Jury Voting

In my earlier post, I suggest that Adrian's insight about trade-offs between voting rules and voting populations might be the key to beneficial jury reform. Let me here make things concrete by proposing a hypothetical jury structure that trade away the unaninamity rule in exchange for a jury of larger size, along the way significantly solving the problem of marginal jury votes.

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 might 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, what I have elsewhere called 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 of influencing the ultimate verdict. This is the critical element that is missing from a pure unanimity system.

One payoff is that, because juror votes are under this system 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. 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.

A second payoff is that this sort of a proportional structure would decrease the need for jury voir dire. Peremptory challenges and "for cause" strikes are necessary evils, but only because current jury voting structures over-emphasize the dissenting juror. Were a dissenting 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 so aggressively.

Third and finally, a proportional voting scheme would improve the nature and quality of jury deliberation. By valuing every juror's 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, again because one more vote in the Large Jury actually might matter if that voter is randomly selected for the Small Jury.

In summary, then, my argument here complements Adrian's: he notes the trade-off between voting rule and voting population; my proposal is to use that relationship to trade away from voting rules we might not like.

(For more on this, check out "The Deliberative Lottery: A Thought Experiment in Jury Reform," 34 American Criminal Law Review 133.)