I was recently fortunate enough to participate in a conference at John Jay College of Criminal Justice on the Future of Jury Research, organized by Professor Margaret Bull Kovera and sponsored by the National Science Foundation. As so often happens at small conferences, the discussions were lively, interesting, and wide-ranging. Everyone--speakers, discussants, and audience members--made valuable contributions to the discussion, so I am loath to single anyone out for having made a really good point, for fear of leaving out others. Rather, I offer the following general observations:

Jury research is a vibrant field. There were several indications of the field’s overall health. First, the conference attracted a veritable “who’s who” of jury researchers, ranging from several who conducted some of the first landmark studies in the 1970s and ‘80s to a number of junior researchers and graduate students. Second, the jury system and related systems using lay judges are spreading globally, having recently been adopted or expanded in several countries, such as Japan, South Korea, and Russia. These developments raise a host of new and interesting questions for researchers to address. Third, there were researchers from a variety of disciplines (e.g., psychology, law, criminology, sociology), who represented academics and practitioners, and who use diverse methodological approaches.

The bar is being raised. (Almost) gone are the days when we could use college students as mock jurors and have them read a very abbreviated summary of a trial and then ask them questions that real jurors would not answer, such as rating a defendant’s blameworthiness or sentencing a non-capital defendant. Such research can still address important and interesting psychological questions, and research on whether the “verisimilitude” of a jury simulation makes that much of a difference is inconclusive; but most peer reviewers and journal editors now expect a fairly high degree of realism. And that is not necessarily a bad thing. Consumers of jury research, such as judges, legislators, and other policymakers, demand it. Moreover, more naturalistic research is easier to conduct than it used to be. Given technological advances, it is much easier to create a high quality videotaped, or at least audiotaped, mock trial today than it was 20 years ago. And online research platforms have made it easier to access diverse, community-based samples. Some methodological problems are virtually intractable; for example, nearly all “mock” jurors know that their decisions have no consequences for the litigants or themselves. But on the whole, the future of jury research looks a lot more like a real jury than past jury research did.

There is a healthy debate over the most suitable research methods. Can we draw conclusions from studies in which mock jurors make individual judgments without deliberation? Do student mock jurors differ from nonstudents in meaningful ways? Are case studies or interviews with handpicked jurors informative? Is it feasible to study “real” jurors, and if so, under what circumstances? These questions, and others like them, have bedeviled jury researchers for about as long as there have been jury researchers. Few empirical studies speak to them directly. Importantly, though, contemporary researchers are grappling with these issues, and the very diversity of research methods being used is a plus--for the more that different methods lead us to the same conclusion, the more confident we can be that the conclusion will hold up over time and across situations.

Jurors may not be perfect, but there is not a clearly better alternative. Judges are susceptible to many of the same biases as jurors, and studies comparing judges and juries show that they agree over 75% of the time. In the minority of cases where they do disagree, we should not necessarily assume that the jury got it wrong and the judge’s decision would be preferable in some way. Much of the problem is that there are few, if any, benchmarks for evaluating jury performance, apart from how well they follow the law and are sensitive to legally relevant variables. Rather than bemoaning juries’ imperfections and restricting their role in the justice system, our research and policy efforts would be better directed toward helping them do better.

Courts are still not terribly receptive to jury research. Courts often point to methodological concerns like the ones mentioned above in dismissing social scientific research on juries. In the past, many jury researchers have felt like they are banging their heads against the wall. But there are positive signs on the horizon. As noted already, jury research on the whole is becoming more realistic, which appeals to courts and other policymakers. And the current generation of judges is more empirically savvy than its predecessors. In addition, social scientific research has made significant inroads in other legal domains, such as the representativeness of jury pools and the reliability of eyewitnesses.

What, then, is the future of jury research? Color me cautiously optimistic.

Recommended Reading

Bornstein, B.H., & Greene, E. (2011). Jury decision making: Implications for and from psychology. Current Directions in Psychological Science, 20, 63-67.

Bornstein, B.H., & McCabe, S.G. (2005). Jurors of the absurd? The role of consequentiality in jury simulation research.Florida State University Law Review, 32, 443-467.

Devine, D.J. (2012). Jury decision making: The state of the science.New York: NYU Press.

The Jury's Trials

Problems, Pitfalls, and Possibilities in Jury Decision Making
Brian Bornstein, Ph.D.

Brian Bornstein, Ph.D., is a Professor of Psychology in the Law-Psychology, Social, and Cognitive Psychology Programs at the University of Nebraska-Lincoln.

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