Let’s Give Them Something to Talk About: An Empirical Evaluation of Predeliberation Discussions

Every American citizen is qualified to be an elector, a juror, and is eligi-ble to office. The system of the jury, as it is understood in America, ap-pears to me to be as direct and as extreme a consequence of the sover-eignty of the people as universal suffrage. These institutions are two instruments of equal power, which contribute to the supremacy of the majority. —Alexis de Tocqueville Jurors are chosen from every conceivable walk in life. The butcher, the baker, the merchant, the taxi driver, the day laborer, the farmer, the mechanic, the accountant, the barber, the hotel clerk, the cobbler, and the gas station attendant may make up the jury in a criminal case, but however it be composed it must be borne in mind that the jurors are unschooled and inexperienced as to their duties in a criminal case, and they are not instructed as to those duties until all the evidence has been received . . . . —Winebrenner v. United States In the overwhelming majority of American courts, jurors are strictly forbidden from discussing the case before them until the time designated for deliberations, after the parties have presented all of the evidence. Since 1995, however, a few states have authorized jurors to discuss the case during recesses from trial. This innovation has sparked debate over the merits of permitting such predeliberation discussions.After explaining the traditional view of jury deliberations, and in-troducing the few studies on predeliberation discussions that have been conducted, the author evaluates the arguments on both sides of the de-bate, not only on their own merits, but also in light of social and cognitive psychology. Ultimately, the author recommends a change in the existing majority rules, so that courts can reap the vast benefits of predeliberation discussions.

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