Silence Please: Letting Jurors Talk

Traditionally, jurors are instructed not to discuss the trial among themselves until the trial is complete. The list of people and topics that jurors can talk to and about while they are performing their civic duty are extremely limited; this is another brick in that wall. But jurors say that they want to talk about the trial. Some jurors say that they specifically want to talk to other jurors about the trial. As such, one jury reform is just that: allowing jurors to talk to each other about the trial during the trial.

The classic worry about jurors talking to each other before all the evidence is presented and closing arguments are given is that they will form opinions and draw conclusions about the case prematurely, with those opinions and conclusions then falling prey to confirmation bias. But research indicates that allowing jurors to discuss the trial during the trial had no significant impact on when people started to have opinions on who the final victor should be. A related fear is that increased discussion will cause information presented earlier in the trial to become more deeply embedded into the jury’s minds. While this did not happen in one study, with both groups that discussed and groups that didn’t discuss paying similar amounts of attention to the first half of the trial, groups that did not discuss recalled the second half of the trial better. One problem has been traded in for another, and due to the back-and-forth nature of the adversarial system, one party may prefer a jury that discusses while another may prefer a jury that does not.

But another point to consider is that there is no way to ensure that all jurors follow all the court’s instructions all the time. A recent, high-profile example of how jurors can and will defy the court is the El Chapo trial, where jurors reportedly looked into media coverage of the trial despite repeated admonishments not to. If the court cannot stop jurors from talking, then the solution may be to let them talk in a setting provided by and controlled by the court. The court would, effectively, be allowing jurors to break the rule in a small way in order to keep them from breaking the rule in a bigger way. Jurors that were allowed to talk to each other during trial were less likely to admit talking to friends and family about the trial. However, these are self reports. There may be a qualitative difference between speaking to friends and family when one hasn’t been given an official outlet for the desire to speak and when one has. Logically, one’s friends and family are very different from one’s fellow jurors and so talking to one group may provide benefits different from the benefits provided by the other. Simply put, even when given the option to speak to fellow jurors, a juror may choose to speak to his or her friends and family as well or instead. But for jurors allowed to discuss amongst themselves, talking to friends and family is a forbidden alternative to an allowed form of discussion rather than one of a multitude of equally forbidden options. As a result, they may be more reluctant to report. There does not seem to be any way to make sure that jurors follow the rules given to them by the court because giving them a path of least resistance does not guarantee that jurors will take that path or take only that path.