Liberation reconsidered: understanding why judges and juries disagree about guilt.

• Author: Farrell, Amy

1. INTRODUCTION

   The constitutional right to a jury trial rests upon values in addition to the interest of accurate fact-finding. When, at the height of the due process revolution, the Supreme Court confronted the question of whether the United States Constitution required states to afford criminal defendants the right to a jury trial in a serious case, the Court did not base its ruling on the view that juries were more accurate fact-finders than judges. (1) Rather, as it noted in Duncan v. Louisiana, the constitutional right to a jury trial in a serious criminal case reflected

   a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. (2) The Court in Duncan found support for its view in empirical research on judge and jury decisionmaking. Responding to the objection that "juries are incapable of adequately understanding evidence or determining issues of fact, and that they are unpredictable, quixotic, and little better than a roll of dice" (3) the Court referenced Kalven and Zeisel's seminal study from The American Jury, stating:

   Yet, the most recent and exhaustive study of the jury in criminal cases concluded that juries do understand the evidence and come to sound conclusions in most of the cases presented to them and that when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed. (4) Analyzing survey responses from over 500 judges presiding over 3,000 criminal trials, Kalven and Zeisel concluded that when cases are close on the evidence, juries are "liberated" from the dictates of the law, and can--and do--give expression to extralegal values in arriving at verdicts. No other work of social science relating to jury behavior has been as widely cited or as approvingly referenced by courts. (5) Kalven and Zeisel's research has been cited in twenty-five different Supreme Court decisions (as well as more than 190 decisions of other courts) (6) as support for a proposition concerning the behavior of juries. These citations are a tribute to the eminence of the authors, and to the breadth and sweep of their empirical and analytic work, as well as to the mostly reassuring message that judges are bound by legal rules, but juries can and do make decisions that reflect the values and sentiment of the community, even when those decisions are in opposition to the law.

   Kalven and Zeisel drew their conclusions about why juries disagreed with judges entirely from survey responses from judges about their perceptions as to why juries arrived at a different conclusion than they would have in the same case. (7) No attempt was made to verify that the conclusions of the judge about why the jury arrived at its verdict were in fact correct. Additionally, research for The American Jury was conducted over fifty years ago at the dawn of the civil rights movement before the composition of police forces, judges, and juries began to reflect more accurately the race and gender of the general population. It was conducted before DNA analysis exposed the vulnerability of previously uncontestable convictions in serious cases. Their data also predated the constitutional revolution in how courts conduct criminal adjudication. (8) The demographics of defendants in felony courts have also changed substantially since the time of Kalven and Zeisel's study. (9) While more recent research on jury decisionmaking has generally supported the notion that the liberation hypothesis is "alive and well" in modern courts, (10) no studies have directly measured whether sentiments as reported by jurors explain judge-jury disagreements, and whether the effect of juror sentiment are most pronounced in cases where the evidence is close.

   Contemporary data from a four-city survey of criminal trials collected by the National Center for State Courts (NCSC) affords an opportunity to advance our understanding of judge-jury disagreement beyond Kalven and Zeisel's original findings. (11) Despite the dramatic changes in the American criminal justice system cited above, research using the NCSC data has found essentially the same rates of judge-jury disagreement as those identified by Kalven and Zeisel, (12) but important questions remain unanswered about the factors contributing to judge-jury disagreement about guilt. The NCSC data includes information from both jurors who decided a case and the judge who presided over the trial, which allows us to investigate whether, and to what extent, the jury's embrace of non-legal factors explains why judges and juries disagree about guilt in a modern context.

2. EXPLAINING JUDGE AND JURY DISAGREEMENT

   In The American Jury, Kalven and Zeisel reported that when judges and juries disagreed, juries were far more likely to be lenient than judges. The authors identified three types of disagreements between judge and jury: (a) disagreement as to whether the defendant was guilty of any of the crimes for which he was on trial (66% of all disagreements), (b) disagreements between the judge and jury as to whether the defendant was guilty of some of the crimes with which he was charged (17% of all disagreements), and (c) disagreements between judge and jury in which the jury hangs as to one or more of the charges against the defendant (17% of all disagreements). (13) Each disagreement was in the same direction: the jury was far more likely to be more lenient than the judge. Thus, in 87% of the disagreements about guilt or innocence, the jury was more lenient than the judge was, and in 79% of the disagreements arising from a hung jury, the jury was more lenient than the judge. (14)

   Relying solely upon the judge's written explanation for why the jury arrived at a verdict with which he disagreed, Kalven and Zeisel identified five different explanations for disagreement. They cited "evidence factors," "facts only the judge knew," "disparity of counsel," "jury sentiment about the individual defendant," and "jury sentiments about the law." (15) Weighting these factors, Kalven and Zeisel concluded that differing evaluations of the evidence accounted for 54% of all disagreements, sentiments about the law and the defendant for another 40%, and facts that only the judge knew and disparity of counsel the remaining 6%. (16) From these findings, they suggest that the combination of values and evidence explained a significant number of judge-jury disagreements. To understand the influence of these factors on jury decisions, they posited the "liberation hypothesis" (17)--that when the case was close on the evidence, the jury was "liberated" from the dictates of the law and could, and did, give expression to "sentiment" (18) in arriving at its verdict. (19)

   Kalven and Zeisel never stated explicitly that when judge and jury disagreed about guilt, the judge was factually correct and the jury in error. Rather, they employed metaphors that suggested this was the case. Thus, the judge's view of the case was a "baseline representing the law," (20) while the close cases in which the jury came to a different conclusion constituted a "war with the law," albeit a "modest and subtle" one. (21) They asserted, "[W]hen the jury reaches a different decision from the judge on the same evidence, it does so not because it is a sloppy or inaccurate finder of facts, but because it gives expression to values which fall outside the official rules." (22) This conclusion reflected the popularly understood genius of the jury system that tempers the rigors of the law with the common sense of the community.

   Until recently, attempts to replicate Kalven and Zeisel's findings in criminal trial decisions have been quite limited. (23) Most studies investigating the factors that inform judge and jury verdicts have relied upon comparisons of judge and jury verdicts in small samples of cases, interviews with decisionmakers about previous cases and experimental designs employing mock juries. These methodologies have a number of strengths and limitations. Judge-jury verdict comparisons from actual criminal trials necessarily involve the judge rendering a hypothetical judgment while the jury renders a real one. It is possible that judges will be less meticulous in evaluating the evidence when it is not their responsibility to decide a case, and that what the jury has already done may influence the verdict that judges indicate they would render. (24) However, reasoning from other empirical approaches presents even greater challenges. Archival studies such as post-judgment interviews with judges and juries about their decisionmaking processes often do not collect data from judges and juries in the same cases. (25) Simulations and mock jury experiments also pose challenges since, no matter how realistic the presentation, the participants are aware that their decisions have no genuine consequences. (26) Despite these challenges, research since The American Jury has advanced our understanding of the effect of evidentiary and extra-evidentiary factors on jury verdicts.

   1. THE ROLE OF EXTRA-EVIDENTIARY FACTORS ON JURY VERDICTS

      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. (27) Further analysis of the same set of sexual assault cases suggests that when liberation based on juror sentiment did occur, it was...