more active participation of higher-status jurors.

• Here's where, if you had the slightest shred of evidence to support the proposition that holds the rest of this up, you'd have put it.

Some perceptions and expectations are drawn from general discriminatory practices beyond the jury room that reinforce the unfounded notion pinning the white, Christian, middle-class man at the crown of American society. In addition to these perceptions, there may even be the more specific impression that status is an achieved condition, so it would be “natural” to infer from this achievement a set of generalized skills, intelligence, and experience that would set higher-status jurors apart from the rest. Whatever their sources, these stereotypes minimize lower-status jurors’ participation in deliberations and carve out a dangerous space for monopoly by the most powerful and vested members of an inegalitarian society.

• Now we are in the stratosphere. From no evidence, we have generalized our way to an overall theory.

Possible alternatives

There are possible alternatives in jury procedures that may soften the paradox of the diversely composed jury disabled by its own heterogeneity and inability to negotiate status differentials. If current orientation instructions do not work (“No juror should dominate the discussion; “No juror should remain quiet and leave the speaking to others”; “Everyone should participate”), then maybe just reminding jurors that all members are equal is not enough. Maybe the instruction should be more targeted, focusing not on every juror’s equally deserved voice, but on every juror’s unique potential to contribute to jury deliberations: Members of typically marginalized groups have something unique and valuable to contribute to discussion. This way, lower-status jurors might feel encouraged to overcome personal biases about the superiority of higher-class jurors in order to ultimately contribute equal voices.

More generally, maybe there should be more formal guidelines to ensure that everyone participates in the deliberation process. Even allowing jurors to take notes and ask questions in the courtroom, giving jurors notebooks of evidence and videotapes of testimony, or presenting more detailed verdict instructions may vest lower-status jurors with enough confidence to overcome their silence.

• Or possibly not. Perhaps these mysteriously deferential low-status jurors would be intimidated by entering into arguments based on paper and pencil and videotape and more detailed instructions with high-status symbol manipulators who would run rings around them. Or maybe not that either. Without data, making things up is easy and deciding which made-up stories about the way things work have truth in them is impossible.

• Two questions seem to me posed by this draft that are worthy of further consideration. First, what ideas, assumptions and commitments caused you in your editorial review of this essay—from planning to outlining to execution—to ignore so completely the reader's predictable desire to know where you came up with this stuff? Second, whether there is significant introspective evidence at stake here: have you every served on a jury and to whom did you defer or from whom did you successfully seek deference?