A comment on this blog yesterday mentioned the length of time it took the jury in South Carolina v Rye to find the defendant Grover Rye not guilty. The length of deliberations in the trial did not surprise me, though. Because of case law and common law traditions, deliberations in every case should take at least four hours, in my opinion (I am not a lawyer). In some ways this is a good thing; in others it is not.

What Happens During Deliberations?

Judges make it very clear to jurors that they must not make up their minds until after they have deliberated. (This is a good thing.) So, even in the most slam-dunk case, a jury needs time to follow the judge’s instructions. (The O. J. Simpson jury, for instance, took four hours to find him not guilty after a very lengthy trial, even though the jurors later reported that they had decided the case very quickly.)

1) When a jury goes into the deliberation room, the first thing they do is choose a foreperson. This isn’t as easy as it might sound. Jurors know very little about each other. Several people may volunteer (a bad idea, IMHO); several people may nominate someone else.

2) Once a foreperson is chosen, she has to figure out what to do next. The judge doesn’t explain what it means to deliberate, just how to follow the verdict form, which is a nightmarish document.

I suspect that in most cases the foreperson reads through the jury instructions (if the judge sends a written copy into the deliberation room with the jury). In South Carolina v Rye (version 1), the instructions were seriously flawed; so in the retrial I imagine the judge was meticulous both in preparing and reading the instructions. Detailed instructions are lengthy and arcane. If a jury has to read through them, that alone takes an hour or more.

3) Even if there are no written jury instructions, there is always a lengthy verdict form, which the foreperson uses as a map for deliberations. Most people probably assume a verdict form is simple: check box A or box B. In fact, the verdict form is the judge’s interpretation of and restatement of the state’s laws. It is laid out like a decision tree and in the negative: if A and not B, then check box A1.1. If A and B, then check box A1.2. It’s maddening, like an income tax form only worse: if you check the wrong box, somebody could die.

My guess is that in most trials the bulk of the time is spent in an effort to translate the verdict form into logical, plain English.

4) At some point, everyone on the jury is given a chance to express his or her opinion. (A natural tendency is to take a straw poll at first; but even if everyone agrees on a verdict, they have promised to deliberate.)

Some people say “I agree with what has been said” and nothing else. Few Americans are comfortable speaking in public. Since a jury is a crowd of the public, it isn’t as easy as some of you might think for the rest of us to “speak our minds.”

But some people like to hear themselves talk, and they interpret the judge’s instructions “to deliberate” as a mandate to deliver a lecture.

5) Eventually, the foreperson asks if everyone’s ready to vote. Most jurors will say “yes.” But one or two may say, “I’m not so sure yet.” When that happens, the “roundtable discussion” is repeated with everyone saying exactly what they said before.

S. Carolina v Rye Deliberations

Believe me, if you’re on trial you don’t want the jury to take an hour or less to deliver the verdict. You want them to give serious thought to the issues.

In the Rye trial I see several issues that could have given the jury pause. First, of course, is the sad fact that someone died of gunshot wounds. That in itself is enough to require serious discussion. Anyone who values human life would want to be very sure Mr. Rye did not act out of anger and vengeance.

The second issue that had to be considered was the fact that he returned to his property after making a 911 call in which he said he would wait for the sheriff in his car, but instead he got a gun and went in the direction of the sound of gunshots.

Both of these issues were expressed in the verdict form as to the laws of self-defense and defense of habitation. That means the jury had to take enough time to discuss these complex issues. Even a juror who felt as I do that the deceased was behaving like a police thug would have to consider these issues carefully: just because someone is behaving badly is no excuse for behaving badly yourself. That’s the whole purpose of law.

Why Jury Duty is Frustrating

If I were on the Rye jury I would have been seething by the time I went into the deliberation room, because of what was NOT said in court. As far as I can tell, no mention was made that the deceased was a cop who was breaking the law (the defense pointed out only that he was breaking the law, not that he was betraying his oath of office) or that the entire law-enforcement establishment of the county appears to have colluded in a cover-up.

But the Rye trial is not unusual in this regard. Case law forces the courts to present evidence in this distorted way. No jury ever hears the truth, the whole truth, and nothing but the truth.

One of the common law principles at work in American trials is that the “jury is the finder of fact, not of the law.” This principle is fundamental to the way evidence is presented in American courts. It is also a principle that derives from an early-modern understanding of natural law.

Even the term “natural law” has evolved significantly since the time the Constitution was written. And since this is my expertise (the history of the English language), I will restrain myself for now. The concept of “finder of fact” deserves at least one blog post of its own.