July 9, 2010

Don’t (Always) Waste a Strike on the Crazy Juror

by: Dr. Kevin Boully

Boully_Kevin_88_120 They show up in nearly every jury panel.  An unexpectedly flamboyant or oddly eccentric juror who offers too much (irrelevant!) information at the drop of a hat, responds to your oral voir dire question about lawsuits against corporations by telling you about his third cousin Simon’s run-in with a cantankerous Big Box store employee in Akron, Ohio.  “That store is a spacestation for dictators!”


He looks like a wildcard and he’s given you reason to fear he may be opposed to your case.  You hate the risk of leaving him on the panel for simple fear of what he may say and do in deliberations, but you also expect the quiet female juror in the corner may have it out for your corporate defense client.  What can you tell your client if the oddball commandeers the jury?  Shouldn’t you have seen it coming?  You use your last peremptory strike on “Kramer,” allowing the high risk female juror to sneak into the jury room and help decide the fate of your case.  A few insights help inform this either/or jury selection choice in the future. 

1) Majority matters.  Research shows individual jurors’ predeliberation positions are useful predictors of jury group verdicts[1].  And the jury decision-momentum consistently flows in the direction of the current majority.  Having a single, odd “outlier” in the group will not often change the group’s verdict preferences much, if at all.  In a mock trial just last week, we saw a highly eccentric juror affect the tone of his group’s deliberations by adding off-beat comments and extreme views of the case facts.  The ultimate outcome of the group was virtually unaffected by his comments when the group rendered a verdict highly consistent with the majority’s predeliberation leaning (and even slightly further in the direction away from the oddball). 


2) Leaders emerge through leadership.  Most effective jury leaders are inclusive, communicative, and rational leaders rather than unconventional loners or dramatic instigators.  They must capture and direct the group’s attention, not detract from it or the group’s decision-making tasks.  The risk of the oddball juror being a jury leader, or even a persuasive voice is less than you might fear, and almost always less likely than a rational juror offering supported opinions.  I cannot remember the last time a group selected and retained an oddball juror as its recognized leader. 


3) An extreme minority reinforces the majority.  Mock jurors in our mock trial research exercises consistently recoil at the extreme comments and positions of their oddball counterparts, moderating their own positions and arguments in order to help account for another jurors’ peculiar ideas and arguments.  The net result is often a reinforced or stronger majority steeled against a small atypical opposition with limited ability to mount a persuasive campaign. 


The key in evaluating the risky potential of an odd juror is to understand the group composition and how the group is likely to respond to one another in spite of verdict preferences.  We often see that despite our expectations, a single eccentric juror recedes into the fabric of the group, making your decision to leave them on the jury much less consequential than you might imagine. 


*Decision-rule is a critical component of evaluating jury composition.  See this review of the non-unanimous civil jury for more.    



[1] See for instance, Devine et al.’s (2005) review suggesting that a majority’s initial verdict preference will be the jury’s verdict about 90% of the time in criminal trials. 


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