PrawfsBlawg regular, Ethan Lieb, guest-blogging at Freakonomics, part of the New York Times group of opinion blogs, takes another sacred cow and tips it over. 

The unanimity of a jury verdict is one of those things that we all take for granted, assuming that it’s a critical part of the criminal justice process.  I’ve never before considered why we require a unanimous verdict, or whether the sky would fall if we didn’t.

Before my brethren rain down on me with the obvious, consider that yesterday’s hung jury could have been an acquittal, but for this requirement.  Sure, we love the unanimous verdict when there’s one holdout that stops the other 11 from proclaiming the defendant guilty within 10 minutes after the lunch order arrives, but what of the 11 to 1 to acquit?  Unanimity turns that into a hung jury rather than an outright acquittal. 

Consider Ethan’s top-ten list of reasons why unanimity isn’t all it’s cracked up to be.  He’s not Letterman, but then who is?

Here are a few facts that make unanimity a non-obvious choice for juror decision-making.

1) We don’t require unanimity for any other important decision in our pluralistic polity. Our Supreme Court doesn’t decide by unanimity and neither do our legislators.

2) No other modern country (save Canada and a few jurisdictions in Australia) requires it.

3) We require unanimity to acquit as well as convict, so the idea that it contributes to protecting defendants is not fully accurate.

4) The symmetrical unanimity requirement contributes to inefficiency by giving us hung verdicts more than necessary.

5) Our juries have gotten more diverse as we’ve made it harder to get out of service and as we’ve grown more inclusive in our political system. With that diversity, majoritarianism seems more appropriate.

6) Empirical evidence tends to support the view that verdicts don’t change all that much when you change the decision rule. So the idea that unanimity contributes to certainty is probably overblown.

7) There is also empirical evidence suggesting that people assigned a unanimous decision rule will often agree to decide by supermajority (albeit unanimously) — meaning that in such cases, there is no difference between the two rules, except that some jurors agree to pretend that they agree with a verdict from which, in fact, they may strongly dissent.

8) We all know that many people are willing to falsify their preferences by changing their votes to agree with the majority; the incentives for doing so are especially high when one is a holdout juror being berated by other jurors because everyone wants to get home faster.

9) We don’t have such stringent unanimity rules in the context of the civil jury or courts martial, yet both those systems are respected and deemed legitimate by the public. Moreover, the few states that have experimented with relaxed jury-decision rules for the criminal jury — Oregon and Louisiana — do not suffer especial deficits in legitimacy.

10) Unanimity is often an illusion. Suppose a jury hangs, leading to a retrial. The second jury empanelled to try the defendant then convicts unanimously. Despite this second “unanimous” verdict, the truth is that, of a total of 24 jurors who heard the evidence, fewer than 24 were persuaded to convict. Indeed, it’s possible in theory that only thirteen — a bare majority — were persuaded, if in the first trial the holdout favored conviction, not acquittal.

Now this list doesn’t quite make me want to take up arms for a less than unanimous jury, but does raise thoughts that the unanimity requirement may be little more than one of the those quirky rules that someone came up with in the early days that have since become a bedrock principle, except that it doesn’t really have any particularly good reason to be chiseled in stone.

It’s days like this that I miss Anne Reed at Deliberations the most.  She would explain to me why this is all wrong.  Until Anne returns from her stint in Beijing as beach volleyball star under her nom de guerre, Misty May somebody, I’ll just have to ponder Ethan’s challenge.