EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 17, 2010

Article Of Interest: Allison Orr Larsen's Bargaining Inside the Black Box

The vast majority of criminal cases are resolved by compromises in the form of plea bargains. Moreover, the purpose of Federal Rule of Evidence 410, which deems inadmissible statements made during the course of plea discussions, is to encourage such compromises. So, what happens to criminal cases that go to trial and are submitted to jurors for deliberations? Well, according to the terrific new article, Bargaining Inside the Black Box (forthcoming, Georgetown Law Journal), by Allison Orr Larsen, an Assistant Professor at the William & Mary Law School, most of these cases are resolved by compromises as well, in the form of compromise verdicts (including, but not limited to, verdicts reached when jurors, to avoid deadlocks, concede some issues so that other issues will be resolved in their favor). As Professor Larsen notes, these compromise verdicts are viewed quite differently than plea bargains: They are "generally dismissed as flaws in the jury process - examples of maverick jurors dishonoring their oath to uphold the law, and reasons why the jury should not be trusted with more power, for example, to participate in sentencing decisions." But should they be? Professor Larsen's fascinating argument is "that the best way to evaluate intrajury negotiation is to juxtapose it with the negotiation that dominates our criminal justice system and has already been subject to detailed study."

And by doing so, she reaches the conclusion

that while steps can and should be taken to improve intrajury negotiation, the common critiques of compromise verdicts - that they are lawless flaws in the jury system - do not have the force they might in a world without plea bargaining....Instead of quickly dismissing intrajury negotiation as an illegitimate process,...we should recognize it as a reality and seek to improve it with lessons we have learned from plea negotiations.

In Part I, Professor Larsen sets forth the reasons why it is likely that jurors compromise. She starts with two observations: (1) that criminal jurors commonly have a menu of options before them (such as lesser included offenses); and (2) that evidence shows that judges, prosecutors, and defense attorneys are keenly aware that juries compromise. Professor Larsen then proves that this awareness is well founded by citing fascinating  

-jury survey data from the National Center for State Courts which show the prevalence of jury compromises (The most interesting statistic to me was that 54% of jury verdicts were rendered with at least one juror whose personal belief diverged from the final verdict); and

-results of mock jury simulations, which deal with the cognitive bias known as framing and the effects of multiple verdict options on deliberations (The most interesting information to me was that Scottish criminal jurors have three options: "guilty," "not guilty," and "not proven").

In Part II, Professor Larsen draws the analogy between plea negotiations and intrajury negotiations:

-they are both confidential enterprises;

-they both often involve verdict-driven deliberations

-jurors have a drive to compromise that is not all that different from the drive of prosecutors and criminal defendants to compromise;

-they are both subject to cognitive biases such as framing and anchoring; and

-they are both almost certainly here to stay, so it makes more sense to look at intrajury negotiations as a reality that we need to address rather than a problem that we must (try to) avoid (as when plea bargaining was "officially" prohibited and defendants were told to deny that any promises were made to them).

In Part III, Professor Larsen considers the differences between the two types of negotiations:

-jurors lack information possessed by prosecutors and criminal defense attorneys but, inter alia, they lack the "agency costs" that burden their counterparts;

-there is (usually but not always) an information and power imbalance between prosecutors and criminal defense attorneys while jurors (usually but not always) are relative equals;

-jurors use substantive law during intrajury negotiations differently than prosecutors use substantive law in their plea bargaining choices.

Finally, in Part IV, Professor Larsen asks whether compromise verdicts are indeed compromised or whether the conventional thinking misses the mark. And her conclusion is that "when intrajury negotiation and plea negotiations are juxtaposed, many objections to the former lose their force, and - perhaps more importantly - the analogy sheds light on important potential reforms." Specifically, she notes that

-while institutional limitations inherent in the jury system make good negotiations difficult, those limitations aren't quite as severe as we might think and no more severe than the limitations on the plea bargaining process (and the former limitations can be somewhat alleviated by, inter alia, informing juorors of some of the sentence implications that arise from the different offenses on their verdict forms);

-while compromise verdicts dilute the reasonable doubt standard, so do plea bargains (and the former dilution can be diminished in part by more forcefully instructing jurors that they don't need to reach a verdict);

-compromise verdicts are not jury nullification and at worst are "nullification light," an important backstop to protect defendants against the established "reach a plea bargain or face the trial penalty" system;

-compromise verdicts are no more an abandonment of the quest for truth than plea bargains.

Professor Larsen's article is both incredibly well written and incredibly persuasive and I highly recommend it to readers. I asked her what led her to write the article, and she responded:

I have always been fascinated with juries.   And after (believe it or not) serving on a jury myself, my fascination with the subject peaked.  I grew particularly interested in the negotiating dynamic that almost inevitably follows any time you lock 12 very different people in a room and tell them they can’t leave until reaching a unanimous verdict.   It seemed to me that when multiple verdict options are present (as is generally the case with lesser included offenses), a compromise verdict – a deal among jurors in order to achieve unanimity on some mix of acquittals and convictions – is almost unavoidable. 

After doing some research into the empirical jury literature, I quickly discovered that compromise jury verdicts are quite common and well documented.   I was struck by how similar intrajury negotiation is to plea negotiation – the actors involved do not all view the case the same way, but they have incentives to reach a compromise, and they bargain with each other over the right outcome until ultimately making a deal.  Surely there are significant differences between the two negotiations – and my paper discusses the implications that flow from these differences.  But at the end of the day I was surprised that compromise verdicts are almost universally thought to be flaws in the jury system.  This struck me as odd, considering so many criminal verdicts are  the product of negotiation these days.    My paper offers a new take on compromise verdicts through an analogy to plea bargaining.   Instead of dismissing intrajury negotiation as illegitimate, I argue that we should accept it as a reality and from there seek to improve it with lessons drawn from plea negotiations.



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