The Mind of the Juryman

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THE MIND OF THE JURYMAN

WITH A SIDE-LIGHT ON WOMEN AS JURORS

BY HUGO MÜNSTERBERG
Author of "American Traits," "Psychology and Life," etc.


EVERY lawyer knows some good stories about some wild juries he has known, which made him shiver and doubt whether a dozen laymen ever can see a legal point. But every newspaper reader, too, remembers an abundance of cases in which the decision of the jury startled him by its absurdity. Who does not recall sensational acquittals in which sympathy for the defendant or prejudice against the plaintiff carried away the feelings of the twelve good men and true? For them are the unwritten laws, for them the mingling of justice with race hatreds or with gallantry. And even in the heart of New York a judge recently said to a chauffeur who had killed a child and had been acquitted, "Now go and get drunk again; then this jury will allow you to run over as many children as you like."

Yet whatever the temperament of the jury and its legal insight, we may sharply separate its ideas of deserved punishment from that far more important aspect of its function, the weighing of evidence. The juries may be whimsical in their decisions, they may be lenient in their acquittals or over-rigid in their verdicts of guilty, but that is quite in keeping with the democratic spirit of the institution. The Teutonic nations do not want the abstract law of the scholarly judges; they want the pulse-beat of life throbbing in the court decisions, and what may seem a wilful ignoring of the law of the lawyers may be a heartfelt expression of the popular sentiment. Better to have some statutes riddled by illogical verdicts than legal decisions severed from the sense of justice which is living in the soul of the nation.

But while a rush into prejudice or a hasty overriding of law may draw attention to some exceptional verdicts, in the overwhelming mass of jury decisions nothing is aimed at but a real clearing up of the facts. The evidence is submitted, and while the lawyers may have wrangled as to what is evidence and what is not, and while they may have tried by their presentation of the witnesses on their own side and by their cross-examinations to throw light on some parts of the evidence and shadows on some others, the jurymen are simply to seek the truth when all the evidence has been submitted. And mostly they do not forget that they will live up to their duty best the more they suppress in their own hearts the question whether they like or dislike the truth that comes to light. Whoever weighs the social significance of the jury system ought not to be guided by the few stray cases in which the emotional response obscures the truth, but all praise and blame and every scrutiny of the institution ought to be confined essentially to the ability of the jurymen to live up to their chief responsibility, the sober finding of the true facts.

It cannot be denied that much criticism has been directed against the whole jury system in America and Europe by legal scholars, as well as by laymen, on account of the prevailing doubt whether the traditional form is really furthering the clearing-up of the hidden truth. Where the evidence is so perfectly clear that every one by himself alone feels from the start exactly like all the others, the co-operation of the twelve men cannot do any harm; but it cannot do any particular good, either. Such cases do not demand the special interest of the social reformer. His doubts and fears come up only when difference of opinion exists, and the discussion and the repeated votes overcome the divergence of opinion. The skeptics claim that the system as such may easily be instrumental for suppressing the truth and bringing the erroneous opinion to victory. In earlier times a frequent objection was that lack of higher education made men unfit to weigh correctly the facts in a complicated situation, but for a long while this kind of arguing has been given up. The famous French lawyer who, whenever he had a weak case, made use of his right to challenge jurymen by systematically excluding all persons of higher education, certainly blundered in this respect, according to the views of to-day. Those best informed within and without the legal science agree that the verdicts of straightforward people with public-school education are in the long run, neither better nor worse than those of men with college schooling or professional training. A jury of artisans and farmers understands and looks into a mass of neutral material as well as a jury of bankers and doctors, or at least their final verdict has an equal chance to hit the truth.

But the critics say that it is not the lack of general or logical training of the individual person which obstructs the path of justice. The trouble lies rather in the mutual influence of the twelve men. The more persons work together, the less, they say, every single man can reach his highest level. They become a mass, with mass consciousness, a kind of crowd in which each one becomes oversuggestible. Each one thinks less reliably, less intelligently, and less impartially than he would by himself alone. We know how men in a crowd do indeed lose some of the best features of their individuality. A crowd may be thrown into a panic, may rush into any foolish, violent action, may lynch and plunder, or a crowd may be stirred to a pitch of enthusiasm, may be roused to heroic deeds or to wonderful generosity; but whether the outcome be wretched or splendid, in any case it is the product of persons who have been entirely changed. In the midst of the panic or in the midst of the heroic enthusiasm, no one has kept his own characteristic mental features. The individual no longer judges for himself; he is carried away, his own heart reverberates, with the feelings of the whole crowd. The mass consciousness is not an adding-up, a mere summation, of the individual minds, but the creation of something entirely new. Such a crowd may be pushed into any roads; chance leaders may use or misuse its increased suggestibility for any ends. No one can foresee whether this heaping up of men will bring good or bad results. Certainly the individual level of the crowd will always be below the level of its best members. And is not a jury necessarily such a group with a mass consciousness of its own? Every individual member is melted into the total, has lost his independent power of judging, and has become influenced through his heightened suggestibility and social feeling by any chance pressure which may push toward error as often as toward truth.

But if such arguments are brought into play, it is evident that it is no longer a legal question, but a psychological one. The psychologist alone deals scientifically with the problem of mutual mental influence and with the reënforcing or awakening of mental energies by social coöperation. He should accordingly investigate the question with his own methods, and deal with it from the point of view of the scientist. This means he is not simply to form an opinion from general value impressions and to talk about it as about a question of politics, where any man may have his personal idea or fancy, but to discover the facts by definite experiments. The modern student of mental life is accustomed to the methods of the laboratory. He wants to see exact figures, by which the essential facts come into sharp relief. But let us understand clearly what such an experiment means. When the psychologist goes to work in his laboratory, his aim is to study those thoughts and emotions and feelings and deeds which move our social world. But his aim is not simply to imitate or to repeat the social scenes of the community. He must simplify them and bring them down to the most elementary situations, in which only the characteristic mental actions are left.

Is this not the way in which the experimenters proceed in every field? The physicist or the chemist does not study the great events as they occur in nature on a large scale and with bewildering complexity of conditions, but he brings down every special fact which interests him to a neat, miniature copy on his laboratory table. There he mixes a few chemical solutions in his retorts and his test-tubes, or produces the rays or sparks or currents with his subtle laboratory instruments, and he feels sure that whatever he finds there must hold true everywhere in the gigantic universe. If the waters move in a certain way in his little tank on his table, he knows that they must move according to the same laws in the midst of the ocean. In this spirit the psychologist arranges his experiments, too. He does not carry them on in the turmoil of social life, but prepares artificial situations in which the persons will show the laws of mental behavior. An experiment on memory or attention or imagination or feeling may bring out in a few minutes mental facts which the ordinary observer would discover only if he were to watch the behavior and life attitudes of the man for years. Everything depends upon the degree with which the characteristic mental states are brought into play under experimental conditions. The great advantage of the experimental method here is, as everywhere, that everything can be varied and changed at will and that the conditions and the effects can be exactly measured.

If we apply these principles to the question of the jury, the task is clear. We want to find out whether the coöperation, the discussion, and the repeated voting of a number of persons is helping or hindering them in the effort to judge correctly upon a complex situation. We must therefore artificially create a situation which brings into action the judgment, the discussion, and the vote; but if we are loyal to the idea of experimenting, we must keep the experiment free from all those features of a real jury deliberation that have nothing to do with the mental action itself. Moreover, it is evident that the situations to be judged must allow a definite knowledge as to the objective truth. The experimenter must know which verdict of his voters corresponds to the real facts. Secondly, the situation must be difficult, in order that a real doubt may prevail. If all the voters were on one side from the start, no discussion would be needed. Thirdly, it must be a rather complex situation, in order that the judgment may be influenced by a number of motives. Only in this case will it be possible for the discussion to point out factors which the other party may have overlooked, thus giving a chance for changes of mind. All these demands must be fulfilled if the experiment is really to picture the jury function. But it would be utterly superfluous, and would make the exact measurement impossible, if the material on which the judgment is to be based were of the same kind of which the evidence in the court-room is composed. The trial by jury in an actual criminal case may involve many picturesque and interesting details, but the mental act of judging is no different when the most trivial objects are chosen.

I settled on the following simple device. I used sheets of dark-gray cardboard. On each were pasted white paper dots of different form and in an irregular order. Each card had between ninety-two and a hundred and eight such white dots of different sizes. The task was to compare the number of spots on one card with the number of spots on another. Perhaps I held up a card with a hundred and four dots, and below it one with ninety-eight. Then the subjects of the experiment had to decide whether the upper card had more dots or fewer dots than the lower one. I made the first set of experiments with eighteen Harvard students. I took more than the twelve men who form a jury in order to reinforce the possible effect, but did not wish to exceed the number greatly, so that the character of the discussion might be similar to that in a jury. A much larger number would have made the discussion too formal or too unruly. The eighteen men sat about a long table, and were first allowed to look for half a minute at the two big cards, each forming his judgment independently. Then at a signal every one had to write down whether the number of dots on the upper card was larger, equal, or smaller. Immediately after that they had to indicate by a show of hands how many had voted for each of the three possibilities. After that an excited discussion began, three or four men speaking at the same time.

After five minutes of talking, the vote was repeated, again at first being written and then being taken by a show of hands. A second five-minute exchange of opinion followed, with a new effort to convince the dissenters. After this period the third and last vote was taken. This experiment was carried out with a variety of cards with smaller or larger difference of numbers, but always with a difference enough to allow an uncertainty of judgment. Here, indeed, we had repeated all the essential conditions of the jury vote and discussion, and the mental state was characteristically similar to that of the jurymen.

The very full accounts which the participants in the experiment wrote down the following day indicated clearly that we had a true imitation of the mental process despite the striking simplicity of our conditions. One man, for instance, described his inner experience as follows:


I think the experiment involves factors quite comparable to those that determine the verdict of a jury. The cards with their spots are the evidence pro and con which each juryman has before him to interpret. Each person's decision on the number is his interpretation of the situation. The arguments, too, seem quite comparable to the arguments of the jury. Both consist in pointing out factors of the situation that have been overlooked, and in showing how different interpretations may be possible.


Another man wrote:


In the experiment it seemed that one man judged by one criterion and another by another, such as distribution, size of spots, vacant spaces, or counting along one edge. Discussion often brought a man's attention to other criterions than those he used in his first judgment, and these often outweighed the original. Similarly, different jurymen would base their opinion on different aspects of the case, and discussion would tend to draw their attention to other aspects. The experiment also illustrated the relative weight given to the opinion of different fellow-jurymen. I found that the statements of a few of the older men who have had more extensive psychological experience weighed more with me than those of the others. Suggestion did not seem to be much of a factor. A man is rather on his mettle, and ready to defend his original impression until he finds that it is hopeless.


Again, another wrote:


To me the experiment seemed fairly comparable to the real situation. As in an actual trial, the full truth was not available, but certain evidence was presented to all for interpretation. As to the nature of the discussion itself, I think there was the same mingling of suggestion and real argument that is to be found in a jury discussion.


Another said:


The discussion influenced me by suggesting other methods of analysis. For instance, comparison of the amount of open space in two cards, comparison of the number of dots along the edges, estimation in diagonal lines, were methods mentioned in the discussion which I used in forming my own judgments. It does not seem to me that in my own case direct suggestion had an appreciable effect. I was aware of a tendency toward contrasuggestibility. There was a half-submerged feeling that it would be good sport to stick it out for the losing side. The lack of any unusual amount of suggestion and the presence of the influences of analysis and detailed comparison seem to me to show that the tests were in fact fairly comparable to situations in a jury-room.


To be sure, there were a few who were strongly impressed by the evident differences between the rich material of an actual trial and the meager content of our tests, there the actions of living men, here the space relations of little spots. But they evidently did not sufficiently realize that the forming of such number judgments was not at all a question of mere perception; that, on the contrary, many considerations were involved. Most men felt the similarity from the start.

What were the results of this first group of experiments? Our interest must evidently be centered on the question of how many judgments were correct at the first vote before any discussion and any show of hands were influencing the minds of the men, and how many were correct at the last vote, after the two periods of discussion and after taking cognizance of the two preceding votes. If I sum up all the results, the outcome is that fifty-two per cent. of the first votes were correct, and seventy-eight per cent. of the final votes were correct. The discussion of the successive votes had therefore led to an improvement of twenty-six per cent. of all votes. Or, as the correct votes were at first fifty-two per cent., their number is increased by one half. May we not say that this demonstration in exact figures proves that the confidence in the jury system is justified? And may it not be added that, in view of the wide-spread prejudices, the result is almost surprising? Here we had men of high intelligence who were completely able to take account of every possible aspect of the situation. They had time to do so, they had training to do so, and every foregoing experiment ought to have stimulated them to do so in the following ones. Yet their judgment was right in only fifty-two per cent. of the cases until they heard the opinions of the others and saw how they voted. The mere seeing of the vote, however, cannot have been decisive, because forty-eight per cent.,—that is, virtually half of the votes,—were at first incorrect. The wrong votes might have had as much suggestive influence on those who voted rightly as the right votes on those on the wrong side. Nevertheless, if the change was so strongly in the right direction, the result must clearly have come from the discussion.

But I am not at the end of my story. I also made exactly the same experiments with a class of advanced female university students. When I started, my aim was not to examine the differences of men and women, but only to have ampler material, and I confined my work to students in psychological classes because I was anxious to get the best possible scientific analysis of the inner experiences. I had no prejudice in favor of or against women as members of the jury, any more than my experiments were guided by a desire to defend or to attack the jury system. I was anxious only to clear up the facts. The women students had exactly the same opportunities for seeing the cards and the votes and for exchanging opinions. The discussions, while carried on for the same length of time, were on the whole less animated. There was less desire to convince and more restraint; but the record which was taken in shorthand showed nearly the same variety of arguments that the men had brought forward. Everything agreed exactly with the experiments of the men, and the only difference was in the results. The first vote of all experiments with the women showed a slightly smaller number of right judgments. The women had forty-five per cent. correct judgments, as against the fifty-two per cent. of the men. I should not put any emphasis on this difference. It may be said that the men had more training in scientific observations, and the task was therefore slightly easier for them than for most of the women. I should say that, all taken together, men and women showed an equal ability in immediate judgment, as with both groups about half of the first judgments were correct. The fact that with the men two per cent. more, with the women five per cent. less, than half were right would not mean much. But the situation is entirely different with the second figure. We saw that for the men the discussion secured an increase from fifty-two per cent. to seventy-eight per cent.; with the women the increase is not a single per cent. The first votes were forty-five per cent. right, and the last votes were forty-five per cent. right. In other words, they had not learned anything from discussion.

It would not be quite correct, if we were to draw from that the conclusion that the women did not change their minds at all. If we examine the number of cases in which in the course of the first, second, and third votes some change occurred, we find changes in forty per cent. of all judgments of the men and nineteen per cent. of all judgments of the women. This does not mean that a change in a particular case necessarily made the last vote different from the first; we not seldom had a case where for instance the first vote was larger, the second equal, and the third again larger. And, as a matter of course, where a change between the first and the last occurred, it was not always a change in the right direction. Moreover, it must not be forgotten that the votes always covered three possibilities, and not only two. It was therefore possible for the first vote to be wrong, and then for a change to occur to another wrong vote. The nineteen per cent. changes in the decisions of the women accordingly contained as many cases in which right was turned into wrong as in which wrong was turned into right, while with the men the changes to the right had an overweight of twenty-six per cent. The self-analysis of the women indicated clearly the reason for their mental stubbornness. They heard the arguments, but they were so fully under the autosuggestion of their first decision that they fancied that they had known all that before and that they had discounted the arguments of their opponents in the first vote. The cobbler has to stick to his last: the psychologist has to be satisfied with analyzing the mental processes, but it is not his concern to mingle in politics. He must leave it to others to decide whether it will really be a gain if the jury-box is filled with persons whose minds are unable to profit from discussion and who return to their first idea, however much is argued from the other side. It is evident that this tendency of the female mind must be advantageous for many social purposes. The woman remains loyal to her instinctive opinion. Hence we have no right to say that one type of mind is better than another. We may say only they differ, and that this difference makes men fit and women unfit for the task which society requires from jurymen.

In order to make quite sure that the discussion, and not the seeing of the vote, is responsible for the marked improvement in the case of men, I carried on some further experiments in which the voting alone was involved. To bring this mental process to strongest expression, I went far beyond the small circle which was needed for the informal exchange of opinion, and operated, instead, with my large class of psychological students in Harvard. I have there four hundred and sixty students, and accordingly had to use much larger cards with large dots. I showed to them any two cards twice. There was an interval of twenty seconds between the first and the second exposure, and each time they looked at the cards for three seconds. In one half of the experiments that interval was not filled at all, in the other half a quick show of hands was arranged, so that every one could see how many on the first impression judged the upper card as having more or an equal number or fewer dots than the lower. After the second exposure every one had to write down his final result. The pairs of cards which were exposed when the show of hands was made were the same as those which were shown without any one knowing how the other men judged. We calculated the results on the basis of four hundred reports. They showed that the total number of right judgments in the cases without showing hands was sixty per cent. correct, in those with show of hands about sixty-five per cent. A hundred and twenty men had turned from the right to the wrong; that is, had more incorrect judgments when they saw how the other men voted than when they were left to themselves. It is true that those who turned from worse to better by seeing the vote of the others were in a slight majority, bringing the total vote five per cent. upward; but this difference is so small that it could just as well be explained by the mere fact that this act of public voting reinforced the attention and improved a little the total vote through this stimulation of the social consciousness. It is not surprising that the mere seeing of the votes in such cases has so small an effect, incomparable with that of a real discussion in which new vistas are opened, inasmuch as in forty per cent. of the cases the majority was evidently on the wrong side from the start. Those who are swept away by the majority would, therefore, in forty per cent. of the cases be carried to the wrong side. I went still further, and examined by psychological methods the degree of suggestibility of those four hundred participants in the experiment, and the results showed that the fifty most suggestible men profited from the seeing of the vote of the majority no more than the fifty least suggestible ones. In both cases there was an increase of about five per cent. correct judgments. I also drew from this the conclusion that the show of hands was ineffective as a direct influence toward correctness, and that it had only the slight indirect value of forcing the men to concentrate their attention better on those cards. All results, therefore, point in the same direction: it is really the argument which brings a co-operating group nearer to the truth, and not the seeing how the other men vote. Hence the psychologist has every reason to be satisfied with the jury system.

This work was published before January 1, 1923, and is in the public domain worldwide because the author died at least 100 years ago.