Conformity, Peer Pressure, and Bee Decision-Making in Jury Deliberations

The National Center for State Courts’ interesting white paper on hung juries suggests that the principal cause of deadlock may be poor-quality evidence, but in addition some approaches to the deliberation process may be toxic, especially 1) taking a vote in the first 10 minutes of deliberations “just to see where things stand” and 2) a single, overbearing juror.

This juror is puzzled that:

  • courts don’t provide jurors with guidance on how to deliberate.
  • poor-quality evidence doesn’t result in acquittals rather than hung juries.

Hanging Alone

Recently some interesting psychological and scientific research has explained a good deal about how a group of twelve jurors reaches a common verdict—and why hung juries tend to be heavily weighted toward one side or the other, rather than evenly split.

A Jury of One’s Peers

A jury of the defendant’s “peers” aren’t necessarily peers themselves. To put it simply, a jury is a group of strangers with little if anything in common. As a result, I don’t think it’s appropriate to worry too much about the effects of peer pressure in jury deliberations. Instead, a more-relevant psychological phenomenon is “conformity,” and especially something psychologists call “informational conformity.”

In the early 1950s psychologist Solomon Asch conducted a series of experiments in which college students were asked to participate in a fake vision test involving graphics depicting bars of differing lengths. All but one student was a “plant.” The plants all told a man in a white coat that some of the lines were the same length even when they obviously weren’t. Generally only about one-third of the unwitting students stuck to their guns and said the lines were not the same length. Two-thirds conformed to the planted group of students who lied.

In other words, in a group of twelve strangers, only about four will stick to their view of the evidence when the other eight disagree with them. That means during jury deliberations in which the evidence is confusing or ambiguous, if a minority recognizes this as “reasonable doubt” they must be capable of withstanding the human tendency to conform with the majority.

Since the Asch experiments used graphics involving the lengths of lines, it seems appropriate as a model for what happened in the Trooper Higbee trial, where the sides presented photographs and graphics dissecting the distances the trooper’s car traveled in the final six seconds before the crash. The jurors even requested a ruler or yardstick during deliberations: clearly they were measuring the length of something. Clearly the lengths looked different to at least one of the jurors.

The Asch experiments also remind me of the jury in the NM trial of Brandon Craig. After the trial, the foreperson reported that 8 jurors thought the defendant was guilty, but the other 4 convinced them there was reasonable doubt.

Groups, Nominal Groups, and Teams

Once upon a time when I was a “management consultant” in the field of training, I spent a huge amount of time on the “nominal group technique” and “team-building.” It’s been such a long time since then that I really can’t recall the sources of my information on this topic, so I’ll just say this: I believe every group of people isn’t a team, and just because you’re thrust into a random group it doesn’t make you a stakeholder in the outcome of the group decision-making process. So, I have always thought of “nominal group technique” as a means of decision-making for groups that are “groups in name only”—such as juries. (I’m probably wrong. This is probably a false etymology.)

The point is that a jury has to reach a critical decision with life-and-death consequences—in a very short period of time. No group can do this without a good framework. The jury foreperson is critical: he or she must guide the discussion productively. That means the foreperson must know something like the nominal group technique—or the deliberations will be chaotic and likely dominated by only one or two jurors.

Swarm Savvy

Recently, an article by Susan Milius in Science News suggested to me a good process for jury decision-making: do it like the bees do.

Briefly, scientist Tom Seeley of Cornell University has studied how a hive of bees decides on the site for a new hive. Apparently bees develop a consensus based on an iterative process that favors the best options. (They know the mathematical theorem that proves two heads are better than one—oddly enough called Condorcet’s Jury Theorem.) Here’s how it works:

  • Worker bees spread out over the landscape looking for knot holes in trees. When a worker bee finds a good site, she returns to the central hive and indicates her degree of enthusiasm for the new site. The other bees evaluate the numerous returning workers. If one worker bee makes a good “presentation” then one or more other workers will follow her back out to the proposed new site. If these other workers conclude the first worker’s proposed new site is better than the ones they found, they return with the first worker to the central hive and promote the same site. Eventually, everyone agrees on a new site, which has proven itself to be the best site among all the options.

This process is actually the process used in BBC’s The Jury, a miniseries set in the Old Bailey—and which I highly recommend for its intelligent presentation of jurors. In the drama, the jury is split along the 4-to-8 lines anticipated by the Asch experiment. A leader (not the foreperson) suggests they break into small groups of three or four, each with one of the minority jurors who then have an opportunity to try to convince only two or three others, not the whole eight. After a time, they regroup and repeat the process until the majority of eight becomes a minority of two. (In England, murder cases can be settled by a majority.)

The advantage to the “swarm savvy” approach to jury deliberations is that it permits the best ideas to emerge by slowly gaining adherents. A group of three people is a better forum for the airing of competing ideas than is a group of twelve. Once the small group has reached consensus, it must “go forth and multiply” by convincing others in a small group setting. No single, highly-opinionated person can dominate the conversation of all twelve people, because he or she can only address a small subgroup at a given time.

Deliberation Hell

I only sat through about four hours of jury deliberations, but those were incredibly uncomfortable hours. I never had my say. The conversation was dominated by a young woman who seemed to have a nervous tick about the meaning of “carrying from one place to another place.” The foreperson provided zero guidance.

We sat around a long narrow table, so we could see the faces of only two or three other people. Occasionally an item of evidence was passed around and each of us was required to comment on it. It was madness. The more I think back on it, the more mistakes I see we made.

I’m only guessing, but I guess the Higbee jury is enduring something like that now. I suspect at least one juror didn’t buy either the prosecution’s or the defense’s distance calculations—or both. And at least one juror is hung up on the word “approaching” which at one point Trooper Higbee used in his testimony: unfortunately he never supplied the direct object, as in “I remember approaching, braking, and darkness . . . .” Approaching what? The intersection, the stop sign, the white van, the speeder’s tail lights.

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