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A unique study of nonunanimous juries in Arizona � based on videotapes of 50 real civil jury trials and deliberations � found that some panels gave short shrift to dissenting jurors. The findings of the study, soon to be published, lends credence to critics who say nonunanimous juries suppress dissent and don’t test evidence as rigorously. Advocates of nonunanimous juries � which operate in the majority of states � say they provide a safeguard from obstinate or erratic jurors and cut down on the number of hung juries. But the study, scheduled to be published in January in the Northwestern Law Review, is already causing a stir. Arizona Civil Presiding Judge Charles Harrington said he’s disturbed by the findings. “We as a court have not considered that a majority � when it reached a consensus � would sometimes just dismiss dissenting views. It concerns me,” Harrington said. “It is something that has never been brought to our attention by advocates or jurors. This will cause us to take a another look at the cost and benefits of nonunanimity.” But plenty of attorneys still like nonunanimous juries. Arizona plaintiffs attorney and trial consultant David Wenner is an advocate of quorum juries. “It’s difficult enough to win a plaintiff’s case, and to put one more hurdle [unanimity] in the way of a plaintiff’s ability to recover raises the bar that much higher in an era where there’s clearly an anti-plaintiffs bias,” said Wenner of Phoenix’s Snyder & Wenner. The study estimates that nonunanimous juries prevent retrials in 0.5 percent of cases. It questions whether such small savings are worth the “loss in the quality of debate within the jury.” While a few juries pressed for unanimity in the study � even though the agreement of just six of eight jurors is needed to reach a verdict � many took votes before discussing the evidence, and cut off debate if they had the numbers to reach a verdict, according to the study. A few juries discouraged input on damages from jurors who had voted against liability. The tapes of trials of various types, lengths and complexities were made in Pima County, Ariz., from 1998 to 2001, to evaluate numerous innovations that the state had made to allow jurors to become more active participants in trials. Northwestern University law professor Shari Seidman Diamond, the principal author of the study, found that 16 of the 50 verdicts, or 32 percent, were by quorum. One jury hung. In a few of the 33 “unanimous juries,” former dissenters said at the last moment that they would side with the majority so that only the presiding juror would have to sign the verdict form. “It is clear that a thoughtful minority of jurors may be marginalized when majority jurors have the power to ignore them in reaching a verdict,” she said of the study’s conclusions. “Looking at the jury-deliberation process, there is every reason to expect jury awards to be more stable and predictable when juries deliberate under a unanimity requirement,” she added. The study found that: Judges would have sided with dissenting jurors in six of the 13 nonunanimous cases in which judges filled out questionnaires, which indicated how a judge would have decided a case if it had been a bench trial. There was no evidence that the dissenting jurors’ positions were either odd or extreme. Jurors were sometimes unclear � and received no instruction � on what role an outvoted dissenter on liability should play in damage discussions. There was no evidence that outvoted dissenters were more likely to favor a plaintiff than a defendant. Majority jurors and dissenting jurors on nonunanimous juries rated their deliberations as less thorough and their fellow jurors as less open-minded than did jurors on unanimous juries. The study finds that the agreement between judges and holdout jurors in such a substantial number of cases suggests that the conflicts on these juries poses the exact challenge that a “deliberative process should address.” The videotapes provide evidence that the jury occasionally reached premature closure when the majority appeared to have the requisite number of votes, even when some of the votes were tentative. Leonard Post is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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