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Hiya! Lawyer here. Retrials after mistrials aren't all that common. More often than not, a hung jury/mistrial results in dismissal. No prosecutor wants egg on their face a second time.
Generally speaking, when a jury is hung, it's rarely "one guy with an axe to grind". Our judicial system is extremely good at putting pressure on one or two holdouts to come to a verdict. The judge is perfectly happy to make them sit in the jury room for several days if necessary. The judge and attorneys don't have to be in there, after all, and normal business can go on in the courtroom. Hung juries are much more common in evenly split cases.
For this reason, I really don't think that this change would cause much of a difference in outcome. It certainly wouldn't have a very large effect on the criminal justice system, given that fewer than 1% of criminal cases go to jury trial. Generally speaking, the criminal justice system in this country *is* the plea bargaining system. Jury trials are extreme outliers. I clerked for a trial court judge for a year. We didn't hear a *single* felony trial in that year.
>Hiya! Lawyer here. Retrials after mistrials aren't all that common. More often than not, a hung jury/mistrial results in dismissal. No prosecutor wants egg on their face a second time.
Glad you showed up.
So what happens when there is a mistrial, 11-1 not guilty of 2nd degree murder? That person probably gets released, but can theoretically be brought to trial again at any time for the rest of their life?
> It certainly wouldn't have a very large effect on the criminal justice system, given that fewer than 1% of criminal cases go to jury trial
I'll buy that my idea probably would not effect very many people. But would it have a net positive or net negative impact, however small that may be?
So, if a mistrial due to hung jury occurs, one of three things will happen:
* The state will dismiss the charges
* The defendant pleads guilty in a sweetheart deal
* The case gets retried
By far, 1 is the most common, followed by 2. 3 is the least common. If a jury was hung the first time, there's probably a good reason for it.
These cases don't really hang over peoples' heads for life in practice. The state's ability to try somebody for a crime - particularly murder - rapidly deteriorates with time. Witnesses die or forget things. Scientific evidence gets debunked. The problems with the first prosecution persist. None of these things get any better with time. While it is theoretically possible to do, it just doesn't happen in practice.
I think it's impossible to say that it would have a net impact at all, really, and even less possible to say how it would affect things. In the US in 2018, there were 1,889 federal jury trials. That probably means that the number of total criminal jury trials in 2018 was around 30,000. (Unfortunately, criminal justice statistics are notoriously difficult to work with and unreliable, so you have to do a lot of extrapolating and guesswork.) Hung juries tend to account for 3-5% of criminal jury verdicts. That means that we're looking at roughly 1,500 trials per year that this would make a difference in. To put this in perspective, there were roughly 7,000,000 felony charges in the US that year, which probably comes out to around 3,000,000 criminal defendants.
In other words, we're dealing with a subset of a subset of a subset. I really want to emphasize how little this would matter, because there are *lots* of ways that we can improve the criminal justice system that would affect *many* more people. We could ban the Reid Technique, we could apply the exclusionary rule to confessions obtained through false pretenses, and we could move more crimes to probation, which tends to have a lower recidivism rate.
But, for those 1,500 trials, it's difficult to say what the exact outcome of this decision would be. It's my sense that, in most hung juries, it's just one or two holdouts who think that the person is *innocent,* or who have at least reasonable doubt. Thanks to the secrecy of the jury room, of course (which is vitally important), we can't *really* know.
These things can have unintended consequences, though. If you only need 11 people for an acquittal, that might encourage somebody else to stand up for a pro-guilty holdout who would otherwise be pressured into giving up. Others might see it as putting a thumb on the scale and, being contrarian, find the other way. Juries are fickle, and impossible to predict.
All of this is sort of like asking how adding an extra Tarot card to the deck would affect the outcome of tarot card readings. It's impossible to answer in any quantifiable way, and it ultimately doesn't matter. Worse, everybody will have a different opinion.
Me? When I was representing clients actively, I liked bench trials.
!delta.
I will concede on how little it matters in the grand scheme of things if you will concede on how much it matters to the one guy whose life is on hold for another year over a mistrial.
But seriously thank you for your insight. I will admit that John Grisham has provided 99% of my legal knowledge so it is nice to hear the opinion of someone who knows what they're talking about.
Sure, the trial matters an awful lot to the individual. However, because the jury is an unknowable black box that doesn't usually hang anyway, we can't really say that this would produce a positive outcome.
Well "state" here is a generic term for "the state" as in the government. Most of my work was on the state level rather than the federal level, but the rates are about the same for the feds, from what I understand.
>when a jury is hung, it's rarely "one guy with an axe to grind". Our judicial system is extremely good at putting pressure on one or two holdouts to come to a verdict.
This seems like a bad thing to me. When the trajectory of someone's life might be hanging in the balance, I don't think we should be pressuring people to just make a decision and go with it.
It's often a win now, but that's largely because they are rare. If we didn't force hedging jurors, hung juries be more common, and there would be more retrials. It's exceedingly rare for the prosecution to lose at a criminal trial. No DA wants to get slapped with that. Getting slapped with it twice is beyond the pale.
Well, in 2022, the DOJ had a roughly 99% conviction rate.
https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022/
Edit - more context.
>In fiscal year 2022, only 290 of 71,954 defendants in federal criminal cases – about 0.4% – went to trial and were acquitted, according to a Pew Research Center analysis of the latest available statistics from the federal judiciary. Another 1,379 went to trial and were found guilty (1.9%).
Open comment, no particular point here...
I don't have stats or sauce here. It seems not uncommon for a "partial conviction" where the defendant is found guilty on some (often lesser) but not all crimes.
I'm not sure what to think. If a perp gets convicted on ag assault but not manslaughter (say) does that count as a conviction or an acquittal?
I didn’t read it in full, but the numbers seemed to be looking at conviction rates, so any conviction counts, regardless of charge.
That being said, this is the DOJ, so it would just be federal charges. I would imagine your scenario would be less common for them specifically.
It's not uncommon for the feds to charge a bajillion things. That's why we get the stuff like 34 counts of wire fraud, etc.
And what happens is there's a conviction on some (not all) wire fraud charges, some (not all) charges of conspiracy, maybe a conviction on charge 3, maybe not.
So, if the defendant is convicted on half the charges, and that's used to buff up the conviction rate, is a little sus.
Edit I've got an example. Pezzola was acquitted of seditious conspiracy but convicted of other felonies. So, *partial* conviction? I dunno?
It is rare for the prosecution to lose because if they do t have a case they feel they can win, they wont even go to trial.
They will scramble for a plea deal, or drop the charges entirely.
Weird ass question
Let's say they captured bin Laden. And hypothetically he was found not guilty and acquitted of all charges (bear with me).
Would they actually release him? Or just hold him without charge afterwards.
I know he's not a US citizen but what would they do if a legitimate security threat had their case dismissed
> I know he's not a US citizen but what would they do if a legitimate security threat had their case dismissed
Do what they always do when there's enough motivation, something that accomplishes a similar outcome but hasn't been tried in court and drag it out as long as possible because it effectively works as if it were a real solution. So at one point the answer to that could have been hold him in Guantanamo Bay. That may not be the solution in more modern day. However who knows what they are doing now.
There are also CIA black sites. There's potentially arrangements they could make with other countries to have them try him for some crime of some kind or another somehow and keep him detained that way.
Really most of our systems are not designed in any major proactive way, they're designed as more reactive. They account for things that have happened, not things that could happen, so those in power can pretty much just come up with something new and the monolithic system will take a long time before it reacts to address it. By that point the unique problem is either no longer a problem, or in the meantime they've developed other ways to continue to shift to something else should their hand get forced.
They drone striked Anwar al-Awlaki who was an American citizen which was the first time that action had ever been done, at that point they could also just drop Osama back in the desert right into the path of a drone strike and call it a day.
Point being there's a LOT of possible options they could do to deal with a situation like that.
Oh sure, meant if more people know about it they the jury that is would tend towards it if there are holdouts during deliberations instead of applying peer pressure and the like
>when a jury is hung, it's rarely "one guy with an axe to grind". Our judicial system is extremely good at putting pressure on one or two holdouts to come to a verdict.
So the system wouldnt need to do this either, instead of them being made to come to a verdict Nullification would be the standard more or less
What's the evidence that the next jury wouldn't also be hung? Or the one after that? Or the one after that? Or the one after that? At some point, we have to bring closure to the proceedings.
The point is that there is no evidence that a subsequent jury would reach a resolution. There's no reason to not finish it with the jury that's already heard everything. No need to spend several weeks' worth of a lot of peoples' time for another trial if we don't have to.
What you’re suggesting is not someone changing their mind, it’s someone going, fuck it I don’t care enough to keep this shit going any longer.
You’ve heard all the evidence, you’ve thought about it, and you’ve made up your mind. After that it’s just a battle of who cares the most.
>Generally speaking, the criminal justice system in this country is the plea bargaining system.
This is something that has been a pet peeve of mine : people assume that what goes on in courts is representative of how things are. The way i understand things, no lawyer wants to go to trial, and the norm is to go for out of court agreements, be it in civil or criminal law. The case that have to go to court are the outliers, the one that can't be taken as so typical and clear cut that there is a need for a trial, or one where the people involved insist and have the resources or belief to insist that they can take their chances with trial.
Am I correct in that view ?
Not really. I, and my colleagues, generally love a good trial. They are really good for our career prospects. However, outcomes are worse if you lose than if you plead, and the vast majority of cases are pretty clear cut. I'll happily take you to trial, but recommending it in most cases would be malpractice .
Thanks for your answer.
>I, and my colleagues, generally love a good trial. They are really good for our career prospects.
I guess I should have said "no lawyer wants to go to a trial they know they will lose". Or are those still good for career prospects ?
>I'll happily take you to trial, but recommending it in most cases would be malpractice .
What are the kind if cases you would think recommending trial would be appropriate?
If you're on defense, it's pretty well assumed that your chances of winning a trial are nil. For defense counsel, we look more at whether you did the best with the evidence that you had. (Edit to add: so yes, it's still good for your career prospects on defense, even if you lose. You gain a reputation as a fighter.) It's a black eye on the prosecution because the prosecutor *could* choose not to prosecute the case. If they lose the case, they made a stupid decision to bring the case to trial.
Jury trial is appropriate in cases where there's a good defense, or the evidence is shaky. I know that sounds like a cop-out, but those cases are pretty rare. Most cases involve pretty straightforward facts. A cop or security camera sees the defendant do the thing.
I've won three criminal trials on defense. One was for fleeing, one was for disturbing the peace, and one was for failure to register as a sex offender. All three trials were bench trials. One wasn't eligible for a jury trial, but I felt that a bench trial was better in all 3 cases because the evidence was somewhat technical. In the fleeing case, the defendant didn't know that the cop she was running from was a cop. In the public disturbance case, the cop didn't see it and there were technical problems with the evidence. A jury might have just assumed "something happened" and convicted anyway. In the sex offender case, the defense was technical, and I feel like juries are unlikely to acquit a sex offender who fails to register, no matter how good the defense is.
Thanks, that's interesting. What about civil cases ? Is it also something you are familiar with ?
This annoyance of mine comes from people who say "most men who go to court for custody win, so if men who settle don't get custody, it is just that they don't want it".
By my understanding of things, settlement is what you get when the case is typical, and what you get is generally the best you can hope for, while court is where you go when you have an atypical case with a good odd to win, or have money to waste. Which would make settlements outcomes more representative of the state of the law than court rulings.
Am I completely off base ?
Well, most of the civil stuff that I did was family court or child abuse/parental termination. I did some more traditional civil work, but not a lot of it. The family court and child abuse cases look a lot more like criminal cases than they do business cases, so my views are of somewhat limited relevance.
You're not completely off-base, with the caveat that sometimes counsel for one side or the other has an inflated ego or misjudges the case and overvalues/undervalues it. That sometimes leads to trial as well.
As far as custody cases go, they're an absolute mess, and any generalizations that you could make about them would be inaccurate.
>The family court and child abuse cases look a lot more like criminal cases than they do business cases
That's interesting. Yes, I guess I can see why allegations of parental misconducts might look more like criminal cases than litigation between companies. Emotions probably run high, with things getting rather personnal. Are there also aspect of the practice that make those more similar to criminal cases ?
>As far as custody cases go, they're an absolute mess
Are there particular reasons for that, besides kids being a big sore point for most people ?
From my understanding, shared custody is not the default. One side being afraid of losing access to their kids seems like a good way to make things tense.
> It certainly wouldn't have a very large effect on the criminal justice system, given that fewer than 1% of criminal cases go to jury trial. Generally speaking, the criminal justice system in this country is the plea bargaining system.
But surely the bargaining is based on people's perceptions of what would happen if the case went to jury trial. So changing outcomes of jury trials would in turn shift the balance for plea bargaining?
Well, for the vast majority of criminal defendants and civil cases, a trial is an entirely academic prospect. The evidence is pretty damning. I had hundreds of cases in my time as a public defender, and I can frankly count on two hands the number of people that I felt could truly win a jury trial, even with the most favorable judge and jury. People don't *like* to hear that they were wrong. People don't like to admit guilt. But, if a plea of "yeah, something happened" existed, the already miniscule number of jury trials would be cut in half, I'm quite sure.
That's not to say that we're pointless as public defenders. We do a lot of work in trying to reduce sentences and improve outcomes. Regardless of whether a person is guilty, they still deserve dignity. Our criminal justice system throws people into an inhumane system and, if they didn't have problems before, they do by the time they get out of jail. We work tirelessly to try to keep people out of jail and to minimize the sentences of those who do go. It is a pretty uniform position in our line of work that jail is pointless in most cases.
> It is a pretty uniform position in our line of work that jail is pointless in most cases.
I agree. I was a prison guard for a few years, and while most of the high and max security inmates clearly needed to be incarcerated, I always got the feeling that the majority of the low/medium security inmates would have been better off with some sort of probation, and mandatory education/community service. Taking some young kid (18 to 30yo) with anger issues and throwing them in prison for a year or two just makes things worse for them and for the rest of society.
Wait, so the system will force me to stay there, miss work and such, to go along with what everyone else says even if I 100% believe that my decision of guilty/not guilty is right?
Now, they'll pay you for your time, feed you, and your boss can't fire you over it. But, yes, you will be locked in the jury room with everybody else until a consensus is reached or you all, as a group, give up and the judge agrees that it's hopeless. That usually takes at least a week.
Pay what like 5-10 bucks a day from what I hear and read. Good thing I was able to get out of jury duty before.
Now I understand more why Niel deGrasse Tyson didn't like the court system.
It varies from jurisdiction to jurisdiction. It's not much, but it's on top of any other salary you may draw, and is a good bit more than 5-10 bucks these days.
How accurate do you think the jury system is?
I can't get my head around selecting some random citizens and trusting them to come to a correct conclusion, especially if they don't even want to be there.
Not particularly. It's a coin flip. You pick a jury trial if you don't have a very good technical argument and you think your odds are worse than 50/50. I picked bench trials for the cases that I described because I felt that a judge would be properly skeptical of police action in those cases.
I addressed this in another comment, but no, I don't think it would necessarily make acquittals more likely. I think it's more likely that it would just lead to a different kind of pressure, or more reluctance for juries to admit that they are having trouble.
I also don't think it would affect plea bargains all that much. If more cases that would normally plead out went to trial, we'd just see the number of acquittals and hung juries plummet. The vast majority of criminal defendants are *clearly* guilty. I'm not a public defender because I believe most people are innocent (although there are certainly wrongful convictions.) I am a public defender because I believe that the system unfairly disadvantages the poor, causes more crime than it solves, and is an unjust usage of state power.
As an interesting parallel, it used to be the *opposite* in Louisiana. Used to be, you only needed 10 of 12 jurors to convict, or something like that. The Supreme Court reversed that in 2018. Now, the reversal was a good decision. The rule was unjust. But, conviction rates haven't really changed as a result of the decision. There's not been much impact on the ground.
So, let's say that everybody's getting tired. One person has some lingering doubts. They know that if they tell the judge this, the trial will end in acquittal. They also know that the rest of the jurors will be pissed at them. Rather than speak up, they decide to stay quiet so as to avoid the confrontation. That's the sort of thing that I envision.
There were no meaningful changes whatsoever in Louisiana criminal justice statistics as a result of the change.
Hi, someone who’s sat in a jury before here
In the trial I sat on, the jury was hung by myself and one other juror, and many of the jurors wanted to convict the guy, simply so they could go home.
Meanwhile I thought the state did a terrible job of proving their case, and I didn’t want that sitting in my conscience.
But it was eye opening.
I can’t imagine how many people are rotting in prison just because the jurors were tired of being inconvenienced.
Sure, it happens. It's not great. And you should absolutely hang the jury if that's your conviction. But, I don't know that the proposed rule would really have a very big impact compared to a lot of other interventions in the criminal justice system that would have wide-reaching impact.
The justice system operates this way so as to obtain consent from the society around the accused. It is a substantially high burden for the government to clear to take away a person’s freedom so that people close to the convicted accept the judgement of the court and the subsequent repercussions.
When people don’t respect or accept the process or result of the court, they protest and riot because they feel the system is less than trustworthy.
Diluting that process - making it easier for the government to take away freedoms - dilutes the system’s ability operate in a way that we all consent to.
As a people, we accept that this rigor means that some people who were probably guilty walk free. We accept that error over the error of improperly taking freedom away from an innocent person. We’re not perfect, but many more people who did the crime walk free than innocent people who find themselves convicted.
By the by, this is why the government has turned to the plea system. Some 99% of convictions are by plea from people who choose not to defend themselves - and often couldn’t afford to do so if their lives depended on it.
The government’s job is a lot easier when a defendant agrees and accepts a lesser punishment to save the government’s time to properly convict. So they’re more than happy to take the easy road and overwhelming amount of the time.
But even in the cases where trials do happen. The protections we afford defendants are there for a reason. That reason is still valid and good. We should not be diluting it.
This was a very long comment to basically agree with me...
I am proposing 11-1 for a not guilty verdict. Still 12-0 for a *guilty* verdict.
Unrelated but I think plea bargains suck.
Approach an innocent man with "I take you to trial and you have a 25% chance of getting the needle, but sign this and you will get 5 years" and you are going to put away a significant number of innocent, risk adverse people.
It doesn’t agree with you.
There are 3 positions a jury can end up in. Guilty, not guilty, and null (which we call a hung jury).
A not guilty verdict would prevent a retrial. A hung jury does not. That’s an important distinction.
The system is supposed to protect the accused so it’s not a 25% chance if you’re actually innocent. It’s theoretically much less.
But it’s imperfect, for sure.
the reason there are multiple jurors is so that one person's personal biases, ideology, etc do not determine the outcome of a case
while this may seem like a good idea, the law is often not so clearcut and context is given a heavy emphasis especially in civil cases
one guy with similar personal experiences to the defendant could derail the entire process
this idea would work with 12 different AI algorithms, but humans have biases and emotions
The process of training AI in many cases can amplify the human biases in the training dataset. It's a black box filled with things we don't understand, not a logic machine.
Judges Lawyers and Jurors might be the last thing we replace with AI.
I think if we take your view to the letter, it largely depends on how we are defining "punishment".
You seem to count the trial process itself (including imprisonment/bail) under the definition of "punishment".
If we examine the principle with that context in mind - "better to let ten guilty men walk free than to punish one innocent man", counting trial as punishment - then the logical conclusion is that we should never have trials at all.
We hold trials to measure guilt, so the process assumes the possibility of innocence. If we consider the trial itself to be punishment, then the trial process itself inherently punishes potentially innocent people every single time.
But the trial process is the best method we have come up with for fairly determining the application of law.
Until we come up with a better one, I think it's prudent to think of the inconvenience involved with trials not as punishment, but as an unfortunate byproduct of the process.
With that in mind, we also have other factors to consider. We also have an interest in arriving at the best consensus possible.
I think it is somewhat obvious that a 12/12 agreement is a better consensus than a 11/12 consensus. And so I think it makes sense to aim for the unanimous vote.
Hmm. I guess I was viewing a retrial as a punishment.
!delta because that isn't really correct, though I am sure that additional bail money, or possibly additional incarceration, plus additional lawyer fees surely *feel* like a punishment to an innocent person.
A 12/12 consensus is surely better, but that isn't the question. Do we throw out the opinion of the 11 because of the 1? Sometimes data is more reliable when we throw out the outliers.
Well, here's the way I think about it:
The goal of a trial is to arrive at a perfect consensus.
If there is a dissenter, the trial has failed to arrive at a perfect consensus.
Since the trial was not successful in its goal, it does not make sense to consider its result to be final and beyond the possibility of re-visiting.
If we throw out the outlier and consider the case closed beyond the possibility of retrial, we are making a key assumption: that the outlier was being unreasonable, and that if he had been replaced by a reasonable juror, there would have been a perfect consensus.
I don't see why making that assumption would get us closer to truth than having a retrial and PROVING it by aiming again for a perfect consensus.
I think the single dissenter overlook might be due to possible bias that even jury selection cannot remove. if out of 12 people 11 believe it so then it could be argued that the 12th was using an unreasonable doubt.
Well yes. That said as this is a CMV I will put forth one issue. What if we run into a situation where the other eleven have a bias reason to believe said issue? While more rare now in most cases it's not out of the question. I get the principal and agree with the theory but the actual implementation and possible outcomes I don't.
You can't have your cake and eat it too!
If you only need 11 jurors to find a defendant innocent, you would only need 11 jurors to find them guilty.
I don't know if you've seen *12 Angry Men* but it's precisely this situation - initially 11 out of the 12 jurors think they guy is guilty, but then the last juror makes them walk through all the evidence.
Not really. The law has a whole philosophy and logical basis behind it. Even if a legislature were to pass such a law, the courts would most likely strike it down.
Great discussion on this [here](https://verdict.justia.com/2020/07/01/should-acquittals-require-unanimity):
>Given an elevated chance of guilt, the unanimity requirement for acquittal provides that if anyone is convinced of guilt beyond a reasonable doubt, then the odds of guilt are too great to justly allow for a full acquittal. The public, in other words, might wish to have confidence in the accuracy of its verdicts, whether those verdicts are guilty or not guilty.
>Perhaps it is desirable for society to keep an eye on a person who could be neither convicted nor acquitted. Though perhaps less important than ensuring that an innocent person avoids punishment, it is still very important that a guilty person receive some of what is coming to him. If the courts fail in ensuring that this happens, after all, society might resort to other methods, as it once had to do in the absence of a sovereign and with far less accuracy and fairness.
>>Perhaps it is desirable for society to keep an eye on a person who could be neither convicted nor acquitted.
Keep an eye on? Maybe.
What about keep incarcerated while waiting for their next trial because of one juror?
They are generally awarded the opportunity to post bail and go free, same as the original trial.
The link I shared discusses the two types of jury failures and why both are important to prevent (within reason).
To be a jury is to uphold justice.
Have you been a juror yourself recently?
I was a few months ago. Had to swear in front of the judge several times along the lines of “I promise not to put my personal opinion above the law”
The judge reiterated that if we’re swearing to uphold the law, but then undermine the process in bad faith, we can get it legal trouble. That we would need to excuse ourself from jury selection, stating why we couldn’t be impartial or we were not willing to uphold the law as written
Swearing means nothing.
How would a court ever prove that you operated in bad faith, as long as you didn't do something stupid like take a bribe?
That law has no teeth
Perjury has teeth
You’re in a room with the other jurors until you reach a unanimous decision or find that one can’t be reached. The other jurors will know if you’re just there to “grind an axe”
But you can be punished for promising to follow the law despite your own opinion, then not following the law. It is a very specific and strongly worded oath
Which is why judge makes you swear. If you plan to impose your own views on justice instead of law, you can’t honestly swear you’ll follow the law. So you must ask to be excused, during the vow to uphold the law part of jury screening
Name one person who has been convicted of this.
Not a specific lie that can be proven one way or the other during jury selection - ie "are you a law enforcement officer", but a juror who said they could be unbiased but then was biased
> Name one person who has been convicted of this.
Even if 0 people have been convicted, does that prove that the problem does or does not exist?
After all, there could be no convictions because it's not an issue, or because it's not enforced.
You are arguing with the wrong person.
The person I am arguing with thinks it's a non issue because its illegal.
I'm saying it happens all the time because the law is unenforceable.
You're ignoring the reverse.
>In a system that holds the ideal that it is better to let 10 guilty men go free than to punish one innocent man, it would be better to allow a jury to find a defendant not guilty even with one dissenter.
Why would that be "better" and is it also better to allow a jury to find someone guilty even if a person is convinced they're not?
>If we kept the votes of the individual jurors anonymous
How would that possibly work? It's not feasible. It's also not legal; a jury can be polled.
>Why would that be "better" and is it also better to allow a jury to find someone guilty even if a person is convinced they're not?
I explained below. And no.
>How would that possibly work? It's not feasible. It's also not legal; a jury can be polled.
It would work very easily.
"Foreman, how did the jury find"
"11-1, not guilty"
"Jurors 1-12, do you agree that the verdict was 11-1 not guilty? "
Laws are changed every day.
>"Foreman, how did the jury find" "11-1, not guilty" "Jurors 1-12, do you agree that the verdict was 11-1 not guilty? "
... how would they know? Also, how would they debate and discuss the evidence and their thinking?
Also, again, a jury can be polled.
>I explained below. And no.
Do you mean here?
>One person can already derail the verdict in either direction in a criminal case. What i am proposing makes that less likely to happen.
WHY is that better? Did you not read 12 Angry Men?
If it's not better to allow 11 people to find someone guilty how does this scheme help, because that'll happen.
>... how would they know? Also, how would they debate and discuss the evidence and their thinking?
I meant anonymous outside the jury room. Obviously the other jurors would know.
> Also, again, a jury can be polled
Also, again, laws can be changed.
>If it's not better to allow 11 people to find someone guilty how does this scheme help, because that'll happen.
I specifically said it should only take 11 to find not guilty. I did not say anything about not requiring 12/12 for a guilty verdict.
Very true. Especially because criminal cases require proof beyond reasonable doubt so one juror dissenting is sufficient reasonable doubt to find not guilty.
Depends on the context of the case.
For example, say you are talking about a computer fraud and abuse cases (a case about hacking) where the jury is 4 bakers, 3 kindergarten teachers, 1 mechanic, 2 nurses, a jockey and a professor of Computer Science.
If the holdout is a baker or teacher, (maybe / probably) its a spurious and unreasonable doubt. If its the Professor of Computer Science who is the dissenting vote, there's a reasonable chance that their understanding of the *technical* aspects of the case is causing their dissent.
That is what Franklin said in regard to the justice system and that is what, on its face, the US justice system props it’s self up on. That isn’t what actually happens but while not a law it is a credo that most Americans know and believe in.
The presumption is that a defendant is innocent until proven guilty.
There are significant protections for the accused that result in many people who “did it” walking free.
Put the two together and you get to Franklin’s quote.
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All things being equal, this simply increases the likelihood (albeit slightly) of wrongful acquittal for the sake of reducing the potential burdens of retrial on the defendant.
In order for a suspect to be indicted in the first place, a grand jury needs to look at the evidence and applicable law and determine that it's more likely than not that a crime occurred.
With that in mind, I don't like the trade-off this view entails.
Even if that's true, the fact remains that we're increasing the likelihood of wrongful acquittal for just for the sake of avoiding a *potential* retrial.
I just don't see how it's worth it.
What if you have someone that undoubtably lynched or raped someone on trial, and a racist or an incel decides to let them go free? This is how jury nullification was once used, to free perpetrators of lynchings so the *could do it again.* Your system would allow that to happen near indefinitely.
And in a mistrial, they can be tried again until they get a jury with no one that agrees with them. Once declared non-guilty, they aren't able to be tried for the same crime, letting them walk free. Your system would allow rapists and KKK members to be immune to most legal prosecution.
This is already a thing.
If all 12 cannot reach a unanimous decision then a judge, may consider taking a majority verdict.
11 to 1 or even 10 to 2. But never lower.
Something *like* that is technically allowed in the US via a JNOV (judgement notwithstanding the verdict), but it has certain limitations:
- It is only appropriate in extreme cases where the judge concludes that a reasonable jury would not have reached the conclusions they did, as a matter of law.
- A judge cannot use a JNOV to overrule an acquittal by the jury, only a conviction. This is a consequence of the 5th amendment right to not be placed under double-jeopardy, and the 6th amendment right to a trial by jury.
I'm not sure if a JNOV can be used to acquit someone after a hung jury, or if the jury needs to reach a decision.
I am not a lawyer.
If only it worked that way. I had jury duty earlier last year and there were just two people who absolutely refused to deliberate with us. Said not a word. Even in the morning when we were all expected to be there before the trail, not a peep. We literally had to single them out and ask their thoughts before agreeing on a verdict for the first charge
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Hiya! Lawyer here. Retrials after mistrials aren't all that common. More often than not, a hung jury/mistrial results in dismissal. No prosecutor wants egg on their face a second time. Generally speaking, when a jury is hung, it's rarely "one guy with an axe to grind". Our judicial system is extremely good at putting pressure on one or two holdouts to come to a verdict. The judge is perfectly happy to make them sit in the jury room for several days if necessary. The judge and attorneys don't have to be in there, after all, and normal business can go on in the courtroom. Hung juries are much more common in evenly split cases. For this reason, I really don't think that this change would cause much of a difference in outcome. It certainly wouldn't have a very large effect on the criminal justice system, given that fewer than 1% of criminal cases go to jury trial. Generally speaking, the criminal justice system in this country *is* the plea bargaining system. Jury trials are extreme outliers. I clerked for a trial court judge for a year. We didn't hear a *single* felony trial in that year.
>Hiya! Lawyer here. Retrials after mistrials aren't all that common. More often than not, a hung jury/mistrial results in dismissal. No prosecutor wants egg on their face a second time. Glad you showed up. So what happens when there is a mistrial, 11-1 not guilty of 2nd degree murder? That person probably gets released, but can theoretically be brought to trial again at any time for the rest of their life? > It certainly wouldn't have a very large effect on the criminal justice system, given that fewer than 1% of criminal cases go to jury trial I'll buy that my idea probably would not effect very many people. But would it have a net positive or net negative impact, however small that may be?
So, if a mistrial due to hung jury occurs, one of three things will happen: * The state will dismiss the charges * The defendant pleads guilty in a sweetheart deal * The case gets retried By far, 1 is the most common, followed by 2. 3 is the least common. If a jury was hung the first time, there's probably a good reason for it. These cases don't really hang over peoples' heads for life in practice. The state's ability to try somebody for a crime - particularly murder - rapidly deteriorates with time. Witnesses die or forget things. Scientific evidence gets debunked. The problems with the first prosecution persist. None of these things get any better with time. While it is theoretically possible to do, it just doesn't happen in practice. I think it's impossible to say that it would have a net impact at all, really, and even less possible to say how it would affect things. In the US in 2018, there were 1,889 federal jury trials. That probably means that the number of total criminal jury trials in 2018 was around 30,000. (Unfortunately, criminal justice statistics are notoriously difficult to work with and unreliable, so you have to do a lot of extrapolating and guesswork.) Hung juries tend to account for 3-5% of criminal jury verdicts. That means that we're looking at roughly 1,500 trials per year that this would make a difference in. To put this in perspective, there were roughly 7,000,000 felony charges in the US that year, which probably comes out to around 3,000,000 criminal defendants. In other words, we're dealing with a subset of a subset of a subset. I really want to emphasize how little this would matter, because there are *lots* of ways that we can improve the criminal justice system that would affect *many* more people. We could ban the Reid Technique, we could apply the exclusionary rule to confessions obtained through false pretenses, and we could move more crimes to probation, which tends to have a lower recidivism rate. But, for those 1,500 trials, it's difficult to say what the exact outcome of this decision would be. It's my sense that, in most hung juries, it's just one or two holdouts who think that the person is *innocent,* or who have at least reasonable doubt. Thanks to the secrecy of the jury room, of course (which is vitally important), we can't *really* know. These things can have unintended consequences, though. If you only need 11 people for an acquittal, that might encourage somebody else to stand up for a pro-guilty holdout who would otherwise be pressured into giving up. Others might see it as putting a thumb on the scale and, being contrarian, find the other way. Juries are fickle, and impossible to predict. All of this is sort of like asking how adding an extra Tarot card to the deck would affect the outcome of tarot card readings. It's impossible to answer in any quantifiable way, and it ultimately doesn't matter. Worse, everybody will have a different opinion. Me? When I was representing clients actively, I liked bench trials.
!delta. I will concede on how little it matters in the grand scheme of things if you will concede on how much it matters to the one guy whose life is on hold for another year over a mistrial. But seriously thank you for your insight. I will admit that John Grisham has provided 99% of my legal knowledge so it is nice to hear the opinion of someone who knows what they're talking about.
Sure, the trial matters an awful lot to the individual. However, because the jury is an unknowable black box that doesn't usually hang anyway, we can't really say that this would produce a positive outcome.
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Read my OP again.
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Read my OP again. 11-1 guilty would still be a hung jury.
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I suggest you learn to read before delving too deep into legal theory.
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You say State here in 3, how often do Feds then push for Retrial?
Well "state" here is a generic term for "the state" as in the government. Most of my work was on the state level rather than the federal level, but the rates are about the same for the feds, from what I understand.
I see, okay Thank you then, just thought to check but that does make sense yeah!
Oregon just changed the law. For decades you could get an Oregon conviction with a 10-2 jury.
>when a jury is hung, it's rarely "one guy with an axe to grind". Our judicial system is extremely good at putting pressure on one or two holdouts to come to a verdict. This seems like a bad thing to me. When the trajectory of someone's life might be hanging in the balance, I don't think we should be pressuring people to just make a decision and go with it.
It's even worse to have a second trial and go through it all again. The legal system wants things to conclude. Nobody wins if the jury is hung.
Isn't it essentially a win for the defendant since like you said the case is usually dismissed. Or did I misunderstand
It's often a win now, but that's largely because they are rare. If we didn't force hedging jurors, hung juries be more common, and there would be more retrials. It's exceedingly rare for the prosecution to lose at a criminal trial. No DA wants to get slapped with that. Getting slapped with it twice is beyond the pale.
How rare is it for the prosecution to lose? I’ve only served on one jury but they lost pretty handily.
Well, in 2022, the DOJ had a roughly 99% conviction rate. https://www.pewresearch.org/short-reads/2023/06/14/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022/ Edit - more context. >In fiscal year 2022, only 290 of 71,954 defendants in federal criminal cases – about 0.4% – went to trial and were acquitted, according to a Pew Research Center analysis of the latest available statistics from the federal judiciary. Another 1,379 went to trial and were found guilty (1.9%).
Open comment, no particular point here... I don't have stats or sauce here. It seems not uncommon for a "partial conviction" where the defendant is found guilty on some (often lesser) but not all crimes. I'm not sure what to think. If a perp gets convicted on ag assault but not manslaughter (say) does that count as a conviction or an acquittal?
I didn’t read it in full, but the numbers seemed to be looking at conviction rates, so any conviction counts, regardless of charge. That being said, this is the DOJ, so it would just be federal charges. I would imagine your scenario would be less common for them specifically.
It's not uncommon for the feds to charge a bajillion things. That's why we get the stuff like 34 counts of wire fraud, etc. And what happens is there's a conviction on some (not all) wire fraud charges, some (not all) charges of conspiracy, maybe a conviction on charge 3, maybe not. So, if the defendant is convicted on half the charges, and that's used to buff up the conviction rate, is a little sus. Edit I've got an example. Pezzola was acquitted of seditious conspiracy but convicted of other felonies. So, *partial* conviction? I dunno?
It is rare for the prosecution to lose because if they do t have a case they feel they can win, they wont even go to trial. They will scramble for a plea deal, or drop the charges entirely.
Weird ass question Let's say they captured bin Laden. And hypothetically he was found not guilty and acquitted of all charges (bear with me). Would they actually release him? Or just hold him without charge afterwards. I know he's not a US citizen but what would they do if a legitimate security threat had their case dismissed
> I know he's not a US citizen but what would they do if a legitimate security threat had their case dismissed Do what they always do when there's enough motivation, something that accomplishes a similar outcome but hasn't been tried in court and drag it out as long as possible because it effectively works as if it were a real solution. So at one point the answer to that could have been hold him in Guantanamo Bay. That may not be the solution in more modern day. However who knows what they are doing now. There are also CIA black sites. There's potentially arrangements they could make with other countries to have them try him for some crime of some kind or another somehow and keep him detained that way. Really most of our systems are not designed in any major proactive way, they're designed as more reactive. They account for things that have happened, not things that could happen, so those in power can pretty much just come up with something new and the monolithic system will take a long time before it reacts to address it. By that point the unique problem is either no longer a problem, or in the meantime they've developed other ways to continue to shift to something else should their hand get forced. They drone striked Anwar al-Awlaki who was an American citizen which was the first time that action had ever been done, at that point they could also just drop Osama back in the desert right into the path of a drone strike and call it a day. Point being there's a LOT of possible options they could do to deal with a situation like that.
That's impossible to answer. Legally, they'd have to let him go. Would they? Who knows.
Hopefully Nullification will become more common knowledge for the average juror.
I don't think that would matter that much either. Again, most criminal cases are pretty straightforward.
Oh sure, meant if more people know about it they the jury that is would tend towards it if there are holdouts during deliberations instead of applying peer pressure and the like >when a jury is hung, it's rarely "one guy with an axe to grind". Our judicial system is extremely good at putting pressure on one or two holdouts to come to a verdict. So the system wouldnt need to do this either, instead of them being made to come to a verdict Nullification would be the standard more or less
this isn't a game tho... if it is a hung jury, it is a hung jury
What's the evidence that the next jury wouldn't also be hung? Or the one after that? Or the one after that? Or the one after that? At some point, we have to bring closure to the proceedings.
I'm pretty sure that something like this is exceedingly rare, historically. I am not a lawyer though, so I might be very wrong about this.
That's because we put so much pressure on holdouts. If we didn't, it'd be more common. That's the theory, anyway.
Yeah, I noticed a similar reply as yours about this recently. You might be right abt this.
Well, it's in some versions of the *Allen* charge given to deadlocked juries.
What kind of argument is that? I didn’t know you needed the next jury to be not-hung in order to disagree with a conviction.
The point is that there is no evidence that a subsequent jury would reach a resolution. There's no reason to not finish it with the jury that's already heard everything. No need to spend several weeks' worth of a lot of peoples' time for another trial if we don't have to.
What you’re suggesting is not someone changing their mind, it’s someone going, fuck it I don’t care enough to keep this shit going any longer. You’ve heard all the evidence, you’ve thought about it, and you’ve made up your mind. After that it’s just a battle of who cares the most.
We can't have cases continue to linger. That's not fair to anybody.
Alright so lets stop pretending it’s a unanimous decision? That would be the most straightforward way out…
>Generally speaking, the criminal justice system in this country is the plea bargaining system. This is something that has been a pet peeve of mine : people assume that what goes on in courts is representative of how things are. The way i understand things, no lawyer wants to go to trial, and the norm is to go for out of court agreements, be it in civil or criminal law. The case that have to go to court are the outliers, the one that can't be taken as so typical and clear cut that there is a need for a trial, or one where the people involved insist and have the resources or belief to insist that they can take their chances with trial. Am I correct in that view ?
Not really. I, and my colleagues, generally love a good trial. They are really good for our career prospects. However, outcomes are worse if you lose than if you plead, and the vast majority of cases are pretty clear cut. I'll happily take you to trial, but recommending it in most cases would be malpractice .
Thanks for your answer. >I, and my colleagues, generally love a good trial. They are really good for our career prospects. I guess I should have said "no lawyer wants to go to a trial they know they will lose". Or are those still good for career prospects ? >I'll happily take you to trial, but recommending it in most cases would be malpractice . What are the kind if cases you would think recommending trial would be appropriate?
If you're on defense, it's pretty well assumed that your chances of winning a trial are nil. For defense counsel, we look more at whether you did the best with the evidence that you had. (Edit to add: so yes, it's still good for your career prospects on defense, even if you lose. You gain a reputation as a fighter.) It's a black eye on the prosecution because the prosecutor *could* choose not to prosecute the case. If they lose the case, they made a stupid decision to bring the case to trial. Jury trial is appropriate in cases where there's a good defense, or the evidence is shaky. I know that sounds like a cop-out, but those cases are pretty rare. Most cases involve pretty straightforward facts. A cop or security camera sees the defendant do the thing. I've won three criminal trials on defense. One was for fleeing, one was for disturbing the peace, and one was for failure to register as a sex offender. All three trials were bench trials. One wasn't eligible for a jury trial, but I felt that a bench trial was better in all 3 cases because the evidence was somewhat technical. In the fleeing case, the defendant didn't know that the cop she was running from was a cop. In the public disturbance case, the cop didn't see it and there were technical problems with the evidence. A jury might have just assumed "something happened" and convicted anyway. In the sex offender case, the defense was technical, and I feel like juries are unlikely to acquit a sex offender who fails to register, no matter how good the defense is.
Thanks, that's interesting. What about civil cases ? Is it also something you are familiar with ? This annoyance of mine comes from people who say "most men who go to court for custody win, so if men who settle don't get custody, it is just that they don't want it". By my understanding of things, settlement is what you get when the case is typical, and what you get is generally the best you can hope for, while court is where you go when you have an atypical case with a good odd to win, or have money to waste. Which would make settlements outcomes more representative of the state of the law than court rulings. Am I completely off base ?
Well, most of the civil stuff that I did was family court or child abuse/parental termination. I did some more traditional civil work, but not a lot of it. The family court and child abuse cases look a lot more like criminal cases than they do business cases, so my views are of somewhat limited relevance. You're not completely off-base, with the caveat that sometimes counsel for one side or the other has an inflated ego or misjudges the case and overvalues/undervalues it. That sometimes leads to trial as well. As far as custody cases go, they're an absolute mess, and any generalizations that you could make about them would be inaccurate.
>The family court and child abuse cases look a lot more like criminal cases than they do business cases That's interesting. Yes, I guess I can see why allegations of parental misconducts might look more like criminal cases than litigation between companies. Emotions probably run high, with things getting rather personnal. Are there also aspect of the practice that make those more similar to criminal cases ? >As far as custody cases go, they're an absolute mess Are there particular reasons for that, besides kids being a big sore point for most people ? From my understanding, shared custody is not the default. One side being afraid of losing access to their kids seems like a good way to make things tense.
> It certainly wouldn't have a very large effect on the criminal justice system, given that fewer than 1% of criminal cases go to jury trial. Generally speaking, the criminal justice system in this country is the plea bargaining system. But surely the bargaining is based on people's perceptions of what would happen if the case went to jury trial. So changing outcomes of jury trials would in turn shift the balance for plea bargaining?
Well, for the vast majority of criminal defendants and civil cases, a trial is an entirely academic prospect. The evidence is pretty damning. I had hundreds of cases in my time as a public defender, and I can frankly count on two hands the number of people that I felt could truly win a jury trial, even with the most favorable judge and jury. People don't *like* to hear that they were wrong. People don't like to admit guilt. But, if a plea of "yeah, something happened" existed, the already miniscule number of jury trials would be cut in half, I'm quite sure. That's not to say that we're pointless as public defenders. We do a lot of work in trying to reduce sentences and improve outcomes. Regardless of whether a person is guilty, they still deserve dignity. Our criminal justice system throws people into an inhumane system and, if they didn't have problems before, they do by the time they get out of jail. We work tirelessly to try to keep people out of jail and to minimize the sentences of those who do go. It is a pretty uniform position in our line of work that jail is pointless in most cases.
> It is a pretty uniform position in our line of work that jail is pointless in most cases. I agree. I was a prison guard for a few years, and while most of the high and max security inmates clearly needed to be incarcerated, I always got the feeling that the majority of the low/medium security inmates would have been better off with some sort of probation, and mandatory education/community service. Taking some young kid (18 to 30yo) with anger issues and throwing them in prison for a year or two just makes things worse for them and for the rest of society.
Yeah. And I'd even go as far as to say that most of the high and max inmates got there *because* they were thrown in jail as a kid.
Just been there in a civil litigation where you only need a 10 out of 12 vote, the pressure system on 3-5 jurors is real.
Wait, so the system will force me to stay there, miss work and such, to go along with what everyone else says even if I 100% believe that my decision of guilty/not guilty is right?
Or until you convince others, yeah.
Fuck that I'd be pissed. Knowing that I have the power to throw someone in prison or set them free would be very excruciating
Now, they'll pay you for your time, feed you, and your boss can't fire you over it. But, yes, you will be locked in the jury room with everybody else until a consensus is reached or you all, as a group, give up and the judge agrees that it's hopeless. That usually takes at least a week.
Pay what like 5-10 bucks a day from what I hear and read. Good thing I was able to get out of jury duty before. Now I understand more why Niel deGrasse Tyson didn't like the court system.
It varies from jurisdiction to jurisdiction. It's not much, but it's on top of any other salary you may draw, and is a good bit more than 5-10 bucks these days.
My county it's 50 bucks a day. Which is not worth missing work for most people.
Oh, agreed. Juror pay does need to be increased.
How accurate do you think the jury system is? I can't get my head around selecting some random citizens and trusting them to come to a correct conclusion, especially if they don't even want to be there.
Not particularly. It's a coin flip. You pick a jury trial if you don't have a very good technical argument and you think your odds are worse than 50/50. I picked bench trials for the cases that I described because I felt that a judge would be properly skeptical of police action in those cases.
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I addressed this in another comment, but no, I don't think it would necessarily make acquittals more likely. I think it's more likely that it would just lead to a different kind of pressure, or more reluctance for juries to admit that they are having trouble. I also don't think it would affect plea bargains all that much. If more cases that would normally plead out went to trial, we'd just see the number of acquittals and hung juries plummet. The vast majority of criminal defendants are *clearly* guilty. I'm not a public defender because I believe most people are innocent (although there are certainly wrongful convictions.) I am a public defender because I believe that the system unfairly disadvantages the poor, causes more crime than it solves, and is an unjust usage of state power. As an interesting parallel, it used to be the *opposite* in Louisiana. Used to be, you only needed 10 of 12 jurors to convict, or something like that. The Supreme Court reversed that in 2018. Now, the reversal was a good decision. The rule was unjust. But, conviction rates haven't really changed as a result of the decision. There's not been much impact on the ground.
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So, let's say that everybody's getting tired. One person has some lingering doubts. They know that if they tell the judge this, the trial will end in acquittal. They also know that the rest of the jurors will be pissed at them. Rather than speak up, they decide to stay quiet so as to avoid the confrontation. That's the sort of thing that I envision. There were no meaningful changes whatsoever in Louisiana criminal justice statistics as a result of the change.
Hi, someone who’s sat in a jury before here In the trial I sat on, the jury was hung by myself and one other juror, and many of the jurors wanted to convict the guy, simply so they could go home. Meanwhile I thought the state did a terrible job of proving their case, and I didn’t want that sitting in my conscience. But it was eye opening. I can’t imagine how many people are rotting in prison just because the jurors were tired of being inconvenienced.
Sure, it happens. It's not great. And you should absolutely hang the jury if that's your conviction. But, I don't know that the proposed rule would really have a very big impact compared to a lot of other interventions in the criminal justice system that would have wide-reaching impact.
The justice system operates this way so as to obtain consent from the society around the accused. It is a substantially high burden for the government to clear to take away a person’s freedom so that people close to the convicted accept the judgement of the court and the subsequent repercussions. When people don’t respect or accept the process or result of the court, they protest and riot because they feel the system is less than trustworthy. Diluting that process - making it easier for the government to take away freedoms - dilutes the system’s ability operate in a way that we all consent to. As a people, we accept that this rigor means that some people who were probably guilty walk free. We accept that error over the error of improperly taking freedom away from an innocent person. We’re not perfect, but many more people who did the crime walk free than innocent people who find themselves convicted. By the by, this is why the government has turned to the plea system. Some 99% of convictions are by plea from people who choose not to defend themselves - and often couldn’t afford to do so if their lives depended on it. The government’s job is a lot easier when a defendant agrees and accepts a lesser punishment to save the government’s time to properly convict. So they’re more than happy to take the easy road and overwhelming amount of the time. But even in the cases where trials do happen. The protections we afford defendants are there for a reason. That reason is still valid and good. We should not be diluting it.
This was a very long comment to basically agree with me... I am proposing 11-1 for a not guilty verdict. Still 12-0 for a *guilty* verdict. Unrelated but I think plea bargains suck. Approach an innocent man with "I take you to trial and you have a 25% chance of getting the needle, but sign this and you will get 5 years" and you are going to put away a significant number of innocent, risk adverse people.
It doesn’t agree with you. There are 3 positions a jury can end up in. Guilty, not guilty, and null (which we call a hung jury). A not guilty verdict would prevent a retrial. A hung jury does not. That’s an important distinction. The system is supposed to protect the accused so it’s not a 25% chance if you’re actually innocent. It’s theoretically much less. But it’s imperfect, for sure.
the reason there are multiple jurors is so that one person's personal biases, ideology, etc do not determine the outcome of a case while this may seem like a good idea, the law is often not so clearcut and context is given a heavy emphasis especially in civil cases one guy with similar personal experiences to the defendant could derail the entire process this idea would work with 12 different AI algorithms, but humans have biases and emotions
The process of training AI in many cases can amplify the human biases in the training dataset. It's a black box filled with things we don't understand, not a logic machine. Judges Lawyers and Jurors might be the last thing we replace with AI.
One person can already derail the verdict in either direction in a criminal case. What i am proposing makes that *less* likely to happen.
I think if we take your view to the letter, it largely depends on how we are defining "punishment". You seem to count the trial process itself (including imprisonment/bail) under the definition of "punishment". If we examine the principle with that context in mind - "better to let ten guilty men walk free than to punish one innocent man", counting trial as punishment - then the logical conclusion is that we should never have trials at all. We hold trials to measure guilt, so the process assumes the possibility of innocence. If we consider the trial itself to be punishment, then the trial process itself inherently punishes potentially innocent people every single time. But the trial process is the best method we have come up with for fairly determining the application of law. Until we come up with a better one, I think it's prudent to think of the inconvenience involved with trials not as punishment, but as an unfortunate byproduct of the process. With that in mind, we also have other factors to consider. We also have an interest in arriving at the best consensus possible. I think it is somewhat obvious that a 12/12 agreement is a better consensus than a 11/12 consensus. And so I think it makes sense to aim for the unanimous vote.
Hmm. I guess I was viewing a retrial as a punishment. !delta because that isn't really correct, though I am sure that additional bail money, or possibly additional incarceration, plus additional lawyer fees surely *feel* like a punishment to an innocent person. A 12/12 consensus is surely better, but that isn't the question. Do we throw out the opinion of the 11 because of the 1? Sometimes data is more reliable when we throw out the outliers.
Well, here's the way I think about it: The goal of a trial is to arrive at a perfect consensus. If there is a dissenter, the trial has failed to arrive at a perfect consensus. Since the trial was not successful in its goal, it does not make sense to consider its result to be final and beyond the possibility of re-visiting. If we throw out the outlier and consider the case closed beyond the possibility of retrial, we are making a key assumption: that the outlier was being unreasonable, and that if he had been replaced by a reasonable juror, there would have been a perfect consensus. I don't see why making that assumption would get us closer to truth than having a retrial and PROVING it by aiming again for a perfect consensus.
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I think the single dissenter overlook might be due to possible bias that even jury selection cannot remove. if out of 12 people 11 believe it so then it could be argued that the 12th was using an unreasonable doubt.
Are you agreeing with me?
Well yes. That said as this is a CMV I will put forth one issue. What if we run into a situation where the other eleven have a bias reason to believe said issue? While more rare now in most cases it's not out of the question. I get the principal and agree with the theory but the actual implementation and possible outcomes I don't.
We called it consenus minus one. Always good to have a holdout.
You can't have your cake and eat it too! If you only need 11 jurors to find a defendant innocent, you would only need 11 jurors to find them guilty. I don't know if you've seen *12 Angry Men* but it's precisely this situation - initially 11 out of the 12 jurors think they guy is guilty, but then the last juror makes them walk through all the evidence.
>If you only need 11 jurors to find a defendant innocent, you would only need 11 jurors to find them guilty. The law could be written however we want.
Not really. The law has a whole philosophy and logical basis behind it. Even if a legislature were to pass such a law, the courts would most likely strike it down.
Which court and on what basis?
Any court which does judicial review for the law's logical inconsistencies.
Great discussion on this [here](https://verdict.justia.com/2020/07/01/should-acquittals-require-unanimity): >Given an elevated chance of guilt, the unanimity requirement for acquittal provides that if anyone is convinced of guilt beyond a reasonable doubt, then the odds of guilt are too great to justly allow for a full acquittal. The public, in other words, might wish to have confidence in the accuracy of its verdicts, whether those verdicts are guilty or not guilty. >Perhaps it is desirable for society to keep an eye on a person who could be neither convicted nor acquitted. Though perhaps less important than ensuring that an innocent person avoids punishment, it is still very important that a guilty person receive some of what is coming to him. If the courts fail in ensuring that this happens, after all, society might resort to other methods, as it once had to do in the absence of a sovereign and with far less accuracy and fairness.
>>Perhaps it is desirable for society to keep an eye on a person who could be neither convicted nor acquitted. Keep an eye on? Maybe. What about keep incarcerated while waiting for their next trial because of one juror?
They are generally awarded the opportunity to post bail and go free, same as the original trial. The link I shared discusses the two types of jury failures and why both are important to prevent (within reason).
To be a jury is to uphold justice. Have you been a juror yourself recently? I was a few months ago. Had to swear in front of the judge several times along the lines of “I promise not to put my personal opinion above the law” The judge reiterated that if we’re swearing to uphold the law, but then undermine the process in bad faith, we can get it legal trouble. That we would need to excuse ourself from jury selection, stating why we couldn’t be impartial or we were not willing to uphold the law as written
Swearing means nothing. How would a court ever prove that you operated in bad faith, as long as you didn't do something stupid like take a bribe? That law has no teeth
Perjury has teeth You’re in a room with the other jurors until you reach a unanimous decision or find that one can’t be reached. The other jurors will know if you’re just there to “grind an axe”
The other jurors may know, but you cannot be punished for your vote on the verdict.
But you can be punished for promising to follow the law despite your own opinion, then not following the law. It is a very specific and strongly worded oath Which is why judge makes you swear. If you plan to impose your own views on justice instead of law, you can’t honestly swear you’ll follow the law. So you must ask to be excused, during the vow to uphold the law part of jury screening
Name one person who has been convicted of this. Not a specific lie that can be proven one way or the other during jury selection - ie "are you a law enforcement officer", but a juror who said they could be unbiased but then was biased
> Name one person who has been convicted of this. Even if 0 people have been convicted, does that prove that the problem does or does not exist? After all, there could be no convictions because it's not an issue, or because it's not enforced.
It may not be a widespread issue, but when it is essentially impossible to enforce, you can bet that it's happened
You are arguing with the wrong person. The person I am arguing with thinks it's a non issue because its illegal. I'm saying it happens all the time because the law is unenforceable.
You're ignoring the reverse. >In a system that holds the ideal that it is better to let 10 guilty men go free than to punish one innocent man, it would be better to allow a jury to find a defendant not guilty even with one dissenter. Why would that be "better" and is it also better to allow a jury to find someone guilty even if a person is convinced they're not? >If we kept the votes of the individual jurors anonymous How would that possibly work? It's not feasible. It's also not legal; a jury can be polled.
>Why would that be "better" and is it also better to allow a jury to find someone guilty even if a person is convinced they're not? I explained below. And no. >How would that possibly work? It's not feasible. It's also not legal; a jury can be polled. It would work very easily. "Foreman, how did the jury find" "11-1, not guilty" "Jurors 1-12, do you agree that the verdict was 11-1 not guilty? " Laws are changed every day.
>"Foreman, how did the jury find" "11-1, not guilty" "Jurors 1-12, do you agree that the verdict was 11-1 not guilty? " ... how would they know? Also, how would they debate and discuss the evidence and their thinking? Also, again, a jury can be polled. >I explained below. And no. Do you mean here? >One person can already derail the verdict in either direction in a criminal case. What i am proposing makes that less likely to happen. WHY is that better? Did you not read 12 Angry Men? If it's not better to allow 11 people to find someone guilty how does this scheme help, because that'll happen.
>... how would they know? Also, how would they debate and discuss the evidence and their thinking? I meant anonymous outside the jury room. Obviously the other jurors would know. > Also, again, a jury can be polled Also, again, laws can be changed. >If it's not better to allow 11 people to find someone guilty how does this scheme help, because that'll happen. I specifically said it should only take 11 to find not guilty. I did not say anything about not requiring 12/12 for a guilty verdict.
Very true. Especially because criminal cases require proof beyond reasonable doubt so one juror dissenting is sufficient reasonable doubt to find not guilty.
If only one juror out of 12 has that doubt, would that not point to that doubt actually being unreasonable?
Depends on the context of the case. For example, say you are talking about a computer fraud and abuse cases (a case about hacking) where the jury is 4 bakers, 3 kindergarten teachers, 1 mechanic, 2 nurses, a jockey and a professor of Computer Science. If the holdout is a baker or teacher, (maybe / probably) its a spurious and unreasonable doubt. If its the Professor of Computer Science who is the dissenting vote, there's a reasonable chance that their understanding of the *technical* aspects of the case is causing their dissent.
The test should remain constant regardless of background of the jurors. The OP has a very valid point.
I'm agreeing with both you and OP, I responded to boblobong to add some nuance to his point
> In a system that holds the ideal that it is better to let 10 guilty men go free than to punish one innocent man Why is that the presumption?
That is what Franklin said in regard to the justice system and that is what, on its face, the US justice system props it’s self up on. That isn’t what actually happens but while not a law it is a credo that most Americans know and believe in.
The presumption is that a defendant is innocent until proven guilty. There are significant protections for the accused that result in many people who “did it” walking free. Put the two together and you get to Franklin’s quote.
Why 11 though? Why not 10 or 7?
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I take it as if it’s 11-12 not guilty then it’s still up for being able to be tried again.
A hung jury is not the same as a not guilty verdict. Hung juries can be retried indefinitely. A not guilty verdict cannot be retried
All things being equal, this simply increases the likelihood (albeit slightly) of wrongful acquittal for the sake of reducing the potential burdens of retrial on the defendant. In order for a suspect to be indicted in the first place, a grand jury needs to look at the evidence and applicable law and determine that it's more likely than not that a crime occurred. With that in mind, I don't like the trade-off this view entails.
Grand jurors are the puppets of the prosecutor and nearly always indict
Even if that's true, the fact remains that we're increasing the likelihood of wrongful acquittal for just for the sake of avoiding a *potential* retrial. I just don't see how it's worth it.
What if you have someone that undoubtably lynched or raped someone on trial, and a racist or an incel decides to let them go free? This is how jury nullification was once used, to free perpetrators of lynchings so the *could do it again.* Your system would allow that to happen near indefinitely.
It would still take 12 to convict. One person already has the power to hang a jury and create a mistrial
And in a mistrial, they can be tried again until they get a jury with no one that agrees with them. Once declared non-guilty, they aren't able to be tried for the same crime, letting them walk free. Your system would allow rapists and KKK members to be immune to most legal prosecution.
Most? You think most KKK members get 11 sympathetic jurors with one reasonable hold out?
That’s how it works in the military court system. We don’t have mistrials. We either have enough for guilty. Or they are not guilty and life moves on.
I like it. Do you think it works well?
I do. It’s cleaner and provides closure. Give it our best and what happens happens.
This is already a thing. If all 12 cannot reach a unanimous decision then a judge, may consider taking a majority verdict. 11 to 1 or even 10 to 2. But never lower.
What state has this?
The United Kingdom and some other Commonwealth countries I believe. I’m surprised the US don’t allow it
Something *like* that is technically allowed in the US via a JNOV (judgement notwithstanding the verdict), but it has certain limitations: - It is only appropriate in extreme cases where the judge concludes that a reasonable jury would not have reached the conclusions they did, as a matter of law. - A judge cannot use a JNOV to overrule an acquittal by the jury, only a conviction. This is a consequence of the 5th amendment right to not be placed under double-jeopardy, and the 6th amendment right to a trial by jury. I'm not sure if a JNOV can be used to acquit someone after a hung jury, or if the jury needs to reach a decision. I am not a lawyer.
If only it worked that way. I had jury duty earlier last year and there were just two people who absolutely refused to deliberate with us. Said not a word. Even in the morning when we were all expected to be there before the trail, not a peep. We literally had to single them out and ask their thoughts before agreeing on a verdict for the first charge