.

THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON April 17, 2002

Why can't we resolve our
differences like jurors?


Ever wonder how and why twelve complete strangers almost always succeed in resolving their differences of opinion over the guilt of an accused? Since hung juries are extremely rare, juries are practically guaranteed to reach a unanimous verdict whether it takes a few hours or more than a week. They do so in the confines of their jury room without the assistance of a mediator, negotiator, lawyer or judge. Yet, like all of us, outside of a courtroom the very same citizens have a much harder time resolving less complicated differences, whether it be with their spouses, partners or family members. So what is the jury's magic formula?

Juror's task is fraught with difficulties. First, it would be wrong to assume that jurors always face an easy mission when deliberating. On the contrary, their task is fraught with difficulties. They must overcome beliefs based on hidden or unconscious assumptions and previously formed opinions. Furthermore, they are selected from a pool of ordinary citizens whose skill in the art of listening is no better than average and who are all unskilled in evaluating litigious evidence. To complicate matters, when exercising their duties, the issues are anything but trite. By any reasonable standard, having to reach a unanimous verdict in a complicated case requires a major effort. One day a person's biggest concern is whether he should buy a house and suddenly he is on a jury having to decide whether a fellow citizen is guilty of murder.

Jurors are very rarely unanimous in their convictions over the guilt or innocence of an accused at the offset of their deliberations. The numerical breakdown of most early polls frequently reflects a sizable split between minority and majority factions. It all turns on the jury deliberating formula so how do jurors work out their differences without compromising their honest opinions just for the sake of reaching a consensus? Despite their different personalities, backgrounds, education and occupations, all of which should normally make their deliberations that more difficult, they end up adhering to the time-tested jury deliberation formula which, outside of the jury room, many would find far too painful to follow. They learn to listen carefully to each other and to consider and reconsider each other's positions. They learn to reason together as a group and adapt a give-and-take process by which their ideas and arguments are tested, refined, confirmed or rejected.

The bottom line is that the interaction of twelve individuals provides them with a level of collective wisdom that makes up by far for their lack of training and inexperience. The relevance of their oath how do ordinary citizens learn so fast to adapt such an opened-minded and objective attitude? There are a number of factors, the first being their all-important oath of office which serves as a constant reminder of their true role throughout their deliberations. Each juror, at the beginning of a trial, must take an oath to return a verdict based solely only on the evidence. This means, at least in theory, that all emotional arguments and considerations are to be excluded from their deliberations. Whenever jurors resort to arguments that have nothing to do with the evidence they are quickly reminded by other jurors to stick to the facts and not to be influenced by extraneous considerations. This is not to say that jurors never turn their back on the evidence to use their jury box as a form of civil protest. Furthermore, it is to be expected that jurors will be influenced in varying degrees by the accused's characteristics as well as by the attributes of the attorneys and judges.

The effect of being "locked" up in jury room Another reason jurors almost always succeed in overcoming their differences is because they are all locked up in a room without other distractions and told that they can't go home until they reach unanimous verdict. It was worse centuries ago when they were sequestered in the jury room without food, drink or heat until they reached a verdict. Today, they eat in restaurants and spend their nights in comfortable hotels. Still, the growing desire to return to their homes and families gives them an added incentive to try and work out their differences of opinion.

No pressure allowed from judge Another factor is that while deliberating, jurors are not subject to any pressure from outsiders. No deadline can be imposed for reaching a verdict and no jury can be rushed into returning a verdict. This explains why judges must be extremely careful to avoid coercive language when jurors are deadlocked. If a judge exerts pressure to the point of making the minority feel that they must agree with the majority, a higher court is almost sure to nullify their verdict and order a new trial. The simple suggestion by a judge that a juror should abandon his or her honest views in favor of the majority position is sufficient to poison a verdict. Every judge crosses the line as soon as he or she urges a jury to consider the public expense or inconvenience of a new trial. No judge may suggest that the minority faction might want to reconsider what the majority faction has been saying so that the accused and complainant can avoid the hardship resulting from a new trial. The main reason such exhortations are considered illegal is that they introduce an irrelevant and extraneous consideration into the jury deliberations that has nothing to do with the evidence and therefore encourages jurors to violate their oath of office. Importance of foreperson's role

Finally, the role of the jury foreperson is of major importance in allowing the jurors to overcome their differences of opinion. By upholding orderly conduct during the deliberations, each juror is assured an equal opportunity to express his or her opinions. By directing the discussions so that they address the relevant issues while encouraging a constant flow of comments, slowly but surely the jurors accomplish their fact-finding duties. Why can't we all rely on the jury formula?

If average citizens can learn to reason together in order to reach a verdict based solely upon the evidence, could we not all solve our differences by adapting much the same process? Absolutely, except we would have to first learn to listen, stick to the facts, consider each other's opinions, agree to remain sequestered until the issues were resolved, abide by a foreperson's rules ...