Jury Deliberations: The Real Closing Arguments

Debate can be had about whether jury trials are won or lost during voir dire, opening statements, or closing arguments.  Different attorneys often cite different stages as the most important aspect for how they win the trial. However, at the risk of damaging egos of attorneys everywhere, it should be noted that the attorneys aren't the ones who actually have the final word before a jury renders its verdict.  After the attorneys go back to the waiting room with their clients, or perhaps go take a lunch break, the members of the jury debate amongst themselves to decide the fate of the trial.  Perhaps one attorney has so convincingly presented the case that the jurors do nothing more than sit down and cast votes in her favor, but rarely are twelve people aligned on any issue, and decisions about guilt or innocence certainly would not fit into one of those rare exceptions.  Edward Schwartz notes in his blog that even after deliberations, the rate of hung juries nationally is around 7% (and sometimes as high as 20%).  After all, where there is an attorney arguing one side, there is always an attorney arguing the opposite.

In an interview I conducted with a former juror, the juror indicated to me that 7 out of 12 jurors initially intended to vote "guilty" in the criminal case they heard.  The plaintiff, it seems, made the more convincing arguments and presented the best facts.  The majority of the jurors had been persuaded and were ready to vote.  That is, until the deliberations started.  During the deliberations, the interviewee explained that the jurors who were not so convinced with the plaintiff's presentation began to make their own case in favor of the defendant.  When it was all said and done, the minority of the jurors had actually persuaded the majority to share their point of view, and the ultimate jury verdict read "not guilty."  The interviewee seemed to think that perhaps the jurors who didn't want to convict had simply remembered the facts better, or were more able to pick out the important facts and issues. Whatever the cause, her experience shows that jurors have the ability to change the minds of other jurors on a significant level.

Shultz's blog notes a similar phenomena. He cites to a study by Nicole Waters and Valerie Hans whereby jurors in 367 trials across four states were given a poll at the end of the trial asking how they would have voted had they been the sole juror, and a significant 38% of juries contained at least one juror who ultimately agreed to vote with the rest of the jury but actually disagreed with the outcome.  In cases that returned a unanimous verdict, an average of 1.5 jurors voted with the outcome even though the disagreed and would have voted differently had they been alone. Unfortunately for prosecutors, studies show that jurors in the voting minority arguing for an acquittal may be more easily able to convince members of the majority to change their vote than a minority of jurors trying to convince the other members of a jury to find a defendant guilty.

Additionally, while an Arizona study shows that while about 21% of jurors make up their minds about how they will vote during the plaintiff's presentation, and about 21% will make up their minds during the defendant's presentation, an incredible 46% of civil jurors actually identified the jury deliberation as the single most important factor for how they will vote.  Even in felony trials, Waters and Hans found that 24% of all jurors actually changed their vote during deliberation.

For all the importance placed on the words of the lawyers or the layout of a case, it seems that perhaps the most powerful tools to winning over a juror are actually the other jurors.