Deliberations is an interesting jury consultant blog that has commented recently on hung juries and how to prevent them. But why? What’s wrong with a hung jury? (Other than that tort lawyers who work for a percentage of the take earn nothing, that is, and, I suppose, the jury consultants on both sides are discredited.)

The more I think about chess as an analogy for jury trials, the more I’m becoming convinced that a hung jury is the optimum outcome of a trial, whether it’s in the criminal or civil court.

In chess, as evidenced by the current World Championship match between V. Anand and V. Topalov in Sofia, Bulgaria, the best games are those that end in a draw. In chess a draw indicates the players were evenly matched and neither one blundered themselves into either a disastrous loss or a self-defeating stalemate.

In a courtroom trial, if both sides were equally strong (as in a chess championship match), the jury would be unable to decide between the two. Of course, a long-standing principle of law is that in a criminal trial the defense is presumed to be in the right until the prosecution proves otherwise.

Unlike chess, the two sides are never equal in the beginning. And that’s the fundamental weakness in the American jury system, a weakness that’s bound to bring the whole system to a screeching halt very soon. Face it, we have a prison population that’s about 1% of the total population of this country (infants and children included). Our courts are so over-crowded that in some states convicts wait more than five years for their appeal to be heard or decided. Criminal trials rarely take place within a year of the crime (are rarely “speedy,” in other words).

What Is a Hung Jury?

A hung jury is more than merely a jury that can’t agree on a verdict. It’s a jury that has heard all the arguments and evidence, has had the judge admonish them at least once to try to reach a verdict, and has deliberated (probably intensely). After all that effort, at least one juror is unconvinced of the prosecution’s or plaintiff’s case.

What’s wrong with this? Nothing—other than the costs to the taxpayers of the justice system. The taxpayers have a right to say that a hung jury indicates something went wrong somewhere because otherwise the jury would have reached a verdict.

Consider the situation in which a murder trial ends in a hung jury (usually with only one or two holdouts). The judge and prosecution tend to consider this to be a failure of the jury and perhaps of the entire jury system. The defense considers this to be a minor victory; if it so chooses, it has survived to try again. But it also means a huge amount of public money has been spent to bring a murderer to justice and still hasn’t managed to do it. If the defendant is held over to the next trial in jail and is innocent, his rights have been violated. If he’s guilty and out on bail, he’s liable to skip town.

American citizens ought to consider such a hung jury to be a victory for justice but a failure of the justice system. What failed was the police investigators to find sufficient evidence, the prosecution to formulate appropriate charges, and the judge to ensure that everything was clear to the jury. The only times a jury should find a not-guilty verdict or hang is when the defendant is completely innocent or there’s insufficient proof of guilt.

To be continued . . .