What is Deliberation in a Judicial Context?
Employed in the context of a judicial proceeding, deliberation may refer to the time period during which a tribunal, such as a factfinder, judge or jury, must wait before actually pronouncing an adjudication in order to allow adequate time for the critical evaluation of information collected and processing for analytic and evaluative purposes. See, e.g., Commonwealth v. Kubera, 8 Mass. App. Ct. 32, 393 Mass. 54 (1979) (jury verdict in possession of illegal firearms charge and subsequent sentencing of ten months in prison for defendant were overturned sixty years after sentencing because jury was not given appropriate deliberation period of six hours). For example , the Fourteenth Amendment requires that criminal defendants be tried by an impartial jury of their peers, which, when seated, must be allowed sufficient time to arrive at a verdict. See, e.g., Williams v. Florida, 399 U.S. 78 (1970); Turner v. Louisiana, 379 U.S. 466 (1965). A jury must also take time to deliberate before returning a guilty verdict. See, e.g., Commonwealth v. Brown, 147 Mass. 66, 66-67 (1888). Most courts have thus implemented rules to ensure that juries have considered a verdict before returning it. See, e.g., Mass. R. Crim. P. Rule 27 (2012) ("A verdict shall not be received from the jury . . . until after the jury shall have deliberated for at least [six] hours."); see also Mass. G. L. c. 234, § 29.
The Deliberation Process for Jurors
At the conclusion of the evidence, the judge gives instructions to the jurors to guide their deliberations. Jurors may only consider the evidence presented at trial and the jury instructions in reaching a verdict. In criminal cases, jurors must decide whether, based on the evidence presented, the defendant is guilty or not guilty. Here, the burden rests with the government to prove that the defendant committed the crime charged. The government must prove each and every element of the crime beyond a reasonable doubt. In civil cases, the judge will instruct the jurors concerning the issues that they must resolve. In these cases, the burden rests with the party seeking damages to prove its case by a preponderance of the evidence, in other words, that is more likely than not that it occurred.
The judge may send written copies of the jury instructions into the jury room with the jurors to refer to during deliberations. It is common to have written copies of proposed jury instructions exchanged and filed with the court prior to charging the jury, but the judge ultimately has the discretion to pick and choose which instructions to give or to craft his or her own. Many times, the written instruction are not sent to deliberating jurors, but rather are read to them before they begin their deliberations. Either way, jurors may take handwritten notes of testimony which may be provided to them while they are deliberating.
The Factors Behind Deliberation
Several factors can influence the deliberation process, and therefore the final outcome as well. The complexity of a case, such as technical or scientific complexities or underlying concepts that are hard to grasp, can lead jurors to become confused when trying to determine which side can prove the burden of proof. Jurors may also struggle when it comes to understanding jury instructions. That said, jury instructions must be neutral, unbiased, and impartial. However, if a judge is charged with bias or partiality towards one side over another, such bias can be evident in the instructions, even if inadvertently. Often, the language of jury instructions may unintentionally assist one side when they should be neutral.
It’s always important to keep group dynamics in mind. When jurors enter the deliberation room, they are faced with the task of working together and coming to a consensus in order to reach a verdict. Groupthink occurs when jurors or members of a group work to reach a consensus without questioning whether the decision is the right one. Groupthink often leads to an incorrect verdict due to pressure on jurors to conform in any way so that the group can move on from deliberations. It is important for trial attorneys to ensure that their case strategy includes instructions and procedures for dealing with groupthink in order to avoid it and to ensure their client receives the best verdict possible.
Communication and juror demographics, such as sex, age, and race can also have an impact on the deliberation process. These myriad social factors can alter how groups communicate and how group members behave within a group setting. The communication habits of jurors may also be impacted by their ethnic background, upbringing, education, and gender. These habits can subsequently influence the deliberation process.
Deliberation and Other Processes in Court
Deliberation is distinguished from other court processes such as pre-trial conferences or even discussion in the chamber. While the latter might touch upon issues like case management or speak about the importance of settlement, deliberation is more specific and must relate to the weight or quality of the evidence that has been heard. In my experience, the courtroom is a poor setting for deliberation. The courtroom is not conducive to deliberation between judges. So, the importance of the confidentiality of the deliberation process may be one reason why the judges do not choose to deliberate in the courtroom. Judges do not like to be distracted by the possibility of being overheard when deliberating. Being overheard, even for judges, can lead to the perception of bias and later be used as an evidentiary sword.
The deliberation process can be a checking mechanism, to insure that no judge is exorcising too much influence on the other judges. Just imagine a situation where the deliberation is not a separate process, but is rather done in full view of parties. Then, say, a monopolistic judge was pushing a particular opinion, the other judges would then be vulnerable to the perception that they were being unduly influenced or swayed by that judge. Conversely, keeping the deliberations a secret is a way to protect the other judges from the possibility of a monopolistic judge’s influence.
So deliberation is a completely different court process than just talking to each other.
Deliberation Challenges to Jury Decision Making
Given the high-stakes nature of many legal proceedings, it’s hardly surprising that challenges to juror impartiality and fairness have been the subject of significant litigation. Indeed, questions about the reliability of juror deliberation must be viewed in light of the fundamental principle of jury secrecy, which has increasingly come under attack.
One recent example of such an attack is the United States Supreme Court’s decision in Pena-Rodriguez v. Colorado, dealing with a state procedural rule that prevented inquiry into juror bias or prejudice at the behest of a criminal defendant after the case has closed. In Pena-Rodriguez, four minority jurors alleged that racial stereotypes had influenced the jury’s determination through comments made by a juror during the deliberations. The Colorado Supreme Court rejected the allegations, citing concerns that allowing an "automatic" judicial review of jurors’ deliberations would interfere with the jury’s ability to perform its functions.
The United States Supreme Court reversed and held that, in limited circumstances, inquiry would be permitted in order to vindicate the constitutionally protected rights of a criminal defendant. In reaching this decision, the Court acknowledged that the very act of impaneling a jury necessarily involved some risk of juror bias. At the same time, it recognized that deeper concerns are implicated when a racial or ethnic stereotype is "used as a basis for the decision." The majority further observed that "[o]pting for a blind spot [regarding the possibility of racial prejudice] is not the solution" to this problem, and placed particular emphasis on the procedural safeguards courts could take to prevent such bias from invading the jury room.
The facts of Pena-Rodriguez suggest the broad scope of issues that can affect jurors’ impartiality, from conscious prejudice to more subtle attitudes and perceptions. With respect to conscious prejudice , the juror in the case had allegedly commented that he believed the defendant was guilty because he was "Mexican," and another juror testified that the comments reflected "basically racism." In regard to more subtle issues, the defendant claimed that the comments revealed concerns about the perceived lack of acculturation of recent Mexican immigrants.
Although the Pena-Rodriguez decision is in part based on concerns unique to the criminal justice system, the underlying issue of maintaining conditions for fair and impartial deliberations applies equally to civil cases. As one lawyer has aptly pointed out, "[t]he right to unemployment insurance benefits or to recover for discrimination or negligence may impact people’s lives for a long time." If racial or ethnic bias infects a jury’s decision, the consequences can be equally devastating to the defendant and the public who place their faith in the jury system.
Pena-Rodriguez is highly instructive regarding the various anti-bias measures courts can utilize to promote fair and impartial juror deliberations, and a great resource for social science research on the topic. For example, the Court noted that jurors can be directly questioned about racial or ethnic prejudice; courts can give tailored instructions to the jury before deliberations on the topic of racial and ethnic issues; and jurors can be given explicit, detailed instructions to avoid use of group bias as the factor influencing a decision.
The decision deserves to be viewed as a turning point, because it helps defines the boundaries of permissible inquiry in race- or ethnicity-based prejudice, and provides a road map of best practices courts can adopt to prevent these issues from arising in the first place. In addition, it signals more attention is being paid to the evidentiary concerns, such as whether the juror’s testimony should be excluded under Fed. R. Evid. 606(b), that arise when confronting allegations of bias and prejudice in the context of jury deliberations.
The Role of Technology on Deliberation
Digital evidence and virtual deliberations are some of the effects that modern technology has on deliberation. The growing prevalence of digital materials has led to changes in how jurors and other members of the public handle such evidence. Beyond simply understanding how to use a computer or phone, jurors are required to learn to access and understand how to present digital evidence such as charts, graphs and videos in a court of law. Considering the century we live in, where most of the general populace owns at least one electronic device, it is easy to see how this could lead to issues with deliberations.
Just like any form of evidence, digital material is subject to rules and regulations. If the physical evidence is tampered with or otherwise understood improperly, it can throw off the jury’s comprehension and lead to bias. Additional issues that have been noted involve jurors using their smartphones—in some cases using them to Google things that were part of the case while others use it to participate in social media to discuss the court. This is highly frowned upon, as it can lead to mistrials.
While jurors are not supposed to be communicating with outside influences while a case is underway, relaying verdicts has also been made easier thanks to the increased usage of technology. Cases are now decided through a webpage or app, rather than having to be read out loud as they once did. The advent of text messages, emails, and video conferences has made it easier than ever to reach out and communicate with jurors on the decision of the case.
These daily reminders of the outside world—which is ever changing—are sometimes hard to avoid, leading to situations where jurors cannot help but be influenced by these extra aspects of the case. Overall, it is still the judge’s responsibility to ensure that jurors do not have any outside influences that affect their verdict. There is a fine line between complete seclusion and partaking in outside information that is necessary for deliberation on a trial, especially given the ease with which jurors can access and share information while on a jury.
How to Streamline the Deliberation Process
In recent years, courts have begun to examine the possibility and potential benefits of alternative deliberation methods. One possibility includes the use of technology to facilitate deliberation by allowing jurors to collaborate and exchange information through electronic systems. These systems may enable jurors to access information and evidence in a way that allows them to work remotely or collaboratively, reducing the need for travel to and from the courthouse.
Another area of reform involves the idea of simplified verdict forms, which may help streamline the deliberation process by presenting jurors with clear and concise questions that can be answered in a straightforward manner. This approach seeks to focus the deliberation process on the key issues that need to be decided in order to render a verdict. By reducing the number of questions and simplifying the language used , simplified verdict forms may reduce misunderstandings and errors.
A third area of exploration is the use of alternative dispute resolution (ADR) techniques, such as mediation and early neutral evaluation, that may be adopted by courts to help manage the deliberation process. These techniques have been shown to facilitate consensus-building among parties, reduce hostility, and help arrive at a resolution more quickly.
Looking ahead, it is likely that continued efforts will be made to ensure that the deliberation process remains a fundamental component of the justice system and that jurors are given the tools and support necessary to reach a fair decision in each case. Juror surveys and feedback will likely continue to play a critical role in informing deliberation reform initiatives so that they are shaped by the juror experience itself.