I have been called for jury duty, and have been told I am likely to be selected to hear one or more criminal cases. Having talked with several friends who have served on juries, I am worried about the possibility that I will be on a sharply divided jury. I would not like being in that situation, and I am especially worried about three things that might come up.
One problem arises when the judge instructs the jury in such a way that it can find the defendant guilty or not guilty of diverse, more and less serious crimes. Suppose, for example, a man shoots and gravely wounds his wife and she seems at first to recover but then dies as the result of an infection that probably resulted from the wound. The jury might be instructed that, depending on its judgment regarding the facts, it could find the man either innocent or else guilty of murder or of assault with a deadly weapon. Suppose everyone on the jury agrees that the man shot his wife, but some think it was murder and others that it was assault with a deadly weapon; or suppose one or two jurors think he did not shoot his wife but the rest think he did and it was murder. May the jury compromise on assault with a deadly weapon in either or both of those cases?
Another problem comes up when two or more defendants accused of a crime such as robbery are on trial, charged with, say, not only robbery but assault, carrying concealed weapons, and so forth. Some jurors might wish to convict all the defendants on all the charges, while others might think one or more innocent on at least some charges. No doubt discussion sometimes leads people to change their minds so that a consensus is reached. But, if that does not happen, is it wrong to compromise to reach a verdict?
I have still another problem. What if the law and the facts seem to require a morally unacceptable verdict? For example, suppose someone peacefully demonstrating outside an abortion clinic technically violates the law. May a juror who believes the law wrong hold out for an acquittal?
This question calls for the derivation of norms for decision making by jurors. In view of their responsibilities, jurors seldom if ever are morally free to compromise. However, if the judge’s instructions allowed jurors who believed a defendant guilty of a crime to vote truthfully to acquit him or her of it, jurors who believed all the conditions for both offenses were fulfilled could vote to acquit the defendant of the more serious crime to reach a verdict on the less serious one. However, jurors may never vote to convict any defendant of anything unless convinced beyond a reasonable doubt that he or she is guilty, and should not be a party to any compromise in which other jurors would vote for a conviction without that assurance of guilt. Finally, if convinced that the defendant violated the law but that the law is unjust, a juror ought to refuse to vote for either conviction or acquittal.
You are right to think ahead about your responsibilities as a juror, since the decisions of juries in criminal cases have a profound impact not only on defendants and their families but on society as a whole, including potential victims. The fundamental duty of jurors is to know and fulfill their specific responsibilities under the law. It is not to try, as some do, to bring about the result they happen to believe would be for the best—for example, convicting a defendant they think should be off the street or acquitting one whose punishment would be hard on his or her family.
You may be able to forestall or, at least, mitigate intractable disagreement with the other jurors by carefully fulfilling your responsibilities. So, before responding to your specific questions, I shall propose some norms for your jury duty.
When the jury is being selected to hear a particular case, you will be told something about it and asked various questions by the defense and prosecution lawyers and, perhaps, by the judge. Resist being influenced by the wish to be included in or excluded from the jury, and answer every question with complete honesty. If not confident you understand a question, ask to have it repeated and, if necessary, explained.
During the course of the trial, the judge probably will give the jury various instructions. Pay attention to those instructions and, again, ask that they be repeated and explained if necessary. Then, carefully follow the judge’s instructions. If you observe other members of the jury disobeying, do not quarrel with them, since that is hardly likely to be effective and might well impede the cooperation that will be necessary to reach a verdict. However, if you think the infraction is likely to affect the outcome, tell the bailiff you wish to speak with the judge, and tell the judge what is happening. If you cannot do that before the verdict is about to be announced, at least then you should state that you believe the outcome was affected by one or more jurors’ disregard of the judge’s instructions.418 This is not tattling; it is a strict duty.
As the trial proceeds, bear in mind that you ought to form your opinion on the basis of all the evidence and in conformity with the relevant law, regarding which the judge will instruct the jury only after both sides have presented their cases. Resist the tendency to form any firm opinion until the jury’s deliberation is about to begin. The appearance, courtroom behavior, and irrelevant personality and character traits of the defendant(s), witnesses, and lawyers are bound to affect your feelings. Take note of your favorable and unfavorable feelings, but do not let them distract you from the facts of the case and from the judge’s instructions about the law, or otherwise unduly influence your judgment on the issue or issues the jury is to decide. In initially forming your opinion, bear in mind that you may have overlooked something or erred in your reasoning, and keep an open mind.
When the jury’s deliberation begins, listen carefully to other jurors’ views and the reasons they offer for them. If what they say seems to you inconsistent with the evidence or the judge’s instructions, do not attribute bad motives to them. Also, avoid directly challenging them, for example, by saying they are wrong or have overlooked something or are guilty of faulty reasoning. Say you do not understand their view or cannot follow their argument, and ask for further explanation, or ask how they account for something you think they are overlooking. Similarly, if another juror manifests unreasonable grounds for a position you consider mistaken, rather than straightforwardly rejecting the grounds, express your puzzlement—for example, by saying you do not see how those considerations are relevant or are unconvinced that his or her underlying assumptions are sound. If one or more jurors seem so intent on a certain outcome that they are setting aside the responsibility to decide the case on the facts and the law, remind them of their basic duty and point out that the rule of law is safer than rule by individuals’ judgments about what would be a good outcome.
In first stating your own view, propose it tentatively. For example: “Unless I am missing something, it seems to me . . ..” If others disagree, ask them to point out what you have overlooked or where you have gone wrong in your reasoning, and listen carefully to what they say. If discussion makes it clear to you that your view is inadequate in some way, frankly tell the others that you are amending your view in that respect and what led to the change. If the jurors disagree about what was said in the courtroom or about the meaning and correct application of the judge’s instructions, do not argue; suggest gently but, if necessary, repeatedly that the jury request the judge’s help in resolving such issues.
If intractable disagreement with other jurors develops despite your effort to forestall it, remember that your responsibility is to decide the issue(s) on the basis of the law and the facts, in accord with the judge’s instructions. Bear in mind, particularly, that you should not vote to find a defendant guilty unless you believe the evidence establishes his or her guilt beyond reasonable doubt. To clarify the meaning of reasonable doubt, it will help to remember that this standard remains the same regardless of the seriousness of the crime of which a defendant is accused and its prospective punishment. If you are not sufficiently convinced of a defen~dant’s guilt to vote for a conviction leading to a sentence of life in prison, you should not vote for a conviction that would lead to any lesser punishment.
I turn now to the first case you describe—members of a jury agree that a man shot his wife but disagree on whether his crime was murder or assault with a deadly weapon. May jurors who think the crime was murder agree to a verdict of assault with a deadly weapon? Yes. The jury will vote on each issue separately. Any juror convinced that the evidence verifies beyond reasonable doubt that what the defendant did fulfilled all the conditions for both offenses can and, with a possible exception I shall explain, should vote that he is guilty of both, and any member convinced that he is not guilty of murder can and should vote accordingly. The result will be that the jury will both return the verdict that the defendant is guilty of assault with a deadly weapon and report its inability to agree about whether the defendant is guilty of murder.
But what if some of the jurors who are convinced that the defendant is not guilty of murder say they will refuse to convict him even of assault with a deadly weapon unless all the jurors agree to acquit him of murder? In voting to acquit, a juror ordinarily thereby verbally or nonverbally takes the position that the evidence does not show beyond reasonable doubt that the defendant is guilty of the crime as the law, explained by the judge, defines it. Assuming that is the meaning of a vote to acquit, a juror who believed the defendant guilty of murder yet voted to acquit him would lie. And, since lying is always wrong, that would be wrong.
Suppose, however, the judge somehow makes it clear that jurors convinced that the defendant is guilty of murder are free to vote to acquit him if doing so is necessary to reach a verdict on the assault charge? I doubt the judge will do that. But if he or she does, a vote to acquit of murder no longer will have to express a position on the relationship between what the defendant did and relevant law; it can simply be a means to get other jurors to vote in accord with their conviction that the defendant is guilty of assault. Then, if a juror is convinced that the defendant is guilty of murder, that the common good requires his conviction, and that he probably will never be convicted of murder, he or she should vote to acquit him of it to reach the verdict that he is guilty of assault with a deadly weapon.
Compromise on such a verdict is altogether morally unacceptable in the second case, where most members of a jury think the man was guilty of murder but one or two think he was innocent. If you believe he did not shoot his wife, it will be wrong to agree that he was guilty of assault, even if you fear that he might be convicted of murder if retried. For if you are convinced that the defendant should be acquitted, compromising and agreeing to convict him would be both untruthful and a grave injustice to him. If you are in a small minority or entirely isolated, you might be tempted to give in, especially if you also happen to believe that the defendant probably was guilty, or if you have antagonistic feelings toward the defendant and his counsel, and/or are anxious to end the deliberation. But such temptations must be resisted.
Moreover, though you might be able to agree to a verdict of assault with a deadly weapon if you believed the defendant guilty of murder, you could not do that as a compromise with jurors who believed him entirely innocent. Since no juror should vote against his or her best judgment so as to find a defendant guilty on a particular count, offering such a compromise would be leading the other jurors to violate their consciences, and agreeing to the compromise, if others proposed it, would be condoning the violation of conscience. Therefore, you should not propose or support such a compromise, and you should resist any attempt by another or others to bully you or anyone else into accepting it.
In cases in which two or more defendants are on trial together, the jury surely will be instructed to deliberate and decide about each individually. Still, jurors might be tempted to disregard the instructions and trade votes to convict one or more defendants (on one or more counts) in exchange for the acquittal of one or more other defendants (on one or more counts). Confronted with any such proposal, you should reject it firmly and, instead, apply the previously explained norms to each defendant individually. In other words, never vote to find anyone guilty of anything whatsoever unless convinced the evidence warrants that verdict with respect to him or her.
Suppose you are convinced justice requires a verdict inconsistent with the law and the facts? Since the verdict you vote for should truthfully reflect your conclusion about the facts in light of the relevant law, it would be dishonest to vote for the opposite verdict, even if you believed the law unjust.419 At the same time, putting yourself in the defendant’s place, you surely would find it unfair to vote to convict him or her of violating a law you considered unjust. Therefore, in such a case, you would be obliged to refuse to vote for either verdict, explain why, and accept the consequences. Such a problem, however, probably would be obviated by the pretrial questioning. For example, before concluding it, the judge might ask whether anyone has any other reason that might disqualify him or her from serving on that jury. Any question like that would require you to state your position with regard to the questionable law, and the judge would exclude you from the jury.
418. In some jurisdictions members of juries are held to such strict confidentiality regarding their communications with one another that they usually would be thought to violate their trust if they made public, or even reported to the judge, violations of his or her instructions. But such a duty surely cannot be absolute. A juror who observed a colleague threatening violence to induce another to change his or her position certainly would have a duty to make known this subversion of just process.
419. John Guinther, The Jury in America (New York: Facts on File Publications, 1988), 219–31, argues for the contrary position and cites several respected judges in support of it. But he fails to confront the ethical issue that so-called jury justice depends on jurors acting contrary to their undertaking to decide a case in accord with the facts and the law. Unless instructed otherwise, moreover, the judge’s interpretation of the law is binding on jurors.