The deliberative lottery: a thought experiment in jury reform.

• Author: Lichtman, Douglas Gary

Douglas Gary Lichtman*

1. Introduction 133

2. Challenging "Absolute" Consensus 136

   1. Subjective Questions 136

   2. Historical Accident 137

   3. Luck of the Draw 139

3. The Deliberative Lottery 140

   1. Large, Representative Panels 140

      1. Too Small 141

      2. Fear of Dissent 142

      3. 7he Lottery 143

   2. Deliberative Panels 144

      1. Deliberation Within the Jury 146

      2. Disagreement at the Outset 148

   3. The Nature of Jury Deliberations 151

   4. The Stop Condition 153

4. Objections 154

   1. The Deliberative Lottery is Too Random 154

   2. The Deliberative Lottery is Too Expensive 155

   3. Legitimacy 155

5. A Democratic Vision 157

   Appendix 159

   1. Determining the Accuracy of a Random Sample 159

   2. Sampling the Sample -- The Small Jury 160

1. INTRODUCTION

   In the context of electoral voting, scholars long ago recognized the tension between obeying majority will and respecting minority voice.(1) Jonathan Still,(2) Lani Guinier,(3) and Akhil Amar(4) each have argued that one or another voting scheme better balances these competing aims. Their ideas, and related discussions of cumulative,(5) limited,(6) single-transferable,(7) and lottery(8) voting, have fueled the debate over the real meaning of "one person, one vote" in modem, multi-cultural America.

   For all the attention that has been given to these issues in the electoral context, however, comparatively little attention has been paid to these same concerns as they arise in the context of the modem criminal jury. Indeed, looking exclusively at the jury reform literature, one would imagine that majority/minority tensions can only be resolved by disproportionately privileging the minority (e.g., the unanimity rule) or simply enshrining majority views (e.g., California's proposed 10-to-2 decision rule(9)). There are no jury-voting proposals akin to cumulative, limited, single-transferable, or lottery voting. Jury reformers tacitly have assumed that unbalanced, disproportionate voting rules are the only viable option.

   Before considering what a more proportional jury voting scheme might look like, I first should articulate more explicitly where the traditional alternatives fall short. Under the twelve-person, unanimous-rule structure, there are only two mathematically significant outcomes: a tally of 12-to-0 and a tally of 0-to- 12. The remaining eleven possibilities are deemed indistinguishable. Each results in an equally "hung" jury. A similar point can be made with regard to any super-majority or majority decision rule. A 10-to-2 decisional standard, for example, fails to distinguish between seven "hung jury" outcomes, three "acquittal" votes, and three "conviction" tallies.(10) Likewise, a 9-to-3 standard conflates four "convication," four "acquittal," and five "hung jury" votes.

   These patterns lead to two troubling results. First, marginal votes go uncounted. A unanimous-rule jury split 11-to-1 in favor of conviction is considered to be no different from one split 7-to-5 in favor or even one split 3-to-9 against. Meaningfully different tallies are treated in functionally equivalent ways -- marginal votes (the four votes that moved the jury from 11-to-1 to 7-to-5 and the eight that moved it all the way to 3-to-9) are simply ignored.

   Second, under traditional schemes, votes cast by individual jurors are given inappropriate weight. Some are overvalued. Pursuant to the unanimity rule, the single juror dissenting from an 11-to-1 jury wields the same power as five 7-to-5 jurors and nine 3-to-9 panelists. Others are correspondingly undervalued. The eleven jurors who comprise the majority on an 11-to-1 panel enjoy no greater influence than they did when they numbered but ten.

   A more proportional voting scheme would not only eliminate these intuitively unjust outcomes, but also would offer several advantages. First, if juror votes were accorded their proportional weight, juries could be made larger. A unanimous-rule jury must remain small because the addition of a thirteenth juror exponentially increases the odds of a hung jury.(11) If, however, that juror's vote were less powerful -- if she wielded proportional power, not veto power -- her addition would not be so threatening. We could make the jury larger and, hence, more representative.

   Second, a proportional structure would decrease the need for jury voir dire.(12) Peremptory challenges(13) and "for cause" strikes(14) are necessary evils, but only because current jury voting structures over-emphasize the dissenting juror. Were that juror's power limited to her proportional share -- restricted by her numeric insignificance, accorded additional weight based solely on the persuasiveness of her argument -- society would not need to filter its jury panels as aggressively.

   Third and finally, a proportional voting scheme would improve the nature and quality of jury deliberation. By valuing every juror Is vote, such a scheme grants implicit value to every juror's opinion. No juror can be costlessly ignored, outvoted, or marginalized by majority-viewpoint jurors. Under a proportional scheme, a growing majority always has strong incentives to engage dissenters in meaningful debate.

   Accounting for the above advantages to proportional voting, consider now the following hypothetical jury structure:

   Twenty-four jurors are randomly chosen from an unfiltered pool They are

   asked to listen to the evidence and then encouraged to vigorously debate

   its implications. After deliberation is complete, twelve members of this

   Large Jury are randomly chosen and seated in a second jury, what we will

   call the Small Jury. Immediately, those jurors are asked to vote as to

   their preferred verdict. If 10, 11, or 12 members of this Small Jury agree,

   their verdict is rendered. If not, the entire jury is declared hung.

   This structure, the Deliberative Lottery, is a proportional jury voting scheme. In the Large Jury, marginal votes matter. Convincing an additional juror to adopt a pro-conviction stance meaningfully increases the odds of ultimate conviction. A similar statement can be made with respect to the pro-acquittal position. No juror is given an absolute veto power, but nearly every juror has some probability ofinfluencing the ultimate verdict.(15) These are the critical elements that are missing under every other type of majority, super-majority, and unanimity rule.

   In the Sections that follow, I will first lay the groundwork for, then explore the implications of, the Deliberative Lottery. Section II confronts three significant obstacles to reform: The assumption that juries ought to render verdicts unanimously, the assumption that the unanimity requirement has a firm historical foundation, and the assumption that chance does not play a significant role in the current twelve-person, unanimous-rule system. Section III analyzes the Deliberative Lottery itself, using both mathematical and intuitive arguments to support my claims regarding jury size, diversity, and deliberation. Section IV anticipates and responds to potential criticisms of this two-tier structure. Finally, Section V considers the Deliberative Lottery as a political institution, suggesting that this unusual structure actually might make for a more democratic jury system.(16)

2. CHALLENGING "ABSOLUTE" CONSENSUS

   1. Subjective Questions

      If the questions posed to the modern criminal jury were purely objective,(17) much of the scholarly and political concern regarding the unanimity rule presumably would disappear. Fact-finders might reasonably be expected to find objective facts unanimously. Disagreement would suggest error and perhaps justify an entirely new trial with an entirely new jury.(18)

      Many of the questions facing the modern jury, however, are at least partially subjective. Disregarding the policy implications that undoubtedly impinge on jury deliberation regarding capital punishment, and the inherent subjectivity of the "reasonable doubt" standard itself,(19) juries are asked to render verdicts that turn on such imprecise terms as "duress," "extreme indifference," "recklessness," and the like.(20) Presented with such subjective questions, it is not surprising that reasonable minds sometimes disagree.(21)

   2. Historical Accident

      Even if less stringent decision rules seem plausible, many object to their consideration based on a combined historical and constitutional objection. Unanimity has been the conventional practice for centuries; surely history provides some common-sense justification that the Constitution implicitly makes binding.(22)

      On the constitutional issue, the Supreme Court held in Apodaca v. Oregon(23) that unanimity is not of constitutional stature:

      [T]he purpose of trial by jury is to prevent oppression by the Government by

      providing a safeguard against the corrupt or overzealous prosecutor and

      against the compliant, biased, or eccentric judge. Given this purpose, the

      essential feature of a jury lies in the interposition between the accused and

      his accuser of the commonsense judgment of a group of laymen .... A

      requirement of unanimity, however, does not materially contribute to the

      exercise of this commonsense judgment.(24)

      Moreover, historical arguments, far from bolstering the case for unanimity, reveal the requirement to be something of a historical accident. As the Apodaca Court explained:

      The origins of the unanimity rule are shrouded in obscurity .... One theory

      is that unanimity developed to compensate for the lack of other rules

      insuring a defendant received a fair trial. A second theory is that unanimity

      arose out of the practice in the ancient mode of trial by compurgation of

      adding to the original number of 12 compurgators until one party had 12

      compurgators supporting his position .... A third possibility is that

      unanimity developed because early juries, unlike juries today, personally had

      knowledge of the facts of a case. the medieval mind assumed there could be

      only one correct view of the facts ....(25)

      My purpose here is neither to support nor critique the Court's analysis...