I'm Too Sexy for your Jail, Please Let Me out on Bail: how attractive defendants are treated more favorably by juries

"Please put these on before entering the courtroom."

Most of us know that jurors can be swayed by extra-evidential factors. However, did you know that juries will be more lenient to defendants who are more attractive? Robert Cialdini in his book “Influence: Science and Practice” wrote, “Research has shown that we automatically assign to good-looking individuals such favorable traits as talent, kindness, honesty, and intelligence.” The social science on the favorable treatment attractive defendants receive from juries is extensive.

This has been dubbed the “what is beautiful is good” phenomenon (Dion, Berscheid, & Walster (1972)). Physically attractive people are perceived by strangers as possessing higher social desirability, marital competence, parental competence, social and professional happiness, and likelihood of marriage. An experiment in 1969 held various mock “negligent homicide” trials, varying the attractiveness of a male defendant and asking the mock jurors to rate the degree of guilt of the defendant as well as determine his sentence length. The result was astonishing: “the attractive defendant was sentenced less harshly than the unattractive defendant, even when they were similarly rated as guilty of the crime.” Another study in 1975 by Sigall and Ostrove found similar results —that attractive defendants were sentenced less harshly by mock jurors— however, with one notable caveat: “attractive defendants were only treated more leniently when their attractiveness was unrelated to the crime they committed.” For example, if an attractive defendant swindled money out of someone by using their beauty or seduced a victim to burglarize them, then they were sentenced more harshly than unattractive defendants.

Not only do jurors give more lenient sentencing to attractive defendants, but they are also very favorable toward them in awarding damages. In a study published in the Journal of Applied Social Psychology, “the damages awarded in a staged negligence trial [to] a defendant who was better-looking than his victim was assessed an average amount of $5,523; but when the victim was the more attractive of the two, the average compensation as $10,051” (Kula & Kessler, 1978).

These results can be replicated outside of controlled research. A study gathering data about sentencing from real judges demonstrated that judges fined unattractive criminals “significantly more than attractive criminals.”

Source

Also, a study of 67 defendants’ sentencing in real Pennsylvania courts showed that criminals of “low attractiveness” were sentenced, on average, at a rate 119.25% higher than the attractive criminals.

This data is clearly troubling. What is to be done for those of us who have “good personalities” and find ourselves being sued for $4,000,000 in damages by some attractive person? Well, a controlled study indicates that when subjects are expressly told to “disregard the defendant’s physical appearance” in their judgment, the leniency factor disappeared (Friend & Vinson (1974)). However, this was in a controlled study. Could a real judge give a pre-trial, implicit bias speech in which he asks jurors to acknowledge that, deep-down, beautiful people are just as terrible as the rest of us? I think so. I believe that if a jury were made aware of the evidence of inherent bias toward attractive people, that may prompt them to reflect on whether their decision is based on evidence or based on societal stereotypes. After all, Cialdini wrote “we make these judgments without being aware that physical attractiveness plays a role in the process.” I believe that if juries were, perhaps, shown data of leniency toward more attractive defendants, then they may take care to not make similar assumptions of those who would appear before them. I think most jurors want to truly give a fair sentencing and being made aware of these biases may help them to do so.

Parts Unknown: Field Notes on Louisiana’s Split Jury Rule

After exploring southern Louisiana for his prominent CNN television show, "Parts Unknown," Anthony Bourdain described the state as a “magnificently weird place where locals continue to do things their own way.” He found the culture to be “closer to the ancient French tradition . . . vaguely dangerous, downright medieval.” While Bourdain was surely referencing the state’s food, festivals, and culture, his description is equally applicable to Louisiana’s legal developments surrounding jury unanimity.

What is the draconian “split jury rule”?

In November of 2018, Louisiana voters finally altered the “dangerous, downright medieval” jury rule from the Jim Crow era that permitted non-unanimous verdicts (the “split jury rule”) in serious felony cases. Prior to the  vote amending the state constitution to require jury unanimity, a criminal defendant could be found guilty by a vote of only 10 out of 12 jurors. In almost every other state, 10 jurors voting “guilty” and 2 voting “not guilty” results in a mistrial—not a conviction.

Will the dead rule get a second line?

          Though Louisiana voters eliminated these types of verdicts moving forward, the new unanimity requirement only applies to crimes occurring after January 1, 2019. Offenses that occurred prior to January 1^st are still subject to the split jury rule. Defendant, Valentino Ramon Hodge, finds himself in this purgatory after allegedly committing a felony before the new law took place. The district attorney prosecuting his case seeks to apply the split jury rule, hoping to increase the chances of getting a conviction. Hodge’s defense attorneys argue that such an instruction is unconstitutional and have appealed to the Louisiana Supreme Court to make such a finding.

The state’s highest court will now have to decide whether permitting non-unanimous jury votes in serious felony cases is unconstitutional—without much favorable guidance from the United States Supreme Court. The Court has found that split jury verdicts do not violate a defendant’s Sixth Amendment right in noncapital cases. The Court reasoned that “[r]equiring unanimity would obviously produce hung juries in some situations where nonunanimous juries will convict or acquit.” In other words, the split jury rule has the potential to acquit a defendant without possibility of retrial whereas the same result in a unanimous jurisdiction may leave the defendant open to being retried.

Split Jury or Unanimity: Which produces a more just result?

Because split juries can cut in favor of the prosecution or the defendant, it is not clear whether unanimity or split juries produce a more just, rights-protective result. Some data provides insight. Of 49 people exonerated post-conviction in Louisiana, 25 faced serious felony charges which permitted the split jury instruction. Of those 25, 11 were convicted by non-unanimous jury verdicts. This means split juries in Louisiana sent 11 innocent people to prison. If the jury voted the same way elsewhere, those 11 people would not have been convicted and would not have seen any prison time (assuming the defendants were not retried or were retried and received at least the same result). So, while it seems the split jury may, at times, cut in favor of defendants, the image of innocent people enduring convictions and jail time because of the split jury rule seems a bit, well, “dangerous, downright medieval.”

The potential for error coupled with the wisdom of 48 other states requiring jury unanimity in serious felony cases seems to support the idea that, on balance, unanimity is the better choice. Sure, keep Louisiana’s culture “magnificently weird,” but one can only hope the Louisiana Supreme Court will keep the split jury rule in the past where it belongs.

Introversion, Extroversion, and the Jury

Research shows that jurors with the most influence during jury deliberations tend to be those who are more extroverted and male. (Dennis J. Devine, Jury Decision Making 166-67 (New York University Press 2012)). Additionally, those identified as more persuasive or influential tend to participate more than other jurors. (Id. at 166). These results hardly seem surprising considering the structure of jury deliberations, which may be geared more towards those who prefer to think through ideas and problems via conversation.

Introversion v. Extroversion

Introversion and extroversion are psychological preferences defined by how a person gets their energy or likes to spend their time. An extrovert tends to be energized by spending time with other people and lots of activities. Extroverts often process information by talking. Extroverts are also often viewed as outgoing and good with people.

In contrast, introverts tend to be energized by spending time alone or with one or two people they consider close friends. Introverts tend to be more reflective and reserved, prefer to do things on their own, and typically have only a few close friends (as opposed to having lots of friends like an extrovert). Some research suggests that introverts make up one-third of the United States population. Other research suggests that extroverts make up between 50 and 74% of the global population while introverts make up between 16 and 50% of the population.

Introversion and extroversion tend to exist on a spectrum, so many people may have a mixture of both traits (called “ambiverts”). In fact, as many as two-thirds of the population may be classified as ambiverts. (Want to determine whether you’re an introvert, extrovert, or ambivert? Take this quick test).

The Extroverted Ideal

Western culture seemingly favors extroverts—school primarily caters to extroverts by placing students in big classrooms where kids must fight for attention and participate in group activities, and job interview formats favor those who are more charismatic and engaging, to name a few examples. Not to mention all of the articles and books written on how introverts can succeed in an extroverted world.

Susan Cain, a former lawyer turned author, wrote a book on introversion and suggested that Western culture favors extroverts who often come across as more charismatic. Moreover, she argued that the increased importance of group thinking and brainstorming tends to favor extroverts because these activities accommodate those who come up with ideas through conversation. Introverts, however, require time and space for deep thought and focus in order to come up with ideas.

Consequences for Juries

Jury service also appears to favor the extrovert by utilizing a group think type of approach to determine verdicts. Extroverts tend to prefer conversation to process information and solve problems, and so jury deliberations seem to be a good avenue for them to reach a verdict. Moreover, extroverts are likely speaking more frequently and for longer periods of time, and so are likely able to exert more influence over others during deliberations. Not to mention, it seems quite likely that introverts are not signing up to serve as the foreperson, who have been shown to be influential in jury decision-making. Research shows that introverts are more likely to stay away from leadership roles.

In contrast, introverts prefer to think on their own, so they are likely not speaking up nearly as often during deliberations. And this means that they do not have nearly as much influence, even if they may feel quite strongly about something or have valuable insights. Any teacher could tell you that more extroverted students tend to be the ones to voluntarily participate in open discussion formats, even if the more introverted students may have answers or thoughts that are not volunteered. Such a dynamic seems likely to play out in a group setting like the jury.

It also seems quite possible that the size of the jury may play a role in determining how significant the impact of introversion may be in deliberation. In other words, an introverted juror may feel more inclined to participate actively on a jury of six than on a jury of twelve. And an extroverted juror may be more influential on a jury of twelve where the sheer number of people may deter introvert participation.

Or perhaps even the foreperson’s approach to leading the deliberations may play a role in participation of the extroverted jurors as compared to the introverted jurors. An open discussion format may be less conducive to encouraging introverts’ participation than a more structured approach to deliberations where each juror is given designated talking time. Moreover, providing jurors with a balance between “group think” time and alone time to consider the issues may also benefit introverted jurors.

Interestingly, one research study revealed that subjects who answered a difficult question on their own were wrong only 13.8% of the time while those who answered the question with a group were wrong 41% of the time. This seems problematic for the jury process, which demands group problem solving. But it provides evidence for adopting more varied approaches during deliberations. In other words, perhaps it is important to provide jurors with time to think on their own and maybe even write out their analysis at various stages of deliberation, as one law professor has suggested.

The Super Power That Jurors Don't Know They Have

The Jurors Secret Power: Jury Nullification

Thousands of hours of debate have revolved around statutory application and how it may apply to a particular set of facts. Judges, lawyers, scholars, legislatures, and politicians are constantly arguing for adherence to their interpretation of the law. But these individuals are not the ones that hold the power. Unbeknown to most juries, it is the jurors that hold the trump card. They have the power to decide not only what the facts are and how the law should apply, but more shockingly they can freely choose whether they will follow the law at all. This secret power is known as jury nullification. Even if the jury believes the defendant to be guilty under the law, they can choose to render a verdict of 'not guilty'. Despite believing that the law dictates a guilty verdict, a jury can choose to nullify the law and essentially reject its mandate. Juries nullify laws that they believe to be unjust, immoral, or unwarranted for a sympathetic defendant by rendering a verdict that is contrary to the weight of the evidence. But why is this power so secret? And is it a power for good, or a power for evil? 

Why so secret?

Juries are told of their role as 'fact-finders,' and their duty to render a verdict of 'guilty' or 'not guilty' by applying those facts to the given law. They are also admonished not to research the law outside the given instructions. So if the trump card–jury nullification–is so powerful and legal then why are they not informed of it? Whether jury nullification is a fundamental right, natural right, or no right at all, has been a hot topic of debate. It is this controversy that often makes judges reluctant to allow nullification tips to the jury. Judges fear that informing juries of this right may lead to jury anarchy that is fueled by sympathy rather than fairness. They may or may not have the right to nullify, but what is not debatable is whether juries have the power to. The Constitution of the United States prohibits "double jeopardy," meaning that a defendant may not be retried for the same charge. So once a jury renders a verdict of 'not guilty' their job is completed and they cannot be punished for their verdict, even if it is deemed as improper. Here lies the subtle power of jury nullification. 

A power for good...?

While our judicial system on whole fears jury nullification, it is not actually creating new law, but rather it allows for juries to combat corruption of prosecutors or others that may be using the law in ways it wasn't intended. For example, jury nullification saved many abolitionists from the Fugitive Slave Act. Additionally, several argue that jury nullification serves as a feedback mechanism, and also prevents the "whims of the judge and legal maneuvering of the prosecution" to dictate the fate of the accused. The question then becomes who do we trust more to carry out justice; a representative jury or written laws that may become stagnant over time?

Or a power for evil?

Jury nullification serves as a "vital check on government power while simultaneously undermining the very premise of our adjudicative system." Many argue that the jury is not supposed to decide what the law should be, and furthermore should not be allowed to choose to depart from the law out of sympathy for a defendant or prejudice against the victim. The effects of this can be seen on a spectrum of severity. For example, juries may choose to nullify in drug cases because they believe in legalizing drugs. On the other end of the spectrum, we saw early southern juries consistently utilizing their nullification power by refusing to convict members of the Ku Klux Klan when it was proved that they murdered black civil rights activists. Subsequently, whether the jury likes the defendant can easily determine the verdict. This is troubling when we think about infamous serial killers like Ted Bundy and Jeffrey Dahmer, who were considered extremely likable and charming defendants.

Food for thought
Ultimately, this mostly untapped power of jury nullification will continue to be a topic of debate for our justice system. Whether this power should be encouraged or smothered is a question that yields wildly different opinions. This issue is complex and difficult to address because it's riddled with doubts about humanity, our justice system, the legislature, and other complex constitutional issues. But the simple truth is this: our juries hold much more power than they know.