Yes, Juries Sometimes Talk About Things They're Told Not To
Empirical evidence says that some attempts by judges to control jury deliberations fail, Shari Diamond, professor of law at Northwestern University told other legal scholars at a conference February 23 and 24 that examined new perspectives on evidence.
"You can't unring the bell," Diamond said. "Once juries have heard a piece of information it sticks in their deliberation of the case."
This is hardly surprising, she added, pointing to modern behavioral science research that disputes earlier assumptions that juries could be treated as blank slates, or that their reasoning about a case could be limited to knowledge they gained in the trial.
"Juries are active," Diamond said. "They come with expectations and beliefs that affect what they are likely to believe happened in a case."
Diamond and Neil Vidmar of the Duke University law school are researching how juries deliberate civil cases in Arizona, a state whose laws will permit such studies. The project includes videotaping trials and juries in the courtroom, which is unprecedented. So far the pair have examined more than 50 cases, mainly involving motor vehicle insurance claims. They are especially interested in the results of judges' efforts to enforce their jurisdiction's evidence rules by "blindfolding" juries -- excluding evidence that might influence their decisions in legally unacceptable ways. They presented a draft version of their study findings -- how blindfolding often doesn't work -- to the conference.
"Insurance issues and payments are always the 2000 pound gorilla in the room," said Diamond. "They lurk in the background even when judges admonish juries not to consider insurance issues relevant but to look only at the evidence presented."
It is clear from their research that "juries do NOT like double-dipping in insurance payments," she said. They do not want to think they were dupes in a scheme to get more compensation than was deserved.
Judges nonetheless face the problem of how to instruct juries about what their job is: sorting out the facts of the event and who is at fault, not how financial compensation will be paid out or from what source.
Diamond and Vidmar proposed the following admonishing language for such cases:
In reaching your verdict, you should not consider whether any party in this case was or was not covered by insurance. As you may know some plaintiffs are covered and some are not, and some have various forms of partial coverage. The same is true for defendants. The law does not allow the parties to present any evidence about insurance or lack of insurance or amount of insurance, and there is no way that you can accurately determine whether any party in this case has insurance coverage or if they have it, how much insurance they have. More importantly, insurance or lack of insurance has no bearing on whether the defendant was or was not negligent or on how much damage, if any, the plaintiff has suffered.
Conference participants, professors from U.Va. and other prominent law schools, generally found this proposal still rather like handslapping. A better strategy would be to clearly explain the reasons behind the blindfolding instruction, most agreed.
The point raised the issue of whether juries should be allowed to ask questions of attorneys and witnesses. "Attorneys are generally the most opposed to expanding the power of juries to ask clarifying questions," Diamond said. "They fear it takes power from them to influence juries. About half of attorneys who have experience with juries asking questions are comfortable with it."
Ronald Allen of Northwestern University favored allowing questions. "The [Diamond/Vidmar] study shows reasonable efforts by people to truly understand the relevant facts and a reluctance, hence the questions, about whether the jury is an unwitting accomplice in a scam."
So long as juries' questions cannot be raised in the courtroom, pressure to explore them will exist in deliberation chambers.
Judges, meanwhile, are concerned about appellate review of their cases, Vidmar pointed out, and tend to read the blindfolding instructions to the jury whether they believe the jury abides by them or not.
"Jury instructions serve the needs of an hierarchical system," Allen said. "Sometimes the point is not whether the jury understands the instructions, but to preserve the jury's respect for the authority of the judge."
Participants agreed that the aim should be to change blindfolding instructions from being legal requirements to messages that are sensitive to the actual case. But that change would be disastrous if relationships between trial courts and appellate courts are not likewise changed.
Four other draft papers were discussed at the conference, "Naturalized Epistemology and the Law of Evidence," by Ronald Allen of Northwestern and Brain Leiter of the University of Texas; "The Economics of Evidence Law: Common Sense on Stilts," by Richard Lempert of Michigan (commented on by Judge Richard Posner of the U.S. Court of Appeals, 7th Circuit); "Admissibility, Expert Evidence and the Problems of Reliability," by Jennifer Mnookin of U.Va.; and "Statistics and the Dynamics of Daubert," by David Kaye of Arizona State. The conference was sponsored by the law school's John M. Olin Program in Law and Economics and the Virginia Law Review.