Judicial Notebook

In 2002, Timothy Ring (Ring v. Arizona) appealed his death sentence to the U.S. Supreme Court, arguing that the judge in his trial rendered the death penalty verdict, a procedure that violated his Sixth Amendment right to a trial by a jury. The court agreed, ruling that Arizona's death penalty statute was unconstitutional because it allowed "a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty."

The ripples associated with Ring affected several states. Of the 38 states that allowed the death penalty in 2002, 29 were already in compliance with the Ring decision, with the final death penalty determination resting in the juries' hands. However, five states (including Arizona) had placed the sentencing decision in the judges' hands, and four states (including Florida) allowed the jury to recommend a sentence but left the final decision to the judge.

Relying on Ring, Linroy Bottoson and Amos King—two convicted murderers sentenced to death in Florida—appealed their sentences to the Florida Supreme Court, claiming that Florida's death penalty statute was unconstitutional. Although the Florida Supreme Court decided not to hear either case, several justices noted potential constitutional flaws in the way Florida administered the death penalty. First, Florida trial judges determine whether aggravating factors exist to make the defendant worthy of the death penalty. This contrasts with Ring, which places such fact-finding determinations in the jury's hands. Second, although Florida jurors provide recommendations for life or death, the judge renders the final verdict. Finally, Florida's death penalty statute does not require jurors to be unanimous in their sentencing recommendation (Fl. Stat. ß 921. 141). This last "flaw" is particularly interesting from a psychological perspective.

While less-than-unanimous verdicts are common in U.S. civil trials, most states require juror unanimity in criminal cases (except for Oregon and Louisiana), and all states require unanimity in the guilt phase of capital trials. Yet Florida is unique in that it lets a majority of the jury panel recommend the death penalty during the penalty phase of capital cases, rather than requiring that the panel reach a unanimous decision. The uniqueness of Florida's non-unanimity law may not last, however, as other states (most notably Georgia) have attempted to introduce legislation that permits similar non-unanimous death penalty verdicts.

Although little research focuses on non-unanimous-decision rules in death-penalty cases, the psychological literature shows the negative impact that non-unanimity can have on verdicts in non-death cases. Research by psychologists James Davis, Norbert Kerr and Charlan Nemeth found that non-unanimity juries take less time rendering their final verdicts. Deliberations involving non-unanimous juries also tend to be more verdict-driven (in which jurors tend to form opposing jury factions based on verdict preferences) rather than evidence-driven (in which deliberations focus more on the evidence). In addition, non-unanimity juries take fewer juror polls during deliberation, and they are more prone to convict when the majority initially favors conviction (and they are less prone to convict when the majority initially favors acquittal).

Yet requiring unanimity also has drawbacks. The legal system, after all, is overwhelmed with cases, and requiring unanimity can increase deliberation time. Further, research by Davis suggests that the unanimous decision-rule increases the probability of a hung jury, thus failing to provide a resolution regarding guilt and forcing prosecutors either to retry the case or abandon it altogether. Fortunately, empirical research indicates that jurors required to reach unanimous decisions feel more positive about the legal process, feel greater satisfaction about their jury experience, feel more confident that they made a correct verdict decision, and are more convinced that they served justice.

Despite the extra time and resources that may be spent by requiring juries to render unanimous decisions, death is different, and fundamental concerns of fairness require that death penalty defendants receive a fair trial. It is in the best interest of all parties to help the jury engage in thoughtful deliberation and feel confident that they made the correct decision. A majority-decision rule may simply not be enough to achieve this end, especially when life and death are on the line.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).