Summary
Proposal to change the rule of unanimity in jury decisions to a one-way 10 to 2 rule, with less than 10 resulting in acquittal
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Extract
Ten reasonable men.
I. INTRODUCTION
A little over five percent of criminal trial juries in the United States are unable to reach unanimous verdicts.(1) This statistic is widely recognized and has received considerable attention both in academia and in the public at large, but the attention is sorely misdirected. The focal inquiry usually is not whether the incidence of hung juries is acceptable but whether the rate is increasing. The tacit premise is that five percent is an immovable baseline, and the illation is that the system is working as it should if the number does not increase too dramatically.(2) What this means is that the prospect of several thousand criminal defendants each year hanging in limbo,(3) and in many cases set free for dearth of prosecutorial resources (in other cases, retried and convicted despite the existence of substantial doubt), is perfectly acceptable so long as the rate is constant. It is not acceptable, and it is a solvable problem. Hung juries are a product of the two-way unanimity voting rule governing petit juries in almost all American jurisdictions.(4) (By two-way I mean symmetrical: unanimous to convict, unanimous to acquit. Strictly speaking, it is the symmetry, not the voting rule, that ensures juries will deadlock; any two-way voting rule, even simple majority, would allow for a hung jury as long as the panel comprises an even number of jurors. But of course, adding unanimity to the mix increases the likelihood manifold, since 22 of 24 possible vote distributions--11:1 guilty, 10:2 guilty, ... 11:1 not guilty--constitute deadlocks.) The general willingness to accept hung juries as a fact of life issues from a general acceptance of the two-way unanimity rule as a necessary feature of our justice system. The question that interests me is, why this widespread, reflexive acceptance? It seems there are two broad sets of reasons, linked to two distinct conceptions of the criminal trial jury: the jury as a political institution, which, depending on one's inclination, can mean either a proxy legislature or a flywheel for the justice system; and the jury as an evidentiary device, our chosen method of finding out what happened in a given case and making sure no one is wrongfully punished. Both models are rooted deep in our collective consciousness, and the received wisdom is that both models depend for their proper functioning on unanimous verdicts. A close examination shows that neither model in fact requires unanimity. Close examination, however, is rare, largely because most examinations of the criminal trial jury combine the two models (by juxtaposition or, more commonly, by conflation), with the result that critical analysis proceeds by half-steps and sidesteps, and the understanding that is very badly needed is lost in the shuffle. The trial jury as a political organ serves different ends than does the jury as a factfinding machine, which does not mean that the two are at cross purposes but does mean that critical evaluation of the jury should be more focused (more compartmentalized, to borrow an abused term) than it is. As it is, the most apt and most important questions on the subject are more likely to be deflected than to be answered squarely. Why should a man whom 11 of 12 persons think is a criminal walk free? Because the Criminal justice system should not be a steamroller. Is it really better for the one to steamroll the 11? If need be--the majority should be required to pay attention to the minority. Might not the attention thus paid come at a price, given the existing incentive structure? Unthinkable--all people are equal. What this last response has to do with the inquiry at hand is anyone's guess, and yet it almost invariably finds its way into the discourse, shedding more heat than light, as such responses always do. To be sure, such analytical carelessness is hardly reserved to the subject of the jury; it infects much of our civic life. Consider for instance a metropolitan police department whose performance cannot be evaluated effectively without answers to at least two elementary questions: (a) how well are the cops catching the bad guys?; and (b) how faithfully are they protecting individuals' rights? It is plainly evident that neither line of inquiry standing alone will yield a satisfactory picture of the department's performance. It is equally evident that the two questions are distinct and must be answered separately; an answer to (a), whatever its independent significance, is inappropriate in response to (b)--inapprop...See the full content of this document
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