Thursday, January 12, 2012

The Compliant Juror: Part VI

In Part IV of this series, I defined a compliant juror as one who voted guilty though the State had not proven guilt beyond a reasonable doubt. Also in Part IV, I provided what I believe to be incontrovertible evidence that jurors tend to be compliant.

In Parts I, II, and III of this series, I suggested that jurors tend to be compliant because people (who tend to be the primary constituent of juries) are loath to disobey authority. I relied on the work of Stanley Milgram to show how far most people will go rather than disobey an authority figure.

(In Milgram's experiments, the majority of subjects were willing to apply lethal electric shocks to an individual rather than disobey the authority figure.)

In Part V of this series, I suggested that jurors tend to be compliant also because of confirmation bias. People believe most defendants are guilty, and people tend to believe their government would not willfully prosecute someone who was clearly innocent. Jurors therefore tend to give more weight to the State's evidence than to the defense evidence or rebuttal.

(I realize as I write this summary that my Confirmation Bias hypothesis cannot explain juror surveys in which jurors self report that they voted guilty even though the evidence favored the defendant. Confirmation bias cannot therefore be the sole reason for juror compliance.)

In this post, I offer a third possible source of juror compliance: Self Interest.

In 1776, a busy year for personal and economic freedom, Adam Smith first published An Inquiry into the Nature and Causes of the Wealth of Nations. Smith argued that a free-market economy is superior to a State-controlled economy. Though both categories of economic systems are flawed, particularly when taken to the limit, I believe history has clearly proven Adam Smith to be correct.

Adam Smith turned out to be correct because his preferred economic system embraced, rather than outlawed, each individual's pursuit of his or her own self-interest. In a free market, those who produce something of value are free to sell it to those who want it. The transaction takes place only when both parties mutually agree on a fair price. Neither party can be forced (directly or indirectly by the State) to engage in a transaction against their wish or self-interest.

Smith recognized that when left to their own devices, both the seller and the buyer will pursue their own self interest. The seller will attempt to extract as high a price as possible for his product or service. The buyer will attempt to pay as little as possible. The two will agree to a transaction only when the price is low enough to accommodate the buyer's penny-pinching but high enough to allow the seller to make a profit.  The buyer is always free to forego the product or seek a different seller. The seller is always free to stop manufacturing his product or seek a different buyer.

While we seem to be frequently repulsed by the idea that (other) individuals actually pursue their own self-interest, it is a mistake to presume that people will not do so.

I argue that jurors can have a substantial self-interest in their jury verdict. I argue this is particularly so in emotionally charged cases such as child molestation, rape, murder, and other violent crimes. Jurors clearly cannot be sanctioned by the State in any fashion for their verdict, and in most cases there will be no public approval or disapproval to worry about. Every juror, though, will have to live with the consequence of his or her vote. For some jurors whose moral compass always points to "Don't Care", it won't be an issue. But most jurors (i.e. people) do care. Most jurors want to do what is right. Most jurors don't want to inflict harm upon the innocent. So most people are biased to vote guilty.

To help you understand, I relinquish for a moment the foreperson chair I occupied in my last jury deliberation. The defendant is charged with child molestation.

I suspect you are aware of the common belief that child molesters never stop. If the defendant did molest those children and you find him not guilty, other children will certainly be molested. Can you live with that?

Is it more important that the State cross every "t" and dot every "i", or is it more important that more innocent children not be molested?

This is not an academic game, now that you are sitting in a juror's chair. This is as real as it gets. We're talking about a real defendant and real children. If you don't feel a pit in your stomach, I'm not making my point.

Are you really going to insist on proof beyond a reasonable doubt? Are you going to ignore the young victims who testified he did it? Why would they say such things if it didn't happen?

How are you going to feel if that person walks free because of you? If he molests again, as he is certain to do if he did it before, won't you be partially responsible?

Won't you?

Will it be sufficient comfort to you that you only followed your jury instructions, that you stood by your oath? The State presented some evidence of guilt, but they always present some evidence of guilt. Do you feel so strongly that evidence did not constitute proof beyond a reasonable doubt that you are willing to risk putting a child molester back on the street?

You say you feel that strongly about your oath. Sleep tightly, then. And make sure you never read the local papers. You might find a story you never want to know about.

I'll take possession of the foreperson chair once again. Thank you for the respite.

Some jury members, however, did talk about what would happen if he were acquitted. As foreperson, I attempted to limit that discussion. I reminded them that we were supposed to base our decision only on the facts of the case, nothing more. During one of our four trips back before the judge, I raised that very issue. 

Were we prohibited from discussing the possible consequences of conviction? Answer: yes.

Were we prohibited from discussing the possible consequences of acquittal? Answer: no.

I was dumbstruck, and I believe still that the judge was wrong in his ruling. I have no doubt, however, that jurors are more concerned (particularly in emotionally charged cases) about the consequences of releasing a guilty defendant than they are about depriving a defendant of his constitutional guarantees. The first mistake is palpable and stomach churning. The second is theoretical pie-in-the-sky.

The jurors have a self-interest in being able to live with their verdict, and that self-interest biases them towards a guilty verdict.

So here's a tip on how to use confirmation bias as a powerful emotion-coping tool. However you vote, you can maximize your self-interest by biasing the evidence to confirm your verdict.


david said...

Are you really going to insist on proof beyond a reasonable doubt?
Proof beyond a reasonable doubt is a cornerstone of the justice system in the United States. It is what is supposed to keep the state from imprisoning the wrong person, whether maliciously or accidentally. So, it doesn't matter whether the crime is a simple breaking and entering where it wasn't a violent crime or even something as horrific as child molestation. The testimony of the victims, as well as all other relevant testimony must be taken into account when determining if the defendant is guilty or not. Why would they say that they were molested if they weren't? There are alot of reasons why people lie: children are easily influenced, children do not necessarily understand the seriousness of the charges that are being brought against the defendant, they may not have seen the perpetrator well and are mistaken on the identity of who violated them, just to name a few.

How are you going to feel if that person walks free because of you? If he molests again, as he is certain to do if he did it before, won't you be partially responsible?

I will feel that justice, on the part of the defendant, will be done suitably. Convicting an innocent of any crime falsely is a terrible miscarriage, as we have seen many times before in your blog, and just because we find the crime to be horrific, does not mean that we should accept any less of a burden of proof than for 'lesser' crimes. In fact, it should require a deeper look at the evidence and testimony because of the seriousness of the incarceration and societal stigma against convicted child molesters. Several states, including California, allow for the indefinite civil commitment of convicted child molesters, simply because they are afraid that somebody who have been convicted of offending might offend again despite whether they actually offended in the first place, should a person risk going to jail if he or she is not guilty beyond a reasonable doubt? As a juror, I will not be in the least bit responsible if an accused child molester molests after I have voted to not convict him or her. We cannot control anybody else's behavior beyond our own, despite as might try, and telling jurors that they are responsible for future behavior of those they are on a jury for would lead to 100% conviction rates just in case that person were to commit a crime in the future. Is it a police department's fault if they catch a suspect, cannot find sufficient evidence to keep him or her in custody, release him or her and the suspect commits the same crime again? Absolutely not. What if they arrest somebody, take him or her to trial and it turns out he or she was innocent but later on the defendant commits another crime. Is it anybody fault in the original trial that the defendant was 'on the street?' Absolutely not. We cannot convict people based on what they WILL do or what they MIGHT do, only what they HAVE ALREADY done. We operate on the idea that people have free will and as such, can change their minds about committing a crime until they have actually committed the crime. Preventative imprisonment is counter to everything that the United States justice system was founded on. And further, it does nothing but turn the country into a prison state.

david said...

Won't you?

No. Jurors cannot control people's actions any more than the police, teachers or parents can. At some point, people need to take responsibility for their own actions and jurors are not responsible when people decide to violate the law.

Will it be sufficient comfort to you that you only followed your jury instructions, that you stood by your oath? The State presented some evidence of guilt, but they always present some evidence of guilt. Do you feel so strongly that evidence did not constitute proof beyond a reasonable doubt that you are willing to risk putting a child molester back on the street?

The idea of reasonable doubt tells me that it does not have to be superbly compelling, even just a minimal doubt at a 10% level or so should be sufficient that the person is not guilty. The state must present evidence of guilt that is much more particularly compelling than the defense must present with regard to the defendant's innocence. And finally, I think that people are analyzed much more closely when charges of heinous crimes are brought against them. There is such a stigma against these individuals that, even if they are found not guilty, there are people who see them as being guilty despite the outcome of the trial. There is even the potential of societal stigma when incontrovertible evidence is presented that the defendant did not commit the crimes for which the charges have been brought.

tsj said...

I'm pleased that you take umbrage at the thought that a juror might not demand proof of guilt beyond a reasonable doubt.

Unfortunately, I have to disagree with you when you call that premise a cornerstone of our justice system. It should be, at least I believe so and you believe so, but it is not. I refer you once again to Part IV of this series and the revealing, disturbing plot therein.

Proof beyond a reasonable doubt may be an ideal for which we strive, but it unfortunately not a cornerstone. That is the point of this entire Compliant Juror series.

Anonymous said...

Just found your blog and I am enjoying your compliant juror series immensely. Peer pressure is also a juror compliance factor (perhaps you already covered that under the authority topic and I missed it). Particularly pertinent to your VI topic and the case upon which you deliberated, look up Ed Jagels on Wikipedia, a corrupt prosecutor in Kern County CA who successfully prosecuted 35 innocent people(sans physical evidence). Young children were coached and coerced into delivering false testimony. How might a sitting juror react to your described case if he/she were aware of the Kern County travesty? I look forward to commenting further on this blog. There is an enormous burden of proof for prosecutors for many reasons, though a lack of critical thinking skills prevents most uninformed jurors from adopting that perspective. I am deeply concerned about wrongful conviction. Prosecutorial misconduct is just one of the contributing factors. I recommend these two books for skeptical jurors: Myths and Realities of Crime and Justice, S. Barkan and G. Bryjak; and The Collapse of American Criminal Justice, W. Stuntz. Keep up the good work!

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