Jeffrey Dahmer. O.J. Simpson. John Wayne Gacy. The Menendez brothers. One thing these well-known criminal defendants have in common is that their trials were hard on jurors, due to the gruesome nature of the evidence, media coverage, long trial duration, and other factors. The same is true for countless other trials, especially those involving homicide, sexual assault, child abuse, and many other kinds of criminal and civil offenses. Jurors can experience stress in even relatively mundane cases, and courts are increasingly—some would say “finally”—paying attention to the issue.

For example, a bill under consideration by the Oklahoma legislature, House Bill 1833, would provide compensation to jurors for post-trial mental health counseling in heinous cases. The compensation would have to be approved by the court and would be paid for by the court.

I commend members of the Oklahoma legislature for taking jurors’ mental health seriously. However, as is often the case, what seems like a good idea in theory might be difficult to implement. Courts are necessarily concerned about having their limited financial resources stretched even thinner. And even if funds were readily available, questions remain. What type of counseling qualifies? Suppose I am a stressed out juror. Can I obtain compensation whether my provider is a psychologist, psychiatrist, masters-level therapist, social worker, or pastoral counselor? Must the provider specialize in jury stress, or be on a list of court-approved providers? Is it enough for me just to claim that I was traumatized, or must my reaction be compared to a purportedly objective standard? If I’m already seeing a therapist for depression, and we talk about my jury service too, is that covered? Will the court reimburse my insurance company, me for my out-of-pocket expenses, or both?

Another problem is determining what constitutes a “heinous” case. If it means only cases where heinousness is a relevant legal consideration, then it would be limited mainly to capital cases, in which heinousness is a widely used aggravating circumstance that the jury may consider in deciding whether to sentence the defendant to death. Of course, that would exclude the many other cases that are heinous according to the common vernacular but where jurors do not make sentencing decisions. And even in capital cases, heinousness is rarely or poorly defined. It variously refers to the defendant’s state of mind (e.g., callous or depraved), characteristics of the victim (e.g., helpless), or the nature of the crime (e.g., torture). Jurors have considerable difficulty understanding heinousness, and it is not at all clear that courts—be they judges or other administrators—would be able to do so any more systematically for purposes of determining eligibility for compensation for post-trial counseling.

The devil is in the details. Let us hope that Oklahoma’s legislators mange to work them out. The potential benefit to Oklahoma’s jurors is substantial.

Recommended Reading

Bornstein, B.H., Miller, M.K., Nemeth, R.J., Page, G., & Musil, S. (2005). Juror reactions to jury duty: Perceptions of the system and potential stressors. Behavioral Sciences & the Law, 23, 321-346.

Bornstein, B.H., & Nemeth, R.J. (1999). Jurors’ perception of violence: A framework for inquiry. Invited article for Aggression and Violent Behavior, 4, 77-92.

Miller, M.K., & Bornstein, B.H. (2013). Trauma, stress and wellbeing in the legal system. New York: Oxford University 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.

Most Recent Posts from The Jury's Trials

Witnesses' Religious Expression

Weighing free exercise versus jurors' ability to assess witness credibility

Noncitizen Jurors

Why California (and other states) should allow legal noncitizens on juries

Sequestration Pros and Cons

More on the George Zimmerman trial