Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
As the coronavirus pandemic drags on and intensifies, courts around the country are moving toward reopening in fits and starts, with distancing, temperature checks, masks, and hand sanitizer. Some courts are also exploring distanced alternatives, including in some cases trial by Zoom, or by other web-conferencing tools that allow jurors to stay home. Including jury deliberations is “the final yard” in this transition, with some courts using the technology only for jury selection, while others are exploring deliberations as part of demonstrations or actual online trials.
If courts continue to move in this direction, what differences can we expect in deliberations? Will the medium of communication — in person or online — lead to differences in who participates? Discussions of online jury representativeness have focused on access to technology and to internet connections, and how they can be addressed (for example, by providing technology access in private rooms of courthouses or libraries). But what if the medium itself also causes differences in access? A large scale research project comparing in-person to online deliberations (Showers, Tindall, & Davies, 2015) was conducted five years ago, but now has new relevance. A team of Stanford researchers looked for demographic differences in comparing quality of participation across the deliberation styles, and while they found no significant differences based on gender, age or education, they did see a difference based on race. Online deliberation led to reduced black participation and increased white participation. In this post, I’ll take a look at the research and its implications.
The Research: Different Participation Patterns Depending on the Medium
The research team had access to a large dataset of transcripts. While the discussions were not part of legal cases (a reason that legal online deliberations will need to be researched as they’re rolled out), they did involve representative groups of citizens talking about factual issues relevant to the public. The dataset came from the Healthcare Research and Quality’s Community Forum Project, and included groups in Chicago, Sacramento, as well as more mid-sized towns in Maryland and North Carolina (Silver Spring and Durham). In total, 1,774 citizens participated in these deliberations.
The research team looked at the transcripts and quantitatively measured communication characteristics like frequency and amount of speech. Overall, they found that age and education correlates with greater deliberation participation, and that ends up being the same regardless of whether the deliberation is in-person or online. Looking at race, however, they did find differences in the volume and frequency of deliberation participation: “Online deliberation appears to reduce black and increase white participation, relative to face-to-face, even when controlling for age and education level.”
The Implications: Consider the Setting
In the legal world, there is a fair amount of skepticism toward the idea of online trials, particularly jury deliberation. Some of these skeptics may seize on results like this to argue, “See, online deliberations are not just difficult, they’re also racist.” But there are a few things to consider before jumping to that conclusion.
No Perfect Setting
There is a tendency to think that in-person is “normal,” while other forms of communication, including online forms, are a deviation. But in reality, forms of communication are simply different, and each is going to have advantages and disadvantages. For example, as referenced in the article, a large volume of research has shown that men generally speak more often and speak longer during in-person deliberation settings, but that disadvantage for women was not observed online. Similarly, older people are observed to have shorter contributions in person, but that difference is also not observed in online deliberations.
A Need to Consider Inclusiveness
Still, racial differences in participation levels in online versus in-person deliberations need to be assessed. Society is waking up to the idea lately that a tolerance for disparity helps no one. We would not want to uncritically move to a deliberation mode that magnifies racial inequality. As demonstration projects and real trials move into the online space, additional research should look at whether this is a reliable difference or not, and should also assess whether any changes to the format might mitigate these differences.
A Need to Account for Participation Inequality in Research and in Jury Watching
In the meantime, the reality is that those running online jury research projects and advising on online trials may need to adapt to the fact that leadership could matter more in an online setting. If some individuals are less comfortable and less familiar with discussion in an online setting, they may participate less, and the influence of leaders on that jury will become greater. So pay attention to who your leaders are likely to be. The researchers also note that participation inequality tends to increase as groups get larger, so that may be a reason to keep research juries (and maybe real juries) smaller.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now.
Other Posts on Deliberations:
- Account for Recency in Jury Deliberations
- Know that the Law Does Matter in Deliberations (But Not Necessarily Your Version of the Law)
- Online Trials: Expect Both Challenges and Opportunities
Showers, E., Tindall, N., & Davies, T. (2015, August). Equality of participation online versus face to face: condensed analysis of the community forum deliberative methods demonstration. In International Conference on Electronic Participation (pp. 53-67). Springer, Cham.
Image credit: 123rf.com, used under license, edited by author