About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

18 Jury Expert 9 (2006)
Secret Ballot or a Show of Hands: Gain the Advantage with Your Preferred Voting Method

handle is hein.journals/jurexp18 and id is 69 raw text is: Secret Ballot or a Show of Hands? Gain the Advantage With Your Preferred Voting Method By Edward P. Schwartz, Ph.D., M.S.L. When going to trial, a litigator always asks herself the same question: How will the jury vote? This is a great question, but maybe not for the reason you think. I encourage my clients to think about the method, as well as the outcome of jury voting. This is important because the method jurors use to cast their votes can have a profound effect on the outcome of the case. For example, if the jury votes by a show of hands, a juror may be reluctant to vote her conscience if she is worried that her choice will be unpopular with her fellow jurors. It is therefore important for lawyers to understand: the various methods juries use to reach their decisions, how each method might favor one side or the other, and how lawyers can subtly influence the jury's voting method without running afoul of the court. Get in the Game Game theory is the study of strategic interaction. The focus is on how people choose strategies in anticipation of the strategies chosen by others. For instance, A secret ballot m a soccer player taking that thosefavori a penalty kick wants actua to kick the ball in the opposite direction from where the goalie is diving. The goalie, on the other hand, wants to dive the same way the ball is being kicked. Should the goalie dive left or right? Well, that depends on what he thinks the kicker is going to do. The application of game theory to voting situations is called social choice theory Most voting institutions-traditional elections, the Supreme Court, and Senate votes to close debate-have well-defined voting rules. It is interesting then that the jury, comprised of ordinary citizens with little or no voting experience (other than in elections), is asked to reach verdicts without any guidance about how to structure their votes. A casual observer might think that the voting method would not matter very much. A social choice theorist, however, understands that procedure can have a profound impact on outcomes. A litigator would be wise to appreciate this connection and try to influence the jury's voting method accordingly. Common Voting Methods Jury voting methods run the gamut from the traditional secret ballot to the simultaneous show of hands. Each comes with its own strategic dynamic and lawyers can gain an edge for their clients if they can somehow convince the jury to use a method that maximizes the strengths of their case. Of course, a lawyer's direct attempt to tell a jury how to deliberate and vote would likely meet great hostility from the judge, not to mention opposing counsel. That said, there are subtle strategic ways an attorney can couch her arguments that might nudge a jury towards deliberating in one way or another. Secret Ballot Not all votes are created equal. If a jury uses a secret ballot, jurors will all feel fairly comfortable voting sincerely. As such, if your client :imizes the chance has an unsympathetic, gyour client will but principled case, a secret ballot might be e that way. your best option. It maximizes the chance that those favoring your client will actually vote that way. Studies have shown that people become committed to a position when they have publicly espoused it. As such, when a juror votes for a particular verdict, it is harder to get her to /x ng t 4

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most