1. The Illusion of Unanimity
Edward P. Schwartz, Ph.D., M.S.L.
© 2016 DecisionQuest | 1

2. Competing Conceptions of Jury Deliberations
From the majority opinion in Apodaca v. Oregon (at
414):
We cannot assume that the majority of the jury will
refuse to weigh the evidence and reach a decision upon
rational grounds, just as it must now do in order to
obtain unanimous verdicts, or that a majority will
deprive a man of his liberty on the basis of prejudice
when a minority is presenting a reasonable argument in
favor of acquittal. We simply find no proof for the notion
that a majority will disregard its instructions and cast its
votes for guilt or innocence based on prejudice, rather
than the evidence.

3. Competing Conceptions of Jury Deliberations
From Douglas’s Dissenting Opinion in
Johnson v. Louisiana (at 388):
The diminution of verdict reliability flows from the fact
that nonunanimous juries need not debate and
deliberate as fully as must unanimous juries. As soon
as the requisite majority is attained, further
consideration is not required either by Oregon or by
Louisiana, even though the dissident jurors might, if
given the chance, be able to convince the majority.
Such persuasion does, in fact, occasionally occur in
States where the unanimous requirement applies… The
Court now extracts from the jury room this automatic
check against hasty factfinding by relieving jurors of the
duty to hear out fully the dissenters.

4. Two-Step Jury Decision-Making
© 2016 DecisionQuest | 4
Evidence
Testimony
Standards
The Facts
of the Case
The Verdict
Information
Processing
Objective
Evaluation
Values and
Justice
Subjective
Evaluation
Information
Aggregation
Preference
Aggregation

5. Deliberative Democracy and the Jury
Abramson’s Conclusions:
Embrace Diversity in Population
Deliberations should include all
Voices
Peremptory Challenges are
Undemocratic
Verdicts should reflect Common
Values
Unanimity improves Completeness
and Inclusiveness
“But Jeff, what happens
if they can’t agree?”

6. Deliberative Democracy and the Jury
Democratic Foundations:
Jurors exercise discretion
Reasonable disagreement about exercise of discretion
Juries should represent community – cross sectional
All votes should count equally
All jurors should vote sincerely – reflected in verdict
System must resolve cases in presence of persistent
disagreement
“But how often does disagreement really persist?”

7. The possible consequences of persistent juror
disagreement
Consensus
Failure
Unanimous
Consensus
Deliberations
Acquittal
Conviction
Insincere
Voting
Hung Jury
??? %
??? %
Conviction ??? %
6 %
Acquittal ??? %
“Not a big problem”
“But what about all of this? Is this a big
problem?

8. How often can’t they agree?
“If it were entirely up to you as a one-person jury, what would
your verdict have been in this case?”

9. Distribution of Case Outcomes – Waters and Hans Study 2009
368 Total Felony
Trials
3,362 Jurors
Four Jurisdisctions:
– Bronx, New York
– Washington, D.C.
– Los Angeles,
California
– Phoenix, Arizona
© 2015 DecisionQuest | 9
(103)
Acquittals
28%
(32) Hung
9%
(233)
Convictions
63%

10. Distribution of Case Outcomes – Waters and Hans Study 2009
© 2015 DecisionQuest | 10
(232)
Convictions
(233) Convictions
(1) 4 Conforming
Dissenters
0.4%
(17) 2 Conforming
Dissenters
7%
(7) 3 Conforming
Dissenters
3%
(56) 1 Conforming
Dissenter
24%
(152) Unanimous
Consensus
66%

11. Distribution of Case Outcomes – Waters and Hans Study 2009
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(103)
Acquittals
(103)
Acquittals
28%
(32) Hung
9%
(232)
Convictions
63%
(103) Acquittals
(4) 4+ Conforming
Dissenters
4%
(17) 3 Conforming
Dissenters
17%
(23) 2 Conforming
Dissenters
22%
(47) 1 Conforming
Dissenter
46%
(12) Unanimous
Consensus
12%

12. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 12
(103)
Acquittals
28%
(32) Hung
9%
(233)
Convictions
63%

13. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 13
(103)
Acquittals
28%
(32) Hung
9%

14. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 14
(103)
Acquittals
28%
(32) Hung
9%
(152)
Convictions
41%

15. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 15
(32) Hung
9%
(152)
Convictions
41%

16. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 16
(32) Hung
9%
(152)
Convictions
41%
(12) Acquittals
3%

17. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 17
(152)
Convictions
41%
(12) Acquittals
3%

18. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if every juror had voted sincerely?
© 2015 DecisionQuest | 18
(152)
Convictions
41%
(12) Acquittals
3%
(204) Hung
56%

19. Confronting the Reality of Criminal Jury Verdicts
Unanimous
Consensus
Unanimous
Verdict ≠
Consensus Failure is:
• Normal
• Prevalent
• Problematic
• Masked
The Unanimity Requirement
is:
• Arbitrary
• Deceptive
• Inefficient
• Undemocratic
“What to do When Jurors Disagree...”

20. If Not Unanimity, What?
Is Unanimity Really the Default?
1. The rule is a historical relic from a time when jurors were
“compurgators” – witnesses who testified about disputes back
in the 14th century.
2. England (Remember them?) went to 10-2 verdicts in 1967.
3. Most of the States of Australia use non-unanimous verdicts.
4. Louisiana (9-3) and Oregon (10-2) haven’t used unanimity for
centuries.
5. Scotland uses 15 person juries, deciding under simple majority
rule.
6. All of the “mixed systems” around the world use something
between simple majority and 2/3 majority rule.

21. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 21
(103)
Acquittals
28%
(32) Hung
9%
(233)
Convictions
63%

22. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 22
(103)
Acquittals
28%
(32) Hung
9%

23. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 23
(103)
Acquittals
28%
(32) Hung
9%
(231)
Convictions
63%

24. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 24
(32) Hung
9%
(231)
Convictions
63%

25. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 25
(32) Hung
9%
(231)
Convictions
63%
(99) Acquittals
27%

26. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 26
(231)
Convictions
63%
(99) Acquittals
27%

27. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 27
(231)
Convictions
63%
(99) Acquittals
27%
(12) Hung
3%

28. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 28
(231+21)
Convictions
69%
(99) Acquittals
27%
(12) Hung
3%

29. Distribution of Case Outcomes – Waters and Hans Study 2009
What would have happened if the Louisiana 9-3 voting rule were
used?
-- with sincere voting!
© 2015 DecisionQuest | 29
(231 + 21) Convictions
69%
(99 + 4) Acquittals
28%
(12) Hung
3%

30. ABA Recommends only Unanimous Verdicts