Article shared from The Persuasive Litigator, By Dr. Ken Broda-Bahm:
Quoted from Dr. Ken Broda-Bahm, “There is the solemn moment when the jury returns to the courtroom, delivers the verdict, and then everyone is done. But often, it is with one question left hanging in the air: Why? Whether you’ve won or lost, or something in-between, there is a very human drive to know the jury’s reasoning. How did they react to the stories? Did they buy the key witness? Could they follow the instructions? What evidence turned out to be decisive to them? When trial truly ends with a simple verdict and not a full exploration of the jury’s reasons, it can feel a little incomplete: a whimper and not a bang.”
The Formal Route: Should Courts Ask for Verdict Justification?
This is what Jean Dudzinski proposes in the article. In both criminal and civil cases, verdicts for either side should be accompanied by the jury’s collective response to a series of questions, designed by counsel and the court, on the jury’s general reasons for their decision. So, not just the “what” of the verdict but the “why” as well. Drawing upon the social science literature, she notes that citizen juries tend to be quite effective — more so then their judge-led continental counterparts, where judges predictably tend to dominate. Yet American citizen juries still suffer in the public eye when the verdicts are not seen as legitimate. She makes the case that verdict justification could add legitimacy by putting more focus on the reasons and not just the result. The questions could be narrowly framed in order to get at rationale without throwing open the doors on the privacy of the deliberation process.
Whether this would or wouldn’t have the effect of improving juries in the public eye (and responses to juror media interviews after the George Zimmerman and Casey Anthony trials give reason to doubt), I can still see some clear benefits to the persuasive process of trial: more accountability and a better understanding of how the jury understands its verdict.
Thinking about how something like this might come about, it is plausible that judges could use their broad discretion to try it out. Since judges will sometimes allow jurors to make a statement on the record after a case, it seems like they could choose to invite, not necessarily require, the jury to accompany a verdict with a paragraph or two explaining why.
Of course, there are some limitations on the likelihood of verdict justification as a formal reform. Judges, and lawyers too, tend to be very conservative at the procedural level, and extremely protective of juror’s rights and the private sphere surrounding deliberations. For that reason, it is a good thing there are ways of putting the spirit of it into practice without actual reform.
The Informal Route: How We Already Are, or Should Be, Asking for Verdict Justification
Of course, asking for the “why” and not just the “what” is an essential principle that runs through the methodology of the mock trial. After asking for a leaning during case presentation, we always follow that up with a request for the mock juror’s reason for that leaning. And once the case reaches deliberation stage, we will always provide jurors with an orientation letting them know we care more about the reasons for their decisions than we care about the decisions themselves – “so, even if you find you all agree on a point, take a few moments to talk about why you feel that way.”
But the real opportunity to dive into an actual jury’s verdict justification is post-trial. As often as the local law or the judge allows, the former jurors should be contacted and interviewed. It works best when these individuals are:
- Interviewed individually so groupthink doesn’t influence their answers
- Interviewed by a perceived neutral (not one of the trial attorneys) so they don’t shade their answers based on what they think the interviewer wants to hear, or avoid topics where they believe they could be challenged on the facts
Read the full article by Dr. Ken Broda-Bahm and find out what happens when they conduct post-trial interviews in this fashion!
Dr. Ken Broda-Baham has some fantastic articles on his website, that of which we love to share. Please be sure to give him the credit and check out some more of his most recent articles here.