Do deliberative democrats make good jurors? Sonia Bussu reflects on her experience as a foreperson in a jury trial.

Popular juries offer a fascinating insight into how people deliberate. Although jurors sit in a public courtroom and their names are a public record, deliberation among jurors is private. The vast majority of research on jury communication relies on mock juries, post-verdict interviews with jurors or self-published accounts by jurors, which inevitably tend to be highly variable.

When I was summoned for jury service, I finally had an opportunity to directly experience jury deliberations. As a scholar of deliberative democracy with some experience of facilitating deliberative minipublics, I have an appreciation of how a mixed group of individuals interact when they are given the time to reflect on information and engage in deliberation. I witnessed how participants in a minipublic offer arguments and counterarguments based on their different understanding of the same evidence, how participants draw on different values and knowledge they bring into the deliberation. I was curious to see how my professional experience might influence my behaviour as a juror. Would my assumptions about deliberation be confirmed or challenged in the jury room?

Would my assumptions about deliberation be confirmed or challenged in the jury room?

I was also interested in observing group dynamics in a context where pressure to reach a decision is different from minipublics. As jurors, we were tasked with reaching a consensus on a decision that has life-changing impact not only on the defendants, but also the victims and their families. I wondered how I would behave in an environment where I was neither the expert nor the independent facilitator. In fact, I wondered how group deliberations would work without the help of an external facilitator, who, in my professional experience, plays a vital role in deliberative minipublics. I also wondered what kind of deliberations would unfold behind closed doors, without the scrutiny of the public.

12 Angry Men or 12 Conscientious Citizens? Being a Juror is No Easy Feat

When I received the letter from the Jury Central Summoning Bureau, I was surprised and excited. Based on conversations with friends who had been summoned previously and fellow jurors, I realised that many approached jury service as something they have to do and, in many cases, would happily get out of. The figures for excusals from jury duty in the UK are relatively high: of the 361,300 summons in 2015, 27% were excused, and those who try to avoid it tend to be from the professional classes, who, because of having more resources, are more apt at navigating the system.

I had been warned about the long wait before being assigned to a trial and during the trial itself. Not everyone initially selected will end up acting as a juror. Some told me about their frustration at deliberating with people who had already made up their mind about a case before the deliberation had even started—at times based on their assumptions rather than the evidence presented in court. Studies on jury deliberation have highlighted how the ideal of full consideration of evidence, as well as other jurors’ positions with an open mind, may occur in only 35% of cases. In Sidney Lumet’s 1957 film 12 Angry Men, one dissenting juror is able to persuade the other eleven through logic and rational argumentation that the case is not as clear as appears at first. The reality is that only one in 10 cases results in a reversal of the initial majority’s verdict preferences, with female jurors more open to persuasion and to changing their vote than male jurors.

And yet, a quick scan of the literature reveals that juries are both efficient and effective: less than 1% of sworn juries is discharged and they generally reach a verdict, with hung juries occurring in only 0.6% of charges. Large-scale analyses consistently demonstrate the fairness of randomly selected juries. Juries convict on almost two-thirds of all charges presented to them, but, contrary to popular belief, there are no significant differences in jury verdicts for white, black or Asian defendants. Therefore, one stage in the criminal justice system where black, Asian and minority ethnic groups do not face persistent discrimination is before the jury.

After waiting a whole day to be assigned to a trial, I was finally selected.

The Trial

My trial was complex: it involved two defendants with two serious charges in each case. The twelve jurors were very diverse in terms of gender, ethnicity, age, cultural and educational background and political convictions, with different understanding and interpretations of the role of juries and even concepts of justice.

The trial lasted over three days before we were locked inside the deliberation room on the fourth day. One aspect that surprised me, based on my experience of minipublics and participatory processes, was the limited guidance offered to jurors besides the judge’s notes, which summarise the main evidence from the prosecutor and the defence and provide a reminder to jurors of their responsibility to decide whether the evidence of guilt is beyond reasonable doubt. The latter is a highly contested concept, but there is limited explanation provided to jurors on how they can interpret it.

One aspect that surprised me, based on my experience of running minipublics and participatory processes, was the limited guidance offered to jurors besides the judge’s notes.

Jurors can ask questions to the defence and the prosecution during the trial and while in the deliberation room, but answers hardly helped us to make sense of the events, as the discussion was strictly limited to the evidence presented in court irrespective of obvious gaps. We could ask to see a picture or a video again, or be reminded of what a witness or the defendant said regarding a particular point, but we could not ask for clarifications over seeming contradictions in the accounts provided by either side—that would be the job of the defence and the prosecution!

During the trial, I foresaw that deliberation over such a complex case requiring meticulous reconstruction of events might prove quite challenging.

What Does a Deliberative Democrat Do in the Jury Room?

As I entered the deliberation room, I wondered how I could make the most of my professional experience without imposing it onto others. We received no guidance on how to deliberate. I imagine this could be daunting for people who have never found themselves in a similar situation.

I was not planning to put myself forward as a foreperson; my intention was to focus on my role as a juror and observe the dynamics of group communication. However, I made what to me was a minor intervention, I suggested we should not have an early vote, which is quite common in jury deliberation, and instead start by reviewing the evidence we had just heard. My rationale was that an evidence-driven style was more likely to be deliberative than a verdict-driven style and might promote a more thorough and inclusive discussion of the case.

By virtue of making that suggestion, I was immediately asked to act as the foreperson; clearly this was not a sought-after role in the room. I proposed to share it with another juror who would co-facilitate. This was possibly an unorthodox choice for a jury but I know from my professional experience that co-facilitation often works best.

We spent half a day reviewing the evidence based on our own notes and the judge’s directions. This part of the facilitation process was no different from my previous experience and I felt totally at ease. We tried to reconstruct the crime scene, progressing chronologically and basing all our exchanges on logical arguments. There was laughter. We exchanged jokes about the poor quality of food provided, but everyone was serious about what we were doing.

During the preliminary discussion, we raised more questions than we answered. It was clear from those initial exchanges that there was a degree of confusion about the chronology of events and the judge’s directions. This reflects much of the existing literature, which has found that over half of the jurors perceive the judge’s directions as easy to understand and yet only a minority (31%) actually understand them fully. Most of these jurors (67%) also feel they should be given more information about how to conduct deliberations.

All the rational arguments and counterarguments, all the evidence examined through clear, logical steps led us to opposite conclusions. The following couple of hours proved difficult.

Once we all felt that we were as clear as we could be about the evidence, we had our first vote to sense-check the mood in the room: six for guilty and six for not guilty. Deadlocked. All the rational arguments and counterarguments, all the evidence examined through clear, logical steps led us to opposite conclusions. The following couple of hours proved difficult.

The literature finds that politically and ideologically diverse juries like mine enrich the deliberation, as jurors are more likely to scrutinise the judge’s instructions and consider different interpretations of the law. Within our jury, however, this diversity also engendered new complexity in the interpretation of the case.

Until the first vote, all jurors had demonstrated their deliberative stance, which is a ‘relation to others as equals engaged in the mutual exchange of reasons oriented as if to reaching a shared practical judgment,’ as defined by David Owen and Graham Smith. At that point, there was no mention of our professions and backgrounds; we were just 12 jurors.

The first vote was a watershed moment. Passions started running high. Within minipublics, independent facilitators can often identify moments when emotional expression can be used constructively to help the group deepen their discussion and work towards specific tasks. I was playing this role as the foreperson, but, after revealing my position and opinions, I was no longer perceived as neutral. Facilitating this heated discussion to ensure mutual respect became difficult

While facilitators’ neutrality has been the subject of scrutiny in the past few years, the field of deliberative practice nevertheless recognises that the facilitator’s legitimacy is derived from having no interest in the outcome of the deliberation and by providing no personal opinions. I lacked the legitimacy to perform that role. I was a juror with strong opinions on the matter, and that was clear to my fellow jurors.

When Emotions Run High

Deliberative democrats have long acknowledged the role of passions in deliberation. After all, public deliberation is sparked by citizens who feel strongly or care about causes or issues. My fellow jurors genuinely cared about reaching a fair verdict and felt strongly about the case. However, at times they expressed their ideas and emotions in ways that were difficult to acknowledge for others in the room.

While recognising that the role of emotions can democratise deliberation, people also have different degrees of emotional capital. Not everyone has the same capacity to conduct ‘emotion work’ or management of one’s feelings suitable to a context. Some jurors struggled more than others with perceived rejection of their views; others found it difficult to contain or recover from outbursts. These emotional reactions often offended listeners, who either withdrew or dismissed the speaker, irrespective of the rational value of the arguments.

I was aware of the need for everyone to feel heard. I intervened more often than I would normally have, with the intention of calming the minds, so to speak. I ended up irritating a few, including my co-facilitator.

We finally broke out for the weekend. The mood was sombre. I found it hard to switch off and kept thinking back to the emotional exchanges and what I had said and done that might have affected the discussion. I thought about what I could do to help the jury move forward. As my fellow jurors knew that I felt strongly about the verdict, I considered whether I should suggest someone from the ‘opposite side’ to take over the foreperson role. I rewatched 12 Angry Men and fantasised about my jury getting out of deadlock.

Some jurors struggled more than others with perceived rejection of their views. Others found it difficult to contain or recover from outbursts.

The jury reconvened on Monday morning. Some jurors admitted they could not sleep. Some had done some research on the legalese of the charges. Others had rewatched 12 Angry Men too. (It might not be a realistic depiction of what happens in a jury room, but it is a great film!) Everyone genuinely cared.

Beyond Reasonable Doubt

During this second day of deliberation, group dynamics shifted slightly. Over the weekend, one of the jurors went through a radical change of mind. I felt that this also freed other people to do the same. I suggested someone else would facilitate the discussion, but they were not receptive to my idea. I asked whether it would be okay for us to take a step back and reflect on what ‘beyond reasonable doubt’ meant to each of us. They agreed and were perhaps relieved to postpone more heated exchanges.

I realised our different understanding of ‘beyond reasonable doubt’ accounted for some of our differences of opinion. Unpacking this concept encouraged us to examine our collective task. We remembered that we were not there to determine whether the defendants were guilty or innocent, but whether the evidence we had heard proved guilt beyond reasonable doubt. It had been surprisingly easy to forget that in the heat of the discussion.

Bearing this in mind, we reviewed the evidence once more. We never reached a unanimous verdict, but the judge finally accepted a majority of 10-2.

As a jury, we felt confident we had reached a fair verdict, but I questioned my attempt to facilitate.

What Can a Deliberative Democrat Learn From Jury Service?

My experience as a juror was intense—at times rewarding, at times frustrating. I often wonder what might have happened had I taken a back seat rather than facilitate. There is certainly a discussion to be had elsewhere on whether jury trial might benefit from an independent facilitator and whether more could be done to provide guidance to jurors on how to deliberate together and navigate the trial. I did ask myself whether my knowledge of deliberation and experience as a facilitator was actually beneficial to the jury or not.

Was there a conflict between my deliberative mindset and my role as a lay citizen and a juror with strong convictions? Was the facilitation approach used in minipublics and participatory processes helpful within an environment where the pressure is much higher and the impact of people’s decisions much more visible? After all, the foreperson is not meant to act as a facilitator in the way we understand this role in deliberative minipublics. Was my suggestion not to start with an early vote helpful in that context? Did it complicate things for my fellow jurors, in the absence of an independent facilitator? Would we have reached a different verdict had we had an early vote?

As a deliberative democrat, I witnessed how the jury process continues to be a great example of the benefits of institutionalising citizen participation. The collective nature of the jury, where a mix of individuals ensure a counterbalance of different views, is certainly a good antidote to individual pride, prejudices and assumptions. However, the jury room, like minipublics, also reproduces the hierarchies of society at large. Beyond differences in class, gender, eloquence and educational backgrounds, differences on how we manage and use our emotions in a group setting also reflect and exacerbate inequalities. I had never really thought about the weight of emotion work on deliberation, perhaps because minipublics are a more sanitised environment and a good independent facilitator can use emotions to strengthen (and steer) deliberation. The literature should pay more attention to concepts of emotional capital and emotion work in inclusive and equitable deliberation.

I would have loved to ask my fellow jurors about their experience of the deliberation room, but as we left the court, we were all exhausted. During the deliberation, I could sense people’s irritation when some of the jurors spoke out, not because of the weakness of their arguments but rather because of the strength of their emotions. Others struggled to manage their own emotional response to the situation. There was also a deep sense of collegiality after spending so many hours in a room together, and of achievement when we finally reached a verdict. Ultimately, like most things, good deliberation is also a learning process and a matter of practice, and we all need more opportunities to engage in it.

Editor’s note: An updated version of this article was published on Feb. 19, 2021

About the Author

Sonia Bussu is a public policy scholar. Her main research interests are participatory governance and participatory action research. Over the years, she has led research and published on participatory and deliberative processes, community engagement and coproduction of health services, with a focus on the role of facilitative leadership in participatory processes. After her PhD at the London School of Economics, she worked for the third sector, where she designed and evaluated innovative participatory processes and community development programmes, before returning to academia as a research associate at University College London. She currently works at Manchester Metropolitan University as senior lecturer in politics and public administration.