Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

7. Protecting a Dissenting Voice

117 7 Protecting a Dissenting Voice A Single Voice In the Academy Award–nominated movie 12 Angry Men, a single juror convinces the other eleven to question their assumptions of guilt in what appears to be a simple case.1 The lone juror dissents to prolong a quick vote for guilt, and eventually creates enough questions to turn around the verdict. When questioned about his initial “not guilty” vote, Henry Fonda, playing the juror, states, “There were eleven votes for guilty. It’s not easy for me to raise my hand and send a boy off to die without talking about it first . . . [W]e’re talking about somebody’s life here. I mean, we can’t decide in five minutes. Supposing we’re wrong.”2 The movie remains canonical in the American perception of the jury.3 It provides one of the few thoughtful, if fictionalized, versions of jury deliberations ever filmed.4 It also connects to the very American ideal of the dissenting voice. 118 / Protecting a Dissenting Voice It might seem odd to talk about dissenting voices after an entire chapter on the importance of consensus-powered deliberations. Yet the tension between deliberation and dissent has always been part of the constitutional system . Respect for individual expression, both as a means to protect the autonomy of an individual, and as a mechanism to change the minds of others, is central to our system of democratic self-government. Similarly, an encouragement to hold unpopular or unconventional beliefs is central to the protections of the First Amendment’s Freedom of Conscience Clauses. If you study the jury instructions, you will see this interplay between group consensus and individual conscience . Examine, for example, the instruction on “unanimity ” given at the end of most criminal cases.5 Initially , the court will instruct all jurors in a criminal case that the verdict must be unanimous. The wording differs from court to court, but the core understanding is that all twelve members of the jury must agree—guilty or not guilty. Historically, all criminal juries required unanimous decisions.6 The tradition dates all the way back to the fourteenth century,7 and for most of our legal history state and federal courts required unanimity for criminal conviction.8 This changed in 1972, when the Supreme Court allowed states to experiment with less than unanimous verdicts.9 Currently, all federal courts and forty-eight of the fifty states require unanimous verdicts for felony cases (Louisiana and Oregon are the two outliers).10 If, however, during deliberations a jury has difficulty reaching a verdict, the tension between the group and the individual becomes heightened. In such a situation when a jury cannot reach a unanimous verdict and signals as much to a judge, an instruction similar to the following is read: Protecting a Dissenting Voice / 119 The verdict must represent the considered judgment of each juror. Your verdict, whether it be guilty or not guilty, must be unanimous. You should make every reasonable effort to reach a verdict. In doing so, you should consult with one another, express your own views, and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to re-examine your own views and change your opinion if you come to believe it is wrong. But you should not surrender your honest beliefs about the weight or effect of evidence solely because of the opinions of your fellow jurors or for the purpose of returning a unanimous verdict. The twelve of you should give fair and equal consideration to all the evidence and deliberate with the goal of reaching an agreement which is consistent with the individual judgment of each juror. You are impartial judges of the facts. Your sole interest is to determine whether the government has proved its case beyond a reasonable doubt.11 As is plain, while unanimity is the goal of deliberations , jurors are not expected to surrender their individual beliefs about the evidence for the sake of unanimity . The goal is a final unanimous verdict, but not at the expense of individual conscience. Eventually, if the jury cannot reach a unanimous verdict, the judge will declare a mistrial and send the jury home. The principle of freedom of conscience grows from a protected space in our constitutional system where the friction between national consensus and individual dissent can work itself out. It helped nurture unique...