Stories from the jury room: How jurors use narrative to process evidence

• Date: 02 November 2009
• DOI: https://doi.org/10.1108/S1059-4337(2009)0000049005
• Pages: 25-56
• Published date: 02 November 2009
• Author: Robin H. Conley,John M. Conley

STORIES FROM THE JURY ROOM:

HOW JURORS USE NARRATIVE

TO PROCESS EVIDENCE

Robin H. Conley and John M. Conley

ABSTRACT

This chapter analyzes the ways in which jurors use everyday storytelling

techniques in their deliberations. It begins by reviewing the literature on

how jurors receive and process evidence, emphasizing narrative and

storytelling. It then presents some new, qualitative linguistic data drawn

from actual jury deliberations, which shed light on jurors’ standards of

evidence and proof, as well as on the persuasive tactics they use in dealing

with each other. Although these data are limited, they provide an

interesting basis for assessing existing ideas about jurors evidence-

processing and thinking more broadly about the strengths and weaknesses

of the jury system.

1. INTRODUCTION

As we consider the past and the present of the American trial and speculate

about its future, there is one central constant: the jury. Whatever else may

change, the muscular presence of the Seventh Amendment (abetted by state

constitutional provisions that are often even stronger) continues to shelter

Studies in Law, Politics, and Society, Volume 49, 25–56

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2009)0000049005

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the jury in the face of demands for efficiency, accountability, and rationality.

In view of this, it is remarkable that, more than 200 years after the adoption

of the Seventh Amendment, we still know very little about what actually

happens in the jury room.

In 1981 Lance Bennett and Martha Feldman published Reconstructing

Reality in the Courtroom, a compelling account of the stories that are told to

jurors in the courtroom. In this chapter, we present an account of the stories

told by jurors in the jury room. Using published excerpts of deliberations in

a 1986 criminal case, some recently published partial transcripts of jury

deliberations in several civil cases, and a previously unpublished linguistic

transcript of the complete deliberations in a single civil case, we analyze the

ways in which jurors receive, discuss, and evaluate evidence. The over-

arching point is that jurors use everyday conversational resources in their

efforts to process the often-conflicting accounts that they hear.

As Bennett and Feldman demonstrated, lawyers try to frame their

evidence so as to comport with the conventions of everyday storytelling, or

narrative. Our data suggest that jurors attend to those same conventions as

they co-produce the master narrative that will become the basis for the

verdict. Judges routinely instruct jurors to use their common sense and

everyday experience in evaluating evidence. On a linguistic level, it is clear

that they are doing so. This is consistent with the observation that Harold

Garfinkel (1967, p. 112) made 40 years ago after interviewing jurors about

their deliberations: ‘‘The rules of everyday life, as well the rules of the

official line, are simultaneously entertained.’’

It is also consistent with the conclusion reached by Nancy Pennington and

Reid Hastie (1993), on the basis of experimental social psychology, that

individual jurors ‘‘impose a narrative story organization on evidence’’ (ibid.,

p. 194) and that ‘‘the story the juror constructs determines the juror’s

decision’’ (ibid., p. 193). In their ‘‘story model,’’ a juror composes different

narratives based on the evidence and then tests them against one another to

decide upon a final version. The story that displays the greatest coverage of

the evidence and is most coherent is accepted as the best explanation and in

turn becomes the basis for the juror’s decision.

A further piece of consistent evidence about the role of narrative in legal

decision-making is Douglas Maynard’s (1990) study of narrative structure in

plea bargaining discussions among judges, prosecutors, and defense lawyers.

Analyzing tape recordings of those discussions, Maynard (1990, p. 66)

identified such ‘‘narrative components’’ as background segments, action

reports, and reaction reports, and documented some of the ways in which,

through narrative, ‘‘participants bring to life such factors as the law,

ROBIN H. CONLEY AND JOHN M. CONLEY26

organizational ‘roles’, and even the identity of a defendant.’’ He concluded

(ibid., p. 66) that ‘‘[i]t is through narrative that actors make decisions and

effect ‘outcomes’.’’

1.1. Listening to Real Jurors

The effort to get inside the jury room for research purposes got off to a very

bad start. In the mid-1950s, during the research that led to their famous

book, The American Jury, Harry Kalven and Hans Zeisel recorded five

actual civil jury deliberations in Wichita, Kansas, with the consent of the

judge and the lawyers but without informing the jurors. When this became

public in 1955, the Attorney General of the United States censured them, a

Senate committee conducted hearings, and Congress and a majority of

states passed legislation forbidding ‘‘jury-tapping’’ for any purpose,

including research (Kalven & Zeisel, 1966, pp. vi–vii). The Wichita data

disappeared forever, and no researcher has been permitted back into a jury

room (Diamond, 2006, p. 723) – until now.

There is at least one partial exception to that generalization. In 1986, the

PBS Frontline series broadcast a one-hour program entitled ‘‘Inside the Jury

Room,’’ which was described as a recorded broadcast of the actual

deliberations in a Wisconsin criminal trial. Sometime thereafter, the

sociologists and conversation analysts Douglas Maynard and John Manzo

obtained from the producer a tape of ‘‘almost the entire’’ 2.5-hour original

deliberation (Maynard & Manzo, 1993, p. 176). They analyzed various

linguistic and sociological aspects of the deliberations and published their

findings in several articles addressed to various law and social science

audiences (Maynard & Manzo, 1993;Manzo, 1993, 1994, 1996). Manzo’s

individual publications also analyzed a videotaped deliberation from an

otherwise unidentified ‘‘civil case, a dispute over a home-building contract’’

(Manzo, 1993, p. 272). These various publications include extensive

transcript excerpts; although not all are of the sort that conversation

analysts and linguists use for their most technical analyses, they are highly

detailed. Despite their unique access to actual jury deliberations, it appears

that Maynard and Manzo’s work has never been cited in the legal literature.

In Section 2.1 of this article we resurrect this important work, in particular

those aspects of it that bear on jurors’ narrative practices.

In 1994, a committee appointed by the Arizona Supreme Court issued a

report that advocated a number of significant changes in jury trial procedure

(Arizona Supreme Court, 1994). The most controversial was a proposal to

How Jurors Use Narrative to Process Evidence 27