Juries & Witnesses
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Ballew v. Georgia
Grigsby v. Mabry
Ballew: Does Size Matter?
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Ballew is convicted of
distributing obscene materials
by a 5-member jury in Georgia
state court
Argues that his 6th Amendment
rights were violated
Law
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14th Amendment
– “No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States”
6th Amendment
– “right to a speedy and public trial, by an impartial jury”
Duncan v. Louisiana, 391 U.S. 145 (1968)
– “the Fourteenth Amendment guarantees a right to trial by jury in all
criminal cases that – were they to be tried in a federal court – would
come within the Sixth Amendment's guarantee”
Williams v. Florida, 399 US 78 (1970)
– a 6-person jury is constitutional
– “the purpose of the trial by jury is to protect against oppression by the
Government”
– 6th amendment requires a jury of sufficient size to promote group
deliberation, insulate members from outside intimidation, and provide a fair
possibility of obtaining a representative cross-section of the community
– based on “convincing empirical evidence” that 6-person juries did not result
in different outcomes from 12-person juries
Findings in Ballew
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Issue: does a further reduction in size below 6 have an adverse effect,
and if so, are there countervailing state considerations?
Court finds that smaller juries:
– are less likely to foster effective group deliberation (Lempert)
– produce less accurate results. Type I error raises as jury size
diminishes, Type II error raises as jury size increases. An optimal
size can be reached based on this interaction (Nagel and Neef)
– produce more varied verdicts, and variance amounts to an
imbalance against the defense (Lempert and Zeisel)
– are less representative of minority groups, and hence less likely to
represent a cross-section of the community (Lempert/Asch)
– could only disagree in 14% of cases anyway since judicial system
handles so many “clear cases,”, so empirical research is biased
towards consistency (Lempert)
The court basically invalidated all present and future research on the
subject and proceeded based on statistical inferences
Zeisel and Diamond
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Criticized the 4 studies relied upon in Williams
Washington study
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studied 128 workmen's comp. trials
civil trials in Washington are tried before 6-member
juries, unless 12-member juries are requested
the opposite of random
there are most probably definite reasons why attorneys
request 12-person juries, though these are not
mentioned, so the study is unreliable
Zeisel and Diamond cont'd
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NJ study
– same situation as Washington study, same difficulties
– study mentions problem (unlike Washington), but essentially ignores it
– study concluded that trials before 12-person juries took more time and
awarded more damages than 6-person juries
– but attorneys requested12-person juries for more complex cases involving
more damages
Zeisel and Diamond cont'd
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Michigan before-and-after study
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studied Michigan cases before and after they switched
to 6-person juries
suffered from historical effects
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a mediation board was created
procedural rules were modified to allow discovery of
insurance policy limits
average award in auto negligence cases was $11,147
for 12-person juries and $23,768 for 6-person juries
if the historical factors produced more settlements, this
would have eliminated many low-damage cases, since
these are more likely to settle than high-damage cases
Zeisel and Diamond cont'd
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Michigan lab study
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videotape of a trial shown
to 8 6-person juries and 8
12-person juries
comprised of
undergraduates
evidence weighted highly
in favor of defendant
instructed using Michigan
jury instructions, which
allow a 10-2 or 5-6
majority to return a
verdict
Lempert
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Critiqued Zeisel and Diamond's suggestions of
how to do better studies
Zeisel's ideal design
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have a jurisdiction in which cases were heard by both 6
and 12-member juries at the same time, and compare the
results
but this doesn't take into account the “clear cases”
problem
via statistical inference (648-53), only in 14.1% of cases
does jury size have a reasonable probability of affecting
jury verdicts
if it actually effects verdicts in 1/3 of those, then that's less
than 5% of the whole
How did he get 14.1%?
Lempert cont'd
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Zeisel's next-best, more practical design
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study a jurisdiction in which some trials are before 6-person juries and some
trials are before 12-person juries
but to avoid the problems in the Washington and NJ studies, only “flip-acoin” trials at which the attorneys expressed no preference could be studied
these are likely to be the cases in which size doesn't matter
this design could disguise disagreement: even if the conviction rates
were the same, the juries could have disagreed on a large percentage
of them
● e.g. both convict 45%, but 12-member juries would have convicted
55% of the 6-member cases, and 6-member would have convicted
35% of the 12-member cases
● based on evidence that judges find for plaintiffs 57%, and juries
59%, but they disagree in 22%
Lempert cont'd
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So if the probability of
size-effects is so small,
why do we even care?
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because size effects aren't neutral,
they're tied to other values such
as prejudice against minorities
Lempert cont'd
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Interverdict stability
likely to be greater
More likely to
represent community
views accurately
Lempert cont'd
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Cited general social science studies on groups (not
juries) indicating that larger groups were superior
as to memory, consistency, and diversity
Concluded that there is insufficient data, but what
reliable data we have coupled with probability
theory points to larger juries being better
How comfortable are we with relying on statistics
to this degree in the absence of empirical studies?
Nagel and Neef
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Cited by the court for the proposition that Type I error raises as jury
size diminishes, and Type II error raises as jury size increases
the sum of the errors is the least somewhere between six and eight
members
based on [a whole lot of] conjectural numbers
one empirical set of numbers from sample of 3,576 juries nationwide:
64.2% of 12-person juries returned guilty verdicts, 30.3% not guilty,
and 5.5% hung
Respondents' Brief
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Devoid of social science research, entirely
composed of legal arguments
Brought up methodologically ridiculous studies at
oral argument which were already criticized by the
petitioners' evidence
Generally unprepared
Conclusion
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Below 6, and the slippery slope gets too slippery
Powell concurrence
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“a line has to be drawn somewhere”
“[I] have reservations as to the wisdom – as well as the
necessity – of Mr. Justice Blackmun's heavy reliance
on numerology derived from statistical studies.
Moreover, neither the validity nor the methodology
employed by the studies cited was subjected to the
traditional testing mechanisms of the adversary
process. The studies relied on merely represent
unexamined findings of persons interested in the jury
system.”
Grigsby v. Mabry: Do scruples
matter?
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Grigsby and McCree are convicted of capital murder in
Arkansas
They contend that their 6th Amendment rights were violated by
the exclusion from the guilt-phase of the trial of prospective
jurors who expressed “adamant scruples” against the death
penalty
Issues
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Are there among those in the group adamantly opposed to the death penalty
(Witherspoon excludables, or WEs) persons who could fairly and impartially
try the guilt/innocence issue if they did not have to participate in the
sentencing phase?
If so, does the exclusion of such persons deprive the defendant at the guilt
phase of a representative jury, or result in a jury that is more prone to
convict?
Witherspoon v. Illinois, 391 U.S.
510 (1968)
Supreme Court held that “a sentence of death
cannot be carried out if the jury that imposed or
recommended it was chosen by excluding veniremen
for cause simply because they voiced general
objections to the death penalty or expressed
conscientious or religious scruples against its
infliction.”
●Court did not consider the exclusion of those who
“could never vote to impose the death penalty” and
those who “state that their reservations about capital
punishment would prevent them from making in
impartial decision”
●Court considered social science evidence to be
inadequate, left the question to later courts
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Relevant categories
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Witherspoon excludables (WEs)
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Nullifiers: would never convict if they knew the death
penalty were possible
Guilt-phase includables (GPIs): could judge the guilt of
the the defendant fairly, although they were deathscrupled
Automatic Death Penalty jurors (ADPs)
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Would always vote for the death penalty if given the
option
Court bias
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The district court had a clear bias in favor of the
petitioners
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“The research has been done. The studies have been
introduced into evidence and explained. What do they
show? They prove that what we “knew” all along is in
fact true.”
Regarding the Haney study: “Since the results of his
study appear to confirm the 'gut' opinions of those who
daily operate in the courtroom environment it is
important to review it even though no one contends
that social science research on that problem is other
than in its infancy.”
Findings
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The exclusion of GPIs produces conviction-prone
juries which do not represent the community
State interests are served by having a bifurcated
jury
Capital guilt-phase juries should be composed the
way non-capital juries (99% of juries) are
composed: by asking whether or not the
prospective juror could determine guilt impartially
based upon the law and the evidence.