Let's give them something to talk about: An empirical evaluation of predeliberation discussions

University of Illinois Law Review

Volumn 2009, Issue 4, 2009, Pages 1213-1242

  Jessica, L Bregant ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 70349626044     PISSN: 02769948     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (218)

1. Alexis de Tocqueville, Democracy in America 225 (Bruce Frohnen, ed., Henry Reeve, trans., Regnery Publ'g 2003) (1889).
2. Winebrenner v. United States, 147 F.2d 322, 327 (8th Cir. 1945).
3. W. S. Robinson, Bias, Probability, and Trial by Jury, 15 AM. SOC. Rev. 3, 73 (1950).
4. See Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV. 867, 870 (1994).
5. U. S. CONST, art III, § 2.
6. Id. amend. VI.
7. Id.
8. See, e.g., J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 129 (1994) ;
9. Batson v. Kentucky, 476 U. S.79, 82 (1986).
10. See, e.g., Remmer v. United States, 347 U. S. 227, 228 (1954).
11. See, e.g., Owen v. State, 381 N. E.2d 1235, 1241 (Ind. 1978).
12. See, e.g., Sisk v. Ball, 371 P.2d 594, 596-98 (Ariz. 1962).
13. See, e.g. Fed. R. Evid. 606 (b) ;
14. Tanner v. United States, 483 U. S. 107, 120-22 (1987).
15. E.g., Miss. model Jury Instructions-Criminal § 1.1 (Miss. Judicial Coll. 2007) ("You are not permitted to visit or view any scene or location involved in this case or make any independent investigation. Your duty is to decide this case solely on the basis of the testimony and evidence presented here in open court and not on some matter gathered outside the courtroom.").
16. See, e.g., 1 Ala. Pattern Jury Instructions Civil 1.11 (Ala. Pattern Jury Instructions Coram. Civil, 2d ed. 2007) ("If members of your family or friends or anyone else should ask you about the case, you should tell them that you are under the Court's instruction not to discuss it.... The attorneys, parties and witnesses are not permitted to talk to you during the trial.") ;
17. COLO. JURY INSTRUCTIONS, Criminal ch. 1:04 (Colo. Supreme Court Comm. on Criminal Jury Instructions 1993) ("First, do not discuss the case either among yourselves or with anyone else during the course of the trial.").
18. E.g., Cal. Civil Jury INSTRUCTIONS 0.50 (Comm. on Cal. Civil Jury Instructions 2007) ("You must not converse among yourselves, or with anyone else, on any subject connected with the trial, until the case has been submitted to you for your decision by the court, following arguments by counsel and jury instructions.") ;
19. Pattern Instructions Kan. 3d Civil 101.10 (Kan. Judicial Council PIK-Civil Advisory Comm. 2005) ("Do not make up your mind or attempt to reach a decision until the conclusion of the entire case and its submission to you for deliberation. Before that time do not discuss the case among yourselves.").
20. See, e.g., Winebrenner v. United States, 147 F.2d 322, 327 (8th Cir. 1945).
21. Here, it is important to distinguish among varied terminology. Throughout this Note, the term "deliberations" will refer only to the traditional period at the end of the trial, after all of the evidence, arguments, and instructions on the law have been presented; when jurors debate the merits of the case and choose a verdict (or, in some cases, ultimately fail to do so). On the other hand, "discussions, " or "predeliberation discussions, " will refer to conversations among jurors throughout the trial, such as those authorized by the Arizona rule discussed infra. Similarly, juries who are permitted to discuss the case during the trial may be referred to as "discussing juries, " while those who are specifically forbidden from doing so may be referred to as "traditional juries."
22. Ariz. R. Civ. P. 39 (f).
23. E.g., Ind. Jury R. 20 (a) (8) ("[J]urors, including alternates, are permitted to discuss the evidence among themselves in the jury room during recesses from trial when all are present, as long as they reserve judgment about the outcome of the case until deliberations commence. The court shall admonish jurors not to discuss the case with anyone other than fellow jurors during the trial.") ;
24. N.D.R.Ct.6.11 ("In a civil case, the court may, without objection, allow the jury to engage in predeliberation discussion. ").
25. Am. Bar Ass'n, Principles for Juries and Jury Trials 13 (F) (2005).
26. Shari Seidman Diamond et al., Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 ARIZ. L. REV. 1, 3-5 (2003).
27. See, e.g., Kinly Sturkie & Lois Paff Bergen, Professional Regulation in Marital and Family Therapy 43 (2001).
28. E.g., Winebrenner v. United States, 147 F.2d 322, 329 (8th Cir. 1945) ;
29. Gallman v. State, 414 S. E.2d 780, 782 (S. C. 1992).
30. Winebrenner, 147 F.2d at 322.
31. Id. at 329.
32. Id. at 328.
33. See, e.g., People v. Monroe, 270 N. W.2d 655, 657 (Mich. Ct. App. 1978).
34. See, e.g., City of Pleasant Hill v. First Baptist Church, 82 Cal. Rptr. 1, 32-34 (Cal. Ct. App. 1969) (noting that juror discussions were "misconduct" but refusing to reverse).
35. Perhaps because of this increased risk and circumspection when it comes to criminal trials, predeliberation discussions have been suggested only in civil trials to date. Therefore, although all of the benefits and detriments discussed are applicable to criminal trials, this Note addresses only the addition of discussions to civil trials. Perhaps if discussions gain general acceptance in civil trials, researchers may begin to explore whether they are likely to have unique effects in criminal trials.
36. Natasha K. Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model?, 45 UCLA L. Rev. 845, 861 (1998).
37. Id. at 871-72. However, judges in other states may not be as supportive of juror discussions as Arizona judges. For example, a 2004 survey of judges in Missouri, where discussions are not allowed, found that eighty percent opposed the adoption of a measure like Rule 39 (f).
38. W. Dudley McCarter, Civil Jury Reform: Is Missouri Ready for Changes?, 61 J. Mo. B. Ass'N 254, 260 (2005).
39. Lakamp, supra note 30, at 871-72.
40. Id.
41. See, e.g., John Gastil et al., Do Juries Deliberate? A Study of Deliberation, Individual Difference, and Group Member Satisfaction at a Municipal Courthouse, 38 SMALL GROUP RES. 337 (2007).
42. See Paula L. Hannaford et al., Permitting Jury Discussions During Trial: Impact of the Arizona Reform, 24 L. and HUM. BEHAV. 359 (2000) ; Diamond, supra note 21.
43. Hannaford, supra note 35, at 363-64.
44. Id.
45. Id.
46. Id. at 372. Jurors who were allowed to discuss the case during the trial did report more disagreements among themselves than those who were required to wait until deliberations. Id. While Hannaford offers no explanation for the increase in discord, it is unlikely that the jurors who engaged in predeliberation discussions simply disagreed with one another's opinions more than those in "traditional" juries. Instead, the difference in reported disagreement may reflect more willingness on the part of jurors to express disagreement. This increased willingness, in turn, may be due to the fact that the jurors are more comfortable with one another from having been permitted to have natural discussions with each other over the issue they have most in common: the trial. Alternatively, the increase in reported disagreement may simply reflect the fact that jurors who discuss the evidence throughout the trial, as compared to jurors who must wait to discuss the evidence until deliberations, have more opportunities to disagree. Either possible explanation is encouraging to supporters of discussions, because they both suggest that jurors who engage in predeliberation discussions may have more thorough and comprehensive debates about the evidence and arguments at trial.
47. Professor Diamond has produced several papers and articles based on the research she performed in the Arizona courts. See, e.g., Diamond, supra note 21.
48. Id. at 17.
49. Id. at 18.
50. Id. at 26.
51. Id. at 28, 51.
52. Id. at 51. A "technical" violation of the rule, as described by Professor Diamond, is one in which the speaking juror is not actually expressing a verdict preference, but instead inviting a preference from other jurors. For example, the question "Who would not award the plaintiff anything?" would be a "technical" violation. Id.
53. Id.
54. Id. at 23. In fact, while the Hannaford study, which surveyed jurors, found that jurors in just fourteen percent of trials admitted to discussing the case with one another, analysis of the videotapes produced by the Diamond study found that, in the "No Discuss" conditions, the case was mentioned by jurors at least once in sixty-nine percent of cases and the case was discussed multiple times in fully forty-six percent of cases. Id.;
55. see also Hannaford, supra note 35, at 371 tbl.3.
56. Diamond, supra note 21, at 51.
57. Id. at 27.
58. Id. at 63.
59. As Professor Diamond points out, empirical assumptions about juries underlie many of the arguments made on either side of the predeliberation discussions debate. For example, both sides' arguments assume that jurors will use opportunities to discuss the case if permitted. Id. at 10-13. While the Diamond and Hannaford studies were able to investigate some of these empirical claims, those studies left many of the cognitive and social assumptions unexplored, which is where this Note attempts to fill in the gaps.
60. Ariz. Supreme Court Comm. on More Effective Use of Juries, Jurors: The Power of Twelve (1994) [hereinafter Jurors: The Power of Twelve], available at http://www.supreme.state.az.us/jury/Jury/jury.htm.
61. See infra Part III. B.2.
62. See infra Part III. B.2.
63. See infra Part III. A.1.
64. Jurors: The Power of Twelve, supra note 52, at Recommendation 36. This last claim is left for future study.
65. See infra Part III. B.2.
66. Diamond, supra note 21, at 9-10. The last three claims, which pertain generally to the quality of the jurors' interactions rather than the quality of their performance, are not discussed in this Note.
67. Winebrenner v. United States, 147 F.2d 322, 328 (8th Cir. 1945) ;
68. Diamond, supra note 21, at 12.
69. See infra Part III. A.1.
70. See infra Parts III. A.l, III. B.2.
71. Diamond, supra note 21, at 12. The last several of these complaints, many of which are not unique to predeliberation discussions, are not covered in this Note.
72. Diamond, supra note 21, at 11-12.
73. Winebrenner, 147 F.2d at 327-28;
74. see also, e.g., United States v. Resko, 3 F.3d 684, 689-90 (3d Cir. 1993).
75. Winebrenner, 147 F.2d at 328.
76. See supra notes 44-49 and accompanying text.
77. 12 ANGRY Men (Orion-Nova 1957).
78. Stephen J. adler, The Jury: Trial and Error in the American Courtroom xiv (1994).
79. Paula L. Hannaford et al., The Timing of Opinion Formation by Jurors in Civil Cases: An Empirical Examination, 67 Tenn. L. Rev. 627, 638 (2000).
80. Posting of Misanthrope to Toner Mishap, http://tonermishap. blogspot.com (Oct. 26, 2007, 00:23 PST) (removed as of Mar. 12, 2008) (on file with author).
81. Hannaford, supra note 69, at 628, 637 fig.l.
82. Id. at 640.
83. Id.
84. Id. at 633 n. 47.
85. Diamond, supra note 21, at 65.
86. Although concerns about subverting the burden of proof seem to flow naturally from concerns about premature judgments, the former raises distinct psychological issues, and this Note will therefore deal with it independently. See infra Part III. A.2.
87. Diamond, supra note 21, at 64.
88. See Wendy Wood, Attitude Change: Persuasion and Social Influence, 51 ANN. REV. Psychol. 539, 542 (2000).
89. Cf. Sharon R. Lundgren & Radmila Prislin, Motivated Cognitive Processing and Attitude Change, 24 PERSONALITY and SOC. PSYCHOL. BULL. 715, 716-17, 721 (1998).
90. See id.
91. See generally Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. Gen. Psychol. 175 (1998). Confirmation bias may affect other aspects of the legal system as well. For example, one study found that investigators who are asked to name their "prime suspect" early in a criminal investigation may suffer the effects of confirmation bias throughout the remainder of the process. Barbara O'Brien and Phoebe C. Ellsworth, Confirmation Bias in Criminal Investigations 16-17 (Sept. 19, 2006) (unpublished manuscript), available at http://ssrn.com/abstract=913357.
92. See Nickerson, supra note 81, at 177.
93. Id. at 194 (citing Nancy Pennington and Reid Hastie, The Story Model for Juror Decision Making, in Inside the Juror: The Psychology of Juror Decision Making 192 (R. Hastie, ed., 1993)).
94. See, e.g., Jurors: The Power of Twelve, supra note 52, at Recommendation 48.
95. Diamond, supra note 21, at 33.
96. Id. at 31-32.
97. Id. at 27.
98. Id. at 11-12.
99. See, e.g., Reid Hastie et al., Inside the Jury 22 (1983).
100. See id.
101. Id....
102. 9Z Id. at 20.
103. Id.
104. Id. at 20, 22. Assessments of witness credibility, therefore, should play a major role in how the juror's story progresses.
105. Nancy Pennington & Reid Hastie, Explaining the Evidence: Tests of the Story Model for Juror Decision Making, 62 J. PERSONALITY and Soc. PSYCHOL. 189, 190-91 (1992). For a discussion of how the story model of jury decision making may fit into a broader "parallel constraint satisfaction" model
106. see Jennifer K. Robbennolt et al., Symbolism and Incommensurability in Civil Sanctioning: Decision Makers as Goal Managers, 68 BROOK. L. REV. 1121, 1152-53 (2003).
107. HASTIE ET AL., supra note 89, at 22.
108. Pennington & Hastie, supra note 95, at 191-92.
109. Hastie et al., supra note 89, at 22.
110. See Dennis J. Devine et al., Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychol. Pub. pol'y and L. 622, 624 (2001).
111. Id.
112. Pennington & Hastie, supra note 95, at 202.
113. Id.
114. HASTIE ET AL., supra note 89, at 23.
115. Pennington & Hastie, supra note 95, at 189-92.
116. In addition to the intuitive appeal of the claim that different people often interpret the same evidence differently, one need look no farther than any mock jury study to find empirical evidence that mock jurors, even when presented with the exact same evidence under the exact same conditions, seldom react uniformly. For an example of this
117. see Kurt A. Carlson & J. Edward Russo, Biased Interpretation of Evidence by Mock Jurors, 7 J. EXPERIMENTAL PSYCHOL. 91, 95-96 (2001) (presenting mean distortion for jurors in each condition because jurors' reactions were not uniform).
118. Diamond, supra note 21, at 63.
119. Id. at 52 tbl.6.1.
120. Id. at 52.
121. Id. at 12.
122. Evidence of the defendant's liability insurance (or lack thereof) is, of course, generally inadmissible in most jurisdictions. See, e.g., FED. R. Evid. 411.
123. Diamond, supra note 21, at 29.
124. Irwin A. Horowitz & Laird C. Kirkpatrick, A Concept in Search of a Definition: The Effects of Reasonable Doubt Instructions on Certainty of Guilt Standard and Jury Verdicts, 21 Law and HUM. Behav. 655, 666 (1996).
125. Id. at 658-61.
126. For example, pre-instruction was among the list of jury reforms that the Arizona Supreme Court Committee suggested along with predeliberation discussions.
127. See JURORS: The Power of Twelve, supra note 52.
128. See supra Part III. A.2.
129. See, e.g., Lynne ForsterLee & Irwin Horowitz, Enhancing Juror Competence in a Complex Trial, 11 Applied Cognitive Psychol. 305, 317 (1997) ;
130. Lynne ForsterLee et al., Juror Competence in Civil Trials: Effects of Preinstruction and Evidence Technicality, 78 J. APPLIED PSYCHOL. 14, 18 (1993).
131. ForsterLee & Horowitz, supra note 116, at 317;
132. ForsterLee et al., supra note 116, at 19.
133. ForsterLee et al., supra note 116, at 18.
134. Some researchers have raised concerns that pre-instruction may create a proplaintiff bias. Although there is little direct evidence of such an effect, the theory is that when jurors are instructed before a trial as to the elements that a plaintiff must prove, they create a mental "checklist" of those items and check them off as the plaintiff presents evidence. If the plaintiff "checks off each of the items, jurors may decide that the plaintiff has won before the defendant even begins to present evidence in rebuttal. Moreover, such a checklist may create a kind of confirmation bias, causing jurors to seek out evidence that supports the plaintiffs case.
135. See ForsterLee & Horowitz, supra note 116, at 306. At least in criminal trials, however, the effect seems to work in the opposite direction: criminal jurors who are instructed on reasonable doubt before trial are actually less likely to convict.
136. See Saul M. Kassin & Lawrence S. Wrightsman, On the Requirements of Proof: The Timing of Judicial Instruction and Mock Juror Verdicts, 37 J. PERSONALITY and Soc. PSYCHOL. 1877, 1881 (1979). Of course, the analogy from criminal to civil trials is somewhat limited given that the prosecution's burden of proof in a criminal case is much higher than the plaintiff's burden in a civil case.
137. The trials of O. J. Simpson and Michael Jackson, who were both acquitted, are prime examples. For a relatively mild criticism of the verdict in the Rodney King case, as another example
138. see Morton I. Greenberg, Letter to the Editor, King Verdict Shows Uncertainty of Jury Trials, N. Y. Times, May 15, 1992, at A28. For a general overview of how concerns about the jury have led to changes in the role of the jury in the area of assessing punitive damages
139. see Lisa Litwiller, Has the Supreme Court Sounded the Death Knell for Jury Assessed Punitive Damages? A Critical Re-Examination of the American Jury, 36 U. S. F. L. Rev. 411 (2002).
140. O. J. Simpson himself, speaking to reporters after a pretrial hearing in which a Justice of the Peace ruled that Simpson could be tried for kidnapping, armed robbery and other charges in November 2007, said this about juries: "If I have any disappointment it's that I wish a jury was here. As always, I rely on the jury system." Simpson Ordered to Face Trial in Alleged Vegas Heist: Simpson Charged with Kidnapping, Armed Robbery, Other Crimes, MSNBC, Nov. 14, 2007, http://www.msnbc.msn. com/id/21788130/.
141. Malcolm Hardy & Steve Heyes, Beginning Psychology 63 (5th ed. 1999).
142. Daniel J. O'Keefe, Persuasion: Theory and Research 253 (2d ed. 2002).
143. Id.
144. Tim Shallice & Giuseppe Vallar, The Impairment of Auditory-Verbal Short-Term Storage, in Neuropsychological Impairments of Short-Term Memory 11, 35 (Giuseppe Vallar and Tim Shallice eds., 1990).
145. E.g., Geoff Ward & Lydia Tan, The Effect of Length of To-Be-Remembered Lists and Intervening Lists on Free Recall: A Reexamination Using Overt Rehearsal, 30 J. EXPERIMENTAL PSYCHOL.: Learning, Memory, and Cognition 1196, 1196 (2004).
146. See Jose H. Kerstholt & Janet L. Jackson, Judicial Decision Making: Order of Evidence Presentation and Availability of Background Information, 12 APPLIED COGNITIVE PSYCHOL. 445, 451-52 (1998).
147. Id.
148. Donna M. Webster et al., On Leaping to Conclusions When Feeling Tired: Mental Fatigue Effects on Impressional Primacy, 32 J. EXPERIMENTAL and Soc. PSCHOL. 181, 190 (1996).
149. Hannaford, supra note 35, at 370.
150. See James Frank & Brandon K. Applegate, Assessing Juror Understanding of Capital-Sentencing Instructions, 44 CRIME and DEUNQ. 412, 423 (1998).
151. See Mary E. Pritchard & Janice M. Keenan, Does Jury Deliberation Really Improve Jurors' Memories?, 16 APPLIED COGNITIVE PSYCHOL. 589, 600 (2002).
152. ForsterLee et al., supra note 116, at 19.
153. See Jennifer S. Hunt & Thomas Lee Budesheim, How Jurors Use and Misuse Character Evidence, 89 J. Applied Psychol. 347, 358 (2004).
154. Dae Ho Lee et al., The Effects of Judicial Admonitions on Hearsay Evidence, 28 Int'l J. L. and Psychiatry 589, 598-99 (2005).
155. See Adler, supra note 68, at 119-20.
156. Id. at 119.
157. E.g., Diamond, supra note 21, at 10.
158. Claire E. Weinstein & Vicki L. Underwood, Learning Strategies: The How of Learning, in 1 Thinking and Learning Skills 241, 243 (Judith W. Segal et al. eds. 1985).
159. E.g., Diamond, supra note 21, at 10.
160. See Weinstein & Underwood, supra note 138, at 243. Educational psychologists have long relied on interactive and participatory tasks to increase understanding and comprehension.
161. See, e.g., Ellen R. Hart & Deborah L. Speece, Reciprocal Teaching Goes to College: Effects for Postsecondary Students at Risk for Academic Failure, 90 J. Educ. Psychol. 670, 670-72 (1998).
162. E.g., Natasha K. Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model?, 45 UCLA L. REV. 845, 861 (1998).
163. Diamond, supra note 21, at 47-48.
164. Id. at 45; see also Hannaford, supra note 35, at 368-69.
165. Diamond, supra note 21, at 45.
166. Id.
167. Id.
168. Id. at 46.
169. Id.
170. Id. (brackets in original).
171. Id.
172. Id. at 12.
173. See discussion supra Part III.
174. See, e.g., Nickerson, supra note 81. A finding that the juror is biased relies on the juror's application of that bias to the presented evidence, and therefore confirmation bias is a tell-tale sign that the decision-maker, in this case the juror, is actively engaging with information as it is presented, even if the juror is unaware of the activity.
175. See, e.g., Pennington and Hastie, supra note 95, at 202-03.
176. See discussion supra Part III. B.1.
177. For example, the Federal Rules of Evidence prohibit the introduction of certain types of hearsay and character evidence, as well as most evidence of liability insurance, offers to settle, or plea discussions. FED. R. Evid. 802, 404, 411, 408, 410.
178. See, e.g., Vasquez v. Rocco, 836 A.2d 1158, 1163-67 (Conn. 2003) (discussing the admission of defendant's liability insurance at trial);
179. Unmack v. Deaconess Med. Ctr., 967 P.2d 783, 785-86 (Mont. 1998) (holding that admission of character evidence was not harmless error).
180. Dannye R. Holley, Judicial Anarchy: The Admission of Convictions to Impeach: State Supreme Courts' Interpretive Standards, 1990-2004, 2007 MICH. ST. L. REV. 307, 341-42;
181. Peter J. Smith, New Legal Fictions, 95 GEO. L. J. 1435, 1451-52 (2007).
182. For an example of such a limiting instruction, see ILL. Pattern Jury Instructions: Civil § 2.02 (2006). Proper limiting instructions are often held by reviewing courts to be sufficiently curative for otherwise reversible errors. See, e.g.. State v. Lemay, 938 A.2d 611, 617 (Conn. App. Ct. 2008) ;
183. Reay v. State, 176 P.3d 647, 653 (Wyo. 2008). In fact, some courts have held that no error exists where the defendant could have asked for a limiting instruction.
184. See, e.g. State v. Giddens, 922 A.2d 650, 656 (N. H. 2007) ("We presume that, had the defendant requested a limiting instruction, and had the trial court given it, the jury would have followed it.").
185. See Joel D. Lieberman and Jamie Arndt, Understanding the Limits of Limiting Instructions: Social Psychological Explanations for the Failures of Instructions to Disregard Pretrial Publicity and Other Inadmissible Evidence, 6 PSYCHOL. PUB. POL'Y and L. 677, 689-91 (2000).
186. S. Sue et al., Effects of Inadmissible Evidence on the Decisions of Simulated Jurors: A Moral Dilemma, 3 J. APPLIED Soc. PSYCHOL. 345, 346-48 (1973).
187. Id. at 348-50.
188. Id. at 350.
189. Id.
190. See, e.g., Saul M. Kassin and Samuel R. Sommers, Inadmissible Testimony, Instructions to Disregard, and the Jury: Substantive Versus Procedural Considerations, 23 PERSONALITY and SOC. PSYCHOL. Bull. 1046, 1047 (1997).
191. Lieberman and Arndt, supra note 160, at 693-94.
192. Id. at 692-93.
193. Kamala London and Narina Nunez, The Effect of Jury Deliberations on Jurors' Propensity to Disregard Inadmissible Evidence, 85 J. APPLIED PSYCHOL. 932, 937 (2000).
194. Id. at 934 tbl.1.
195. Id.
196. Id.
197. Id. at 937.
198. Id.
199. Id.
200. Id. at 934 tbl.1.
201. As discussed above, the argument that jurors can better monitor themselves and one another when they are permitted to discuss the evidence is also often used to respond to claims that predeliberation discussions may encourage the formation of premature judgment.
202. See, e.g., Jurors: The Power of Twelve, supra note 52.
203. De Tocqueville, supra note 1, at 225.
204. See Winebrenner v. United States, 147 F.2d 322, 327-28 (8th Cir. 1945).
205. E.g., id.
206. See supra Part III. A.3.
207. ForsterLee & Horowitz, supra note 116, at 317.
208. Id. at 310.
209. Legal and cognitive psychologists have proposed and empirically tested several other methods for maximizing the efficacy of jury instructions that might be incorporated into the court's preinstructions to jurors.For example, several experiments have demonstrated that jurors are better able to apply limiting instructions and rules when such directions are explained. See Shari Seidman Diamond and Jonathan D. Casper, Blindfolding the Jury to Verdict Consequences: Damages, Experts, and the CivilJury, 26 Law and Soc'Y Rev. 513, 545 (1992) ;
210. Duane T. Wegener et al., Flexible Corrections of Juror Judgments: Implications for Jury Instructions, PSYCHOL. PUB. POL'Y and L. 629, 646 (2000) ;
211. Roselle L. Wissler et al., The Impact of Jury Instructions on the Fusion of Liability and Compensatory Damages, 25 Law and HUM. Behav. 125, 134-35 (2001). Therefore, pre-instructions to juries might be more effective if the court explains not only the law, but also, for example, the reasons that jurors should only discuss the case when all jurors are present (e.g., so that everyone can learn from the discussions).
212. Hannaford, supra note 69, at 637.
213. E.g., Pennington & Hastie, supra note 95, at 202-03.
214. See supra Part III. A.
215. See Weinstein and Underwood, supra note 138, at 243.
216. See, e.g., Patricia Lee Refo, A Roadmap for Trials: The Ethical Treatment of Jurors, 36 Stetson L. Rev. 821, 828-29 (2007). It is generally assumed, and has been demonstrated, that jurors would prefer to be allowed to discuss the case.
217. See Hannaford, supra note 35, at 376. Moreover, the jurors' desire to discuss the case may be manifesting in other, less desirable, ways when jurors are not permitted to discuss, such as in discussions about the case with friends and family not related to the case. This suggestion is supported by the fact that jurors who are permitted to discuss report fewer such outside discussions than those who were forbidden from discussing the case with one another. Id.
218. See, e.g., Lakamp, supra note 141, at 861.