Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt

By Farrell, Amy; Givelber, Daniel | Journal of Criminal Law and Criminology, Fall 2010 | Go to article overview
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Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt

Farrell, Amy, Givelber, Daniel, Journal of Criminal Law and Criminology


The constitutional right to a jury trial rests upon values in addition to the interest of accurate fact-finding. When, at the height of the due process revolution, the Supreme Court confronted the question of whether the United States Constitution required states to afford criminal defendants the right to a jury trial in a serious case, the Court did not base its ruling on the view that juries were more accurate fact-finders than judges. (1) Rather, as it noted in Duncan v. Louisiana, the constitutional right to a jury trial in a serious criminal case reflected

   a profound judgment about the way in which law should be enforced
   and justice administered. A right to jury trial is granted to
   criminal defendants in order to prevent oppression by the
   Government.... If the defendant preferred the common-sense judgment
   of a jury to the more tutored but perhaps less sympathetic reaction
   of the single judge, he was to have it. (2)

The Court in Duncan found support for its view in empirical research on judge and jury decisionmaking. Responding to the objection that "juries are incapable of adequately understanding evidence or determining issues of fact, and that they are unpredictable, quixotic, and little better than a roll of dice" (3) the Court referenced Kalven and Zeisel's seminal study from The American Jury, stating:

   Yet, the most recent and exhaustive study of the jury in criminal
   cases concluded that juries do understand the evidence and come to
   sound conclusions in most of the cases presented to them and that
   when juries differ with the result at which the judge would have
   arrived, it is usually because they are serving some of the very
   purposes for which they were created and for which they are now
   employed. (4)

Analyzing survey responses from over 500 judges presiding over 3,000 criminal trials, Kalven and Zeisel concluded that when cases are close on the evidence, juries are "liberated" from the dictates of the law, and can--and do--give expression to extralegal values in arriving at verdicts. No other work of social science relating to jury behavior has been as widely cited or as approvingly referenced by courts. (5) Kalven and Zeisel's research has been cited in twenty-five different Supreme Court decisions (as well as more than 190 decisions of other courts) (6) as support for a proposition concerning the behavior of juries. These citations are a tribute to the eminence of the authors, and to the breadth and sweep of their empirical and analytic work, as well as to the mostly reassuring message that judges are bound by legal rules, but juries can and do make decisions that reflect the values and sentiment of the community, even when those decisions are in opposition to the law.

Kalven and Zeisel drew their conclusions about why juries disagreed with judges entirely from survey responses from judges about their perceptions as to why juries arrived at a different conclusion than they would have in the same case. (7) No attempt was made to verify that the conclusions of the judge about why the jury arrived at its verdict were in fact correct. Additionally, research for The American Jury was conducted over fifty years ago at the dawn of the civil rights movement before the composition of police forces, judges, and juries began to reflect more accurately the race and gender of the general population. It was conducted before DNA analysis exposed the vulnerability of previously uncontestable convictions in serious cases. Their data also predated the constitutional revolution in how courts conduct criminal adjudication. (8) The demographics of defendants in felony courts have also changed substantially since the time of Kalven and Zeisel's study. (9) While more recent research on jury decisionmaking has generally supported the notion that the liberation hypothesis is "alive and well" in modern courts, (10) no studies have directly measured whether sentiments as reported by jurors explain judge-jury disagreements, and whether the effect of juror sentiment are most pronounced in cases where the evidence is close.

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Liberation Reconsidered: Understanding Why Judges and Juries Disagree about Guilt


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