In courtrooms across the United States – both state and federal – juries are told to go into jury deliberations room and reach a verdict. The jury enters the deliberation room and re-appears some time later with a verdict on the charges. The procedure employed to reach that verdict, however, varies from jury to jury, even in the same courthouse. Some juries do verbal votes, some raise hands, some write down their votes, and some probably use silence as a way to tabulate the jury votes. I call this “open voting.” Most jury deliberations probably start with “straw polls” – such as, “who believes he is not guilty.”
Jury studies show that open voting procedures prevent hung juries, which, in turn, saves judicial and prosecutorial resources. Dissenting individual jurors subject to open voting procedures may acquiesce and vote with their peers despite misgivings for many reasons: because they want to be liked; they want to go home; they are tired of debating other jurors and being brow-beaten by the majority; they may not want to engage in any debate at all for fear of confrontation; they may be intimidated by outspoken advocates of the opposite position; they don’t want to disappoint the judge, especially after receiving a jury deadlock instruction, or “Allen charge;” or, they don’t want to openly support an unpopular position, especially without knowledge of whether they have any allies in the room.
A 2009 study published by Cornell Law School found that 38 percent of juries contained at least one jury who disagreed with the general outcome of the criminal case but voted for it anyway – conviction or acquittal. Waters and Hans, “A Jury of One: Opinion Formation, Conformity, and Dissent on Juries,” Cornell Law Faculty Publications, Paper 114 at 522-23 (2009). That number skyrocketed in cases with multiple charges – 54% of juries contained at least one juror who disagreed with the jury’s verdict on at least one charge. Id. That is, more than half of the juries had at least one juror who voted insincerely. According to the study of 4000 jurors across four states, only 82 of 351 dissenting jurors ultimately hung their juries, and the average number of dissenters to hang a jury was just over three, indicating that the larger the minority was in the jury room, the less likely there was to be acquiescence and conformity with the majority. Id.
ENTER THE COURT-MARTIAL VOTING INSTRUCTION
In Article 51 of the Uniform Code of Military Justice (UCMJ), codified at 10 U.S.C. § 851, the United States Congress mandated that military juries (also called “members”) vote by secret, written ballot during deliberations. Article 51 provides:
Voting by members of a general or special court-martial on the findings and on the sentence, and by members of a court-martial without a military judge upon questions of challenge, shall be by secret written ballot. The junior member of the court shall count the votes. The count shall be checked by the president, who shall forthwith announce the results of the ballot to the members of the court.
Military law has emphasized voting by secret, written ballot during both the guilt and innocence phase and the sentencing phase of its criminal trials since at least 1950, when the UCMJ replaced the Articles of War. In courts-martial, members, similar to a capital case under Florida law, determine the appropriate sentence following the presentation of evidence in aggravation by the prosecution and evidence in extenuation and mitigation by the defense and arguments on sentencing by counsel. See Rule for Courts-Martial 1001. The military judge provides specific instructions to the jury on how to conduct voting in accordance with Article 51.
After you have completed your discussion, then voting on each specification must be accomplished separately by secret, written ballot, and all of the members are required to vote. The junior member will collect and count the ballots. The count will be checked by the President, who will immediately announce the results of the ballot to the other members of the court. If at least 2/3 of the members cast a guilty vote, then accused has been found guilty of that vote. If less than 2/3 of the members found the accused not guilty, then he has been found not guilty.
Military appellate courts have recognized that voting by secret written ballot is a “proven preservative of the independence of military members as fact-finders and sentencing bodies. Secrecy insulates military members from pressures . . ..” United States v. Chaplin, 8 M.J. 621, 627 (NCMR 1979). Secret written ballots permit a juror “to vote his conscience, even if he agreed to a contrary position during the oral deliberative process.” United States v. Martinez, 17 M.J. 916, 919 (NMCCMR 1984). While the secret ballot procedure employed in courts-martial “was devised to protect military juries from the pressure of officers senior to them in rank . . ., a concern without direct parallel in civilian life, our common experience suggests that peer pressure, especially inflicted by a group, is a frequent and universal phenomena.” Holland at 142.
In fact, one of the factors that increased the reliability of verdicts in the Cornell study was whether the jury did, without any instruction from the judge, employ a secret written ballot voting scheme. In contrast to open voting, a secret written ballot “increases the likelihood that, having listened to the viewpoint of all members of the jury, each juror will finally vote based on her own conscientious evaluation of the merits, and not simply respond to pressure to go along with others.” A secret written ballot ensures each juror that the “final expression of position that decides the verdict is a private expression of the conscience of each juror, made without risk of ridicule or pressure from other jurors, and this confidentiality reduces the likelihood that any juror will be stampeded by pressure from others on the jury.”
I personally believe the court-martial voting system is the most fair system under the law and have unsuccessfully urged other courts to adopt the voting process.