Hung Jury If the Jury Quantity of Thomas Munsterman, Grant Number 98– Failed to Reach a Verdict on All Counts Or on IJ–CX–0048, Available Online At

NIJ JOURNAL / ISSUE NO. 251

JOURNAL ISSUE NO. 251 / JULY 2004

Why Do Hung Juries Hang?

Final report submitted to NIJ, Are Hung counted a jury as “hung” if it failed to reach Juries a Problem?, Paula Hannaford-Agor, a verdict on any charge or on any defendant. Valerie P. Hans, Nicole L. Mott, and G. Some only counted a hung jury if the jury Quantity of Thomas Munsterman, grant number 98– failed to reach a verdict on all counts or on IJ–CX–0048, available online at http://www. all defendants. evidence and ncsconline.org/WC/Publications/Res_Juries_ HungJuriesProblemPub.pdf. To control for these disparate definitions, length of trial the research team’s analysis included A criminal trial can be very expensive. several categories of jury deadlock. Juries did not appear It is even more costly when it has to be that hung on all counts occurred least to affect the redone—and that’s just the monetary frequently (8 percent of cases studied). cost. Retrials also take an emotional toll Juries hung on the first count of the indict- likelihood of on victims and witnesses. ment (generally the most serious charge) in 10 percent of cases and on at least one a hung jury. With these facts in mind, the National count charged in 13 percent of cases. The Center for State Courts examined dead- number of defendants tried was related However, the locked, or “hung,” juries to see what charac- to the likelihood of the jury deadlocking. teristics they share and how they might be In 12 percent of single-defendant cases, quality of the avoided. As one part of the study, surveys the jury hung on at least one count, but evidence was a of jurors, judges, and attorneys were con- that figure increased to 27 percent when ducted in four jurisdictions. The Central multiple defendants were tried. very important Division, Criminal, of the Los Angeles County (California) Superior Court and the Effect of Multiple Counts factor. Superior Court of the District of Columbia were selected because of reported concerns As predicted by the researchers, the number about hung jury rates in those jurisdictions. of counts affected the likelihood of a hung The Maricopa County (Arizona) Superior jury. As the number of counts increases, so Court was chosen because of an innovative does the opportunity for disagreement. So, procedure there that permits judges to allow the more counts, the more likely that a jury further evidence and arguments when a jury will hang on at least one of them. On the reports it is deadlocked. The Bronx County other hand, more counts also means more (New York) Supreme Court was included opportunity for jurors to agree. Accordingly, because, like the other sites, it had a high juries that hang on all charges generally had volume of felony jury trials (allowing for quick fewer counts to consider. collection of data) and had court personnel willing to cooperate in the study. A total of The type of crime charged also made a 382 cases were included in the analysis. difference in the jurisdictions studied. Drug cases constituted 28 percent of the total A second part of the study took a closer look sample, but only 12 percent of the hung at 46 of the cases, trying to determine the juries. In contrast, juries in murder cases primary and peripheral causes of deadlock. were more likely than was expected to hang This subgroup, while too small to provide on at least some counts given their propor- statistically significant numbers, nonetheless tion of the total caseload—13 percent of the offers some interesting insight into the sample, but 24 percent of the hung juries. factors leading to a hung jury. Effect of Complex Evidence What Is a Hung Jury? Cases with complex evidence or complex The definition of a “hung jury” varies, legal instructions may make it more difficult and this led to differences in the reporting for jurors to reach agreement. When asked of hung juries across jurisdictions. Some to rate how easy the trial was for them

25 NIJ JOURNAL / ISSUE NO. 251

unable to reach a verdict on at least one Figure 1: Primary Reasons for Hung Jury, by Site charge (see figure 2, page 27). Site Sentiments About Fairness Reason Los Angeles Maricopa Bronx Washington, DC of the Law Weak Case 12 5 — 10 Police Credibility 2 — 2 3 Another factor leading to hung juries was the degree to which jurors believed that the Juror Concerns About Fairness 1 1 — 5 law they were instructed to apply was fair Case Complexity — — — 2 and would lead to the legally correct out- come. The concern seemed to be not one Dysfunctional Deliberation Process — — — — of sympathy for the individual defendant, Unknown — 1 1 1 but rather dissatisfaction with the fairness of the law in principle or its application in that particular trial. Total Number of Cases 15 7 3 21 Total 46* Effect of the Deliberation Process *These in-depth case studies were a subsample of the 382 cases studied. Several aspects of the jury deliberation process appeared to affect the final trial and their fellow jurors to understand, result in the jurisdictions studied. These members of hung juries were more likely included: to describe the trial as complex and difficult. Interestingly, judges and attorneys did not ■ Members of hung juries reported taking share the jurors’ perceptions; they rated their first vote earlier than the members of the complexity of the evidence and law as verdict juries—on average, within the first comparable in hung and verdict cases. 10 minutes of deliberation.

Case complexity rarely appeared as the ■ Where jurors ultimately could not reach a primary cause of jury deadlock in the verdict, there was less likely to be a large second part of the study. However, it majority in the first vote favoring either did play a peripheral role for some of conviction or acquittal. the hung juries. ■ Compared to verdict jurors, members Effect of Quality of the Evidence of hung juries were more likely to catego- rize fellow jurors as “unreasonable Quantity of evidence and length of trial did people” and were more likely to feel not appear to affect the likelihood of a hung that one or more jurors “dominated” jury. However, the quality of the evidence the deliberations. was a very important factor. By far, the most frequently perceived primary cause The deliberation process was never reported of hung juries in the second part of the as a primary reason for a hung jury, but it did study was weak evidence (see figure 1). contribute to jury deadlock at a secondary When asked to rate the strength of the level in over one-fourth of the trials. prosecution’s case, members of hung juries displayed much more disagreement in their Presumptions Proven Wrong ratings then did members of verdict juries. Another effect was seen when jurors were A number of presumptions about the asked to rate the ambiguity of the evidence. causes of hung juries have been expressed When a jury’s average rating of evidence in recent years. Many observers have assert- “closeness” was high (that is, the jurors did ed that the primary cause of jury deadlock is not view the evidence as clearly in favor of individual jurors holding out for illegitimate the prosecution or the defense), that jury reasons. Some also view the problem was significantly more likely to have been as racial or ethnic bias or conflict. Others 26 NIJ JOURNAL / ISSUE NO. 251

RECOMMENDATIONS FOR Figure 2: Percent of Juries That Hang, by Ambiguity DECREASING THE NUMBER OF of Evidence HUNG JURIES

What can policymakers do in jurisdic- 25 tions with unacceptably high hung jury rates? One popular proposal is to eliminate the requirement of a unani- 20 mous verdict in felony trials, adopting a Percent supermajority rule (for example, 11–1 of Hung 15 or 10–2) instead. There is no question Juries that this approach would substantially reduce the number of hung juries in 10 most jurisdictions. Proponents of this approach point out that it eliminates 5 the “veto power” of individual jurors who unreasonably or illegitimately seek to thwart a consensus. 0 Least A Little Somewhat Most But such an approach may address Ambiguous Ambiguous Ambiguous Ambiguous the symptoms of disagreement among jurors without addressing the causes. Hung on any charges Hung on all charges Moreover, a nonunanimous verdict rule might affect a jury’s deliberations in unintended ways, such as cutting off minority viewpoints before jurors have had an opportunity to consider them However, prior to this research project, thoughtfully. only a handful of studies gave more than Other solutions, based on other theo- superficial consideration to the dynamics ries of juror deadlock, may prove to be of hung juries. On this slim basis, it was more effective. Some approaches difficult for policymakers to reach informed being tried are: judgments about the probable effect of ■ Better preparation of evidence by various reform proposals. prosecutors and defense attorneys. This research—which combined a limited ■ Better tools to help jurors understand survey of hung jury rates, a jurisdictional the evidence and the law, such study of felony jury trials, and case studies as permitting jurors to take notes, of the 46 hung juries documented in the allowing jurors to question witnesses, and providing written copies of sample—provides a clearer picture of the instructions. reasons for hung juries and should help those who are searching for ways to ■ Better guidance for jurors on how to decrease the number of cases requiring engage in productive deliberations. retrial because of jury deadlock. see jury nullification—the refusal of some For more information jurors to base their verdict on the evidence ■ and the law—as the main cause. A variety Contact Paula Hannaford-Agor at the of proposals based on these presumptions National Center for State Courts, Center have been offered to deal with the problem for Jury Studies, 300 Newport Avenue, of hung juries. (See “Recommendations Williamsburg, VA 23185, 757–259–1556, for Decreasing the Number of Hung [email protected]. Juries.”)