Volume 9 • Number 1 CASELOAD HIGHLIGHTS EXAMINING THE WORK OF STATE COURTS

A Profile of Hung Juries

Jury trials are held in open ways. First, they challenge plex legal and evidentiary state courts between 1996 court, but jury deliberations perceptions about the cred- issues. This issue of Case- and 1998. Approximately can be mysterious, especially ibility and fairness of the load Highlights profiles the 70 percent of the 1.2 million when the jury “hangs.” A legal process. Beyond issues circumstances surrounding cases examined ended in a jury “hangs,” or is “dead- of basic justice, jury trials are hung juries. guilty plea, about 24 percent locked,” if jurors cannot expensive and require consid- were dismissed or disposed agree upon a verdict: the erable time and resources The National Center for State as an “other” disposition result is mistrial.1 Hung from the judge, court staff, Courts (NCSC) recently (e.g., diversion to an alterna- juries threaten court and legal counsel, litigants, and completed a national exami- tive court program such as a public interests in several witnesses. Finally, hung nation of hung juries, the drug court or transfers to a juries raise questions about first such cross-jurisdictional federal court), and less than 1 A judge may also declare a mistrial due to prejudicial error or an extradordinary event. juror abilities to handle com- study in nearly forty years. 3 percent were resolved by The background of the NCSC jury trial. Of the 33,000 study and methods used are cases disposed by a jury discussed to the left. trial, about 1,600, or 6 per- Study Background & Methods cent, “hung.” Regardless of The following figure shows whether resolved by bench The results presented in this Caseload Highlights are derived the manner in which felony or jury, about three-quarters from a 2002 National Center for State Courts’ study covering cases were resolved in 30 of trials end in conviction. 32 counties across 14 states and all federal circuit courts in two separate phases. The project was funded by the National Institute of Justice with the first results presented in Are Hung Juries a Problem? 2 The purpose of the study was to conduct State Felony Dispositions in 30 Counties, 1996-1998 a comprehensive analysis of the factors that relate to hung juries and determine how often juries hang and why. Total Felony Dispositions: 1,198,338

In the first stage of the project, NCSC compiled aggregate Bench Trial: 51,535 Jury Trial: 32,753 civil and criminal data from 1980 through 1997 for all 12 Dismissed: 123,561 federal circuit courts from the Administrative Office of the Convicted 71% U.S. Courts. In addition, NCSC assembled wide-ranging data Acquitted 19% Hung from the state courts and prosecutors’ offices supplemented Other: 168,120 6% Other Mistrials 4% with information from annual reports. These data covered 30 courts between 1996 and 1998 on state felony criminal trials. In the second stage of the study, researchers conducted an in- depth review of four sites on nearly 400 felony trials. In this phase, NCSC collected detailed data on felony jury trials that hung or ended in a verdict. NCSC surveyed jurors, judges, Guilty Pleas: 822,369 and attorneys to examine case characteristics and jury behav- ior across dispositions (hung or verdict) and compare hung jury rates across jurisdictions using comparable definitions.

2 Paula L. Hannaford-Agor et al., Are Hung Juries a Problem? National Center for State Courts, at http://www.ncsconline.org/WC/Publications/Res_Juries_HungJuriesPub.pdf.

National Center for State Courts • Brian J. Ostrom, Project Director • Nicole L. Mott, Neal B. Kauder, Brian J. Ostrom, and Paula L. Hannaford-Agor, Authors May 2003 A Profile of Hung Juries, continued

How Often Do Hung Juries Occur?

Past reports are scarce, but time and between localities. Compared to the state rate of It should be noted that the suggest considerable variation The first phase of the cur- 6.2 percent, the federal hung federal D.C. Circuit Court in rates of hung juries. In rent NCSC study confirms jury trial rate for criminal reports a much higher hung 1966, Kalven and Zeisel re- these earlier findings. The cases averages 2.5 percent. jury rate of 9.5 percent (a ported an average criminal average hung jury rate across The federal Administrative clear exception to the other hung jury rate of 5.5 percent all 30 sites was 6.2 percent, Office of the Courts’ central- 11 federal districts). One nationwide of all jury trials.3 with slightly higher rates ized data system makes it potential explanation for this The only other empirical study ranging from 8 percent to possible to examine federal difference is the demographic of hung jury rates was con- 14.8 percent in 5 of the 6 rates over time. The trend characteristics of the court’s ducted in 10 California coun- California counties. The lines below show fairly jurisdiction; the D.C. court is ties in 1975 by the Planning figure below displays the stable rates from 1980 to the only federal circuit court and Management Consulting individual jurisdictional rates 1997 for both civil and that comprises a single, Corporation.4 They reported a and shows the variation criminal trials. highly urbanized city. All 12.2 percent hung jury rate, across counties. other federal circuits encom- with significant variations over pass multiple states. 3 Harry Kalven & Hans Zeisel, THE AMERICAN JURY 453 (1966). 4 Planning & Management Consulting Corporation, Empirical Study of Frequency of Occurrence Cases Effects and Amount of Time Consumed by Hung Juries, 4-30 to 4-37 (1975).

State Hung Jury Rates (Average 1996-1998) Federal Hung Jury Rates (1980-1997)

Los Angeles, CA 4% Shelby, TN Alameda, CA Travis, TX 3% New York, NY Criminal Riverside, CA

Santa Clara, CA 2% Fresno, CA Total Harris, TX Wayne, MI 1% Civil Middlesex, NJ Dallas, TX Kings, NY 0% Westchester, NY 1980 1984 1988 1992 1997 Erie, NY Queens, NY Pima, AZ Bronx, NY Suffolk, NY San Francisco, CA St. Louis, MO Monroe, NY Nassau, NY Philadelphia, PA Macomb, MI Hennepin, MN Fulton, GA Pinellas, FL Oakland, MI Pierce, WA 0% 3% 6% 9% 12% 15%

Note: Differences exist in the way courts calculated hung jury rates. A Closer Look at Four Large Courts

Most courts do not systemati- yields lower rates. To make a hung on the most serious What Characterizes cally track hung jury out- fair comparison, in-depth charge facing the defendant in Hung Juries? comes in their automated data from the four sites were about 10 percent of the cases. case management systems. examined using three defini- To better understand the Many courts do not consider tional “levels”—determined Hung jury rates varied across circumstances and character- a hung jury to be a final if the jury hung on: the jurisdictions regardless of istics of hung juries, numer- disposition, but rather an 1. Any count against the which definition was used. ous social and legal factors intermediate case status. To defendant Rates of hung juries were were analyzed across the overcome difficulties of com- 2. The most serious count highest in the D.C. Superior four selected sites. NCSC parisons, NCSC obtained against the defendant Court at about 22.3 percent, examined demographic fac- detailed data on 382 felony 3. All counts against the followed closely by Los An- tors such as juror race and jury trials from Los Angeles, defendant geles County at 19.5 percent. general juror attitudes on CA; Maricopa, AZ; Bronx, Rates were lowest in the such issues as police, courts, NY; and the District of Co- As seen below, the first defini- Bronx Supreme Court where and crime in the community. lumbia.5 Los Angeles and tion yielded the highest ratesÐ just three of 97 jury trials Specific attitudes relating to D.C. participated in the study almost 13 percent of the juries ended in a hung jury (3.1 per- the case at hand—law, evi- due to concerns over high hung on at least one count. cent). In these three cases, dentiary issues, and interper- hung jury rates, Maricopa’s The most restrictive defini- the jury hung on all counts sonal small-group dynam- participation allowed NCSC tion, where the jury hangs on faced by the defendant, so the ics—were also analyzed and to evaluate recent trial inno- all counts, occurred in 7.5 hung jury rate was identical found to be especially criti- vations, and the Bronx courts percent of the cases. Juries across all three definitions. cal in predicting the likeli- were solicited, in part, due hood of a hung jury. to the high volume of trials. Thus, these four sites were Hung Jury Rates in Four Sites The legal fairness, eviden- not intended to be representa- tiary, and jury dynamic tive of courts nationwide. Bronx 3.1% 3.1% issues are discussed on Hung on all counts 3.1% the following two pages. Definitional differences are Hung on most serious count one reason hung jury rates Hung on any count Maricopa 3.3% vary. That is, a broader defi- 5.1% nition captures higher rates, 7.7% while a more restrictive one Los Angeles 11.7% 16.2% 19.5%

District of 12.8% 5 The courts and corresponding dates for data Columbia collection were as follows: the Central 16% Division, Criminal, of the Los Angeles County 22.3% Superior Court, CA, JuneÐOctober 2000; the Maricopa County Superior Court (Phoenix), AZ, November 2000ÐOctober 2001; the Bronx County Supreme Court, NY, FebruaryÐAugust 2001; and the Superior Court of the District of All Sites 7.7% Columbia, AprilÐAugust 2001. 10.1% 13.2% Legal Fairness Jury Demographics and Attitudes LA Maricopa Bronx DC Both popular culture and Hung Verdict Hung Verdict Hung Verdict Hung Verdict recent commentators paint a Race/Ethnic Diversity of Jurya .73 .71 .35 .36 .70 .63 .51 .53 vivid picture of a hung jury characterized by a holdout Juror Attitudes b juror engaged in race-based Trust in Police 5.0 5.3 5.6 5.7 4.8 4.6 4.7 4.9 Trust in Courts 5.3 5.6 5.7 5.7 4.8 5.2 5.2 5.3 jury nullification. Nullifica- Fairness of Legally Correct Outcome 4.5 5.8 4.2 5.6 3.9 5.3 4.8 5.2 tion occurs if one or more a Diversity ranges from 0 = least diverse (e.g., all-white jury) to 1 = most diverse (e.g., one juror of each racial/ethnic category). Categories include: jurors intentionally disregard Black/African American, White/Caucasian, White/Hispanic, Nonwhite/Hispanic, Native American, Asian/Pacific Islander, and other. the law or vote to acquit a b On a scale of 1 to 7, 7= a great deal or very fair. defendant despite the evi- dence. The adjacent table Evidentiary Issues neither judges nor attorneys Percent of Juries that Hang, shows that although specific found hung jury cases to be by Ambiguity of Evidence as Do cases with complex evi- juror intentions (e.g., holding more complex than verdict Assessed by Jurors dence or legal instructions out due to racial issues or cases, suggesting that judges make it more difficult for Most Ambiguous general distrust of police) are and lawyers may consistently jurors to reach agreement? 24% difficult to ascertain, the underestimate the level of Previous research suggested diversity of the jury’s racial case complexity as compared Somewhat Ambiguous that closeness of evidence 13% makeup did not predict to the jurors’ perspective. plays a significant role in whether the jury would hang. Generally, judges and attor- Less Ambiguous hung juries.7 The bar chart Even though it was not pos- neys rated the jurors’ com- 10% to the right shows further sible to determine defini- prehension of legal and evi- Least Ambiguous support that evidence was tively if individual jurors dentiary issues high. How- 0% most ambiguous in hung juries consciously or deliberately ever, once the jury hung, (i.e. did not favor one side). refused to agree on a verdict judges and prosecutors ex- due to perceptions that the pressed concern of jurors’ Juries that hung on at least legally correct outcome was abilities. Of course, attor- one count noted that the case unfair, jurors who hung be- neys and judges provided was more complex and diffi- lieved the outcome was less the ratings after the jury cult than did juries that fair than did jurors who declared a verdict, so per- reached a verdict (see table reached a verdict. Specific haps some reflection was below). Yet interestingly, attitudes of legal fairness done in hindsight. varied, yet there were no 7 Supra note 2. significant differences be- tween hung and verdict ju- ries regardless of demo- Does the Perceived Complexity of Evidence Relate to Hung Jury Rates? graphic factors or general Complexity of Case perceptions of trust of the Verdict Juries Hung Juries courts or police.6 Juror Responses How complex was this trial? 3.57 4.13 * Judge Responses 6 The average ratings by hung juries in the How complex was the evidence presented at trial? 2.53 2.52 Bronx are to be read with caution, as only How complex was the law? 2.82 3.20 three juries hung in the Bronx. Attorney Responses How complex was this trial? Prosecutor 3.20 3.39 Defense 3.18 3.34

The numbers represent values on a 7-point scale (1= least complex to 7 = most complex). * The difference between the two outcomes was statistically significant. A Closer Look at Four Large Courts, continued

Interpersonal Jury Dynamics

In general, jurors tend to per- more evenly split, the case deliberations. Typically, Although mandating certain sist in their early opinions was more likely to hang. jurors focus either on secur- procedures for conducting about defendant guilt or inno- ing a verdict in deliberations deliberations may be viewed cence. More often than not, Although serving on a jury or on assessing the evidence. as an invasion of the jury’s the jurors’ first vote in delib- sometimes bonds jurors to- The former orientation is province, providing jurors erations is the same as the gether on a personal level, more characteristic of hung with guidance to structure the jury’s final group decision. interpersonal dynamics may juries than verdict juries. process might prevent some The graphic below shows that also cause contention. For Declaring a vote to other group and individual juror when jurors first leaned to- instance, hung juries were jurors solidifies the opinion behaviors that relate to jury ward acquittal or conviction, more likely to report that one as compared to deliberations deadlock. For example, the their final decision was likely or two jurors had dominated in which jurors delay a for- court may suggest methods to be consistent with their the discussion in delibera- mal vote and focus their for resolving conflicts effec- earlier opinion. However, if tions. Group dynamics also discussion on the evidence. tively and conducting ballots. on the first vote jurors were shape the way jurors conduct

Jury Decisions in Four Districts Ð From First Vote to Final Vote 53% 49% 49% of juries acquitting on final First Vote vote were strongly leaning towards acquittal on first vote Strongly leaning towards acquittal 36% Slightly leaning towards acquittal 28% 28% Evenly split 22% 21% Slightly leaning towards conviction 16% 15% Strongly leaning towards conviction 7% 8% 6% 4% 4% 2%

Acquitted Hung Convicted Final Vote

Summing Up: What Factors Relate to Hung Jury Rates?

Factor Related? How?

Demographics & Jurisdictions Locality demographics yes Evidence of urban rates higher, such as for DC Federal Circuit Court. Racially diverse jury? no Differences in racial makeup by jurisdiction, but no difference for hung/verdict juries. State (more likely) vs. Federal (less likely) yes Federal court rates lower than state courts, possibly due to case mix and attorney resources.

Complexity Number of charges yes More charges increase likelihood that jury will hang on at least one. Yet juries with fewer charges to consider more likely to hang on all charges. Quantity of evidence no Length of trial no Level of case complexity yes Hung cases were more complex for jurors, but not according to judges/attorneys.

Evidence Ambiguity of evidence yes Close-call cases more likely to hang. Police credibility yes Hung juries disagreed more often on believability of police testimony. Defendant believability yes Hung juries thought defendant was less believable. Attorney skills yes Judge rated defense attorney skills as more favorable in hung jury cases.

Deliberations Timing of the first vote yes Juries were more likely to hang if they voted early in deliberations. Structure of deliberations yes Verdict-driven more likely to hang as compared with evidence-driven discussions. Interpersonal dynamics of jury yes Hung juries report more conflict and more unreasonable jurors. Jurors’ perception of unfairness of law yes Hung juries thought legally correct outcome and law were unfair. Conclusion

There will always be cases The data from this project for jurisdictions with high Group Dynamics in which juries are unable suggest that hung jury hung jury rates: Offer guidance on selecting to reach consensus. The rates may be reduced by presiding juror, conducting current work has provided paying attention to evi- Evidentiary Issues ballots, and resolving con- flicts, as many jurors lack valuable data on how often dence strength and charging Facilitate learning process for previous experience in small- jurors hang and whether, decisions, focusing on fair- jurors by providing note- books, plain-English instruc- group problem solving similar as some commentators con- ness of the law as applied tions, copies of instructions to deliberations. tend, jurors hang due to in individual contexts, and for jurors and allowing jurors These goals improve the illegitimate reasons. We determining how courts to take notes and ask ques- likelihood that juror dead- know that, on average, state may guide jurors in tions during evidence presen- lock will only take place in court jurisdictions have deliberations. tation/testimony. cases in which the evidence hung jury rates of about is so closely matched that 6.2 percent. The data also A summary table of what Legal Fairness reasonable members of a show that rates vary consid- characterizes hung juries is Prosecution should evaluate jury can disagree about a erably due to definitional displayed on the previous charging decisions for cases with ambiguous evidence and case outcome. While this standards and from jurisdic- page. In addition, the cur- prepare to offer corroborating may not be the preferred tion to jurisdiction, from a rent study proposes the fol- evidence in trials relying result, it helps preserve the low of 3 percent to a high lowing goals and recommen- heavily on police testimony. traditional role of the jury in of 22 percent. dations to courts, especially the American justice system.

The Court Statistics Project (CSP)

In existence since 1975, the CSP is administered by the Committee. Those wishing a more comprehensive review National Center for State Courts, with generous support by and analysis of the business of state trial and appellate courts the Bureau of Justice Statistics. The CSP receives general are invited to read the CSP’s latest publication, Examining policy direction from the Conference of State Court Ad- the Work of State Courts, 2002. ministrators through its Court Statistics Project Advisory

Non Profit Org. U. S. Postage CASELOAD HIGHLIGHTS PAID Richmond, VA Permit No. 750 NCSC President NCSC Vice President National Center for State Courts Roger K. Warren Research Division Victor E. Flango 300 Newport Avenue Williamsburg, VA 23185-4147 Court Statistics Project Staff Research Division Brian J. Ostrom, Director 800/616-6109 Fred L. Cheesman, II, Senior Court Research Associate Neal B. Kauder, Consultant, VisualResearch, Inc. Robert C. LaFountain, Court Management Consultant Nicole L. Mott, Court Research Associate Shauna M. Strickland, Court Research Analyst Brenda K. Uekert, Senior Court Research Associate Brenda G. Otto, Program Specialist

Points of view expressed herein are those of the authors and do not necessarily repre- sent the official position or policies of the Bureau of Justice Statistics. BJS