War and Peace in the Jury Room: How Capital Juries Reach Unanimity

67 Pages Posted: 12 May 2010 Last revised: 1 Jul 2011

See all articles by Scott E. Sundby

Scott E. Sundby

University of Miami School of Law


Using data from the Capital Jury Project, this article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The process proves to be a fascinating one. The article first examines the relationship between first ballot voting patterns and the ultimate sentence, and then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case-to-case in how they convert holdouts to the majority position (the striking differences are between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the closing argument in the death penalty case of Susan Smith (the mother who had done the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the article concludes by examining how a closing argument might address many of the pressures that affect holdouts.

Keywords: Death Penalty, Juries, Imperical, Decision-making, Sentencing

JEL Classification: K10, K14, K41

Suggested Citation

Sundby, Scott E., War and Peace in the Jury Room: How Capital Juries Reach Unanimity. Hastings Law Journal, Vol. 62, 2010, Washington & Lee Legal Studies Paper No. 2010-6, Available at SSRN: https://ssrn.com/abstract=1604572

Scott E. Sundby (Contact Author)

University of Miami School of Law ( email )

1311 Miller Dr.
Coral Gables, FL 33146
United States
305-284-5848 (Phone)

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