Hung-jury rates vary, but remain low in state courts.

A recent study undertaken by the National Center for State Courts and National Institute of Justice examined hung-jury rates in 28 state and federal courts from 1996 to 1998. The overall average hung-jury rate for the jurisdictions was 6.2 percent.

For more information, please refer to Brian Ostrom, Neal B. Kauder, and Robert C. LaFountain, Examining the Work of State Courts, 2001 (Williamsburg, VA: National Center for State Courts, 2002), particularly Nicole L. Mott, Part 2, “The Role of Juries in State Courts,” at 101. See also Paula Hannaford-Agor, Valerie P. Hans, Nicole L. Mott, and G. Thomas Munsterman, Are Hung Juries a Problem? (Williamsburg, VA  National Center for State Courts, National Institute of Justice, 2002).

The primary argument provided by proponents of reducing jury size is one of cost and time savings. However, researchers have found that smaller juries do not perform as well and may be less diverse. See Nicole L. Mott, “Does Jury Size Matter” (August 2004).

Since 1970, U.S. Supreme Court decisions have allowed states to move away from the traditional federal jury standard of 12 members who must reach a unanimous verdict. Specifically, 6-member juries were held constitutional in Williams v. Florida, 399 U.S. 78 (1970). Nonunanimous verdicts were upheld in Apodaca v. Oregon, 406 U.S. 404 (1972). The relaxation of traditional size and verdict requirements is most prevalent for misdemeanors.

In Alabama, in any trial (except capital cases) by a jury of less than 12 (where parties have stipulated to a lesser number), the verdict must be unanimous (R.Cr.P. 18(c)). Kentucky, Nebraska, New Hampshire, and North Dakota require unanimity.

Louisiana permits nonunanimous juries in felony trials (Const. art. 1, sec. 17(A)). Oklahoma permits nonunanimous verdicts for misdemeanors. Oregon uses a 12-member jury for felony cases but allows a decision of 10 out of 12 (see also Const. art. 1 sec. 11).

Some states continuing to use a 12-member jury and requiring a unanimous verdict will allow parties to stipulate to a smaller, nonunanimous jury. 

For state-by-state information, refer to Table 42, "Trial Juries: Size and Verdict Rules," David Rottman et al., State Court Organization, 2004 ( Washington, DC : Bureau of Justice Statistics, 2006).

Punitive damages are awarded to about 4 percent of prevailing plaintiffs in civil cases. Juries in tort cases awarded punitive damages to about 2.5 percent of prevailing plaintiffs. This phenomenon occurred most frequently in intentional tort (23.5 percent) and slander/libel (21.4 percent) cases. Asbestos cases, which constitute one of the most common types of products-liability cases, produced only 3.8 percent punitive awards. This is a very small number, particularly with respect to the percentage of punitive-damage awards in other products-liability cases (16.1 percent).

For more information please refer to Brian Ostrom et al.,Examining the Work of State Courts, 2001 ( Williamsburg, VA : National Center for State Courts, 2002), particularly  Part 2, “The Role of Juries in State Courts,” at 96.

According to the Court Statistics Project, juries convict defendants in criminal cases approximately 75 percent of the time.

For more information please refer to Brian Ostrom et al., Examining the Work of State Courts, 2001 ( Williamsburg, VA,  National Center for State Courts, 2002). See Part 2, “The Role of Juries in State Courts,” at 101.

Can the court “unring a bell?” Limiting instructions are used to tell the jury to disregard something. The following articles address the topic of use and effectiveness of limiting instructions:

Shari Seidman Diamond and Neil Vidmar, “Jury Room Ruminations on Forbidden Topics,” Virginia Law Review 87 (2001): 1857. Diamond and Vidmar examined videotaped jury deliberations in  Arizona to determine the effect of procedures that “blindfold” jurors. One such procedure was limiting instructions. This topic is discussed at length, especially pages 1864-65, 1882, and 1905 (diagram). Diamond and Vidmar set Wigmore’s closed universe of evidence on its ear, concluding that jurors do bring their life experiences to the deliberation room.

Roselle Wissler and Michael J. Saks, “On the Inefficacy of Limiting Instruction: When Jurors Use Prior Conviction Evidence to Decide on Guilt,” Law and Human Behavior 9 (March 1985): 37. Wissler and Saks propose that studies of FRE 609(a) never presume that jurors use the rule for its intended purpose (i.e., to attack credibility of a witness). Thus, they compare cases in which the prior conviction is for perjury to other types of convictions. Mock jurors found those with prior perjury convictions no more or less credible than those with other types of convictions, but the priors did discredit witness credibility overall.

Generally, limiting instructions are issued after objections to testimony based on FRE 105, 403, or 609. FRE 403 states that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Advisory Committee Notes to FRE 403 suggest that “consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction.”

FRE 105 deals with the limited admissibility of evidence generally. The Advisory Committee Notes cite Bruton v. U.S., 19 L.Ed.2d 70 (1968), in which the Court held that a limiting instruction did not protect against the prejudicial effect of certain evidence.

FRE 609 involves impeachment by evidence of prior conviction of a crime. Wissler and Saks (above) discuss the impact of this rule on jurors.