The Hold Up with Holdout Jurors

Research suggests holdout juries are rare, with a federal hung jury trial rate for criminal cases averaging 2.5 percent and a state rate averaging 6.2 percent. On one hand, a hung jury in a criminal case may imply there was a reasonable doubt. On the other hand, one holdout juror on a panel of twelve may indicate a bias or otherwise unreasonable doubt that no amount of trial evidence can overcome.

Frustration with Holdouts

Judges and other jurors often find themselves frustrated with a holdout juror. Two weeks ago, in Brewster v. Hetzel, the Eleventh Circuit found that the Alabama Court of Criminal Appeals judge used coercive actions to persuade a holdout juror to reach an agreement in deliberations with the eleven-juror majority. The jurors reported three times that they were deadlocked. When they were deadlocked at a 11 to 1 split in favor of conviction, the judge ordered all reading materials removed from the deliberation room after he learned the holdout juror was doing crossword puzzles. This effectively led to a guilty verdict only eighteen minutes later.

Similarly, a few months ago, a juror in Paul Manafort’s criminal trial interviewed with Fox News and Reuters explaining there was a holdout juror who prevented conviction on 10 of the 18 charges focused on bank and tax fraud. The juror, Paula Duncan, says the holdout could not explain why she had reasonable doubt even after the eleven jurors went through the evidence trail with her. For example, the holdout juror found Manafort guilty of one count of failing to file reports of foreign bank and financial accounts, known as an FBAR form, for 2012. However, the holdout found Manafort not guilty for the same charge for 2011, 2013, and 2014.

Pressure in Deliberation

While judges or jury members may be frustrated with a holdout juror, there are often instances where social pressures convince a holdout to join the majority. External sources, like pressure from a judge or even a LinkedIn search as discussed in the blog post Lurking on LinkedIn: Trial Court Must Uphold Remmer, Even in the Digital Age, may carry substantial weight in attempting to overturn a verdict.

However, social pressures from other jury members are not viewed in the same way, with Rule 606 of the Federal Rules of Evidence barring consideration of statements made during the jury’s deliberations when inquiring into the validity of a verdict. Court cases have found no basis to question a verdict once the jury is discharged even when there is intimidation or harassment within the jury room, which was the ruling in the recent 2018 case Sears v. Sellers.

As a result, it is no surprise that there has been extensive research into the psychology of conforming, including the concept of groupthink coined by Yale University research psychologist Irving Janis in 1972. In addition, it is crucial to keep in mind that the majority of jurors undergo increased levels of stress while on the jury, explored at length in the blog post The Stressful Truth About Jury Duty, which may impact juror’s decision-making in deliberations.

Holdouts: Do they Foster or Hinder Justice?

While research suggests pressure to conform is strong, there are still some holdouts. They lead us to question whether they are a signal of the justice system working because they are effectively resisting social pressures to change their views, or whether they are irrationally holding onto bias or misconception, or perhaps even negatively responding to the pressure from their peers. While there are legal scholars on both sides of the debate on the need for unanimity, we can benefit from continuing to observe the outcomes of federal courts and state courts that require unanimity to further understand the rare instances with holdout jurors.