Can the Jury Flip a Coin?
When it comes to trial, not all rules are created equal. Some rules, like the prohibition on lawyers privately communicating with jurors, are strictly enforced and have real consequences if breached. But other rules are more like a mission statement or an aspiration. The courts would certainly prefer that they be followed, but actively resist any effort to actually enforce them.
One such example is the prohibition on quotient verdicts and chance verdicts. While quotient verdicts and chance verdicts are unambiguously, strenuously banned by every court in the nation, a majority of jurisdictions make it essentially impossible to enforce the rule in any kind of meaningful way.
What is a quotient verdict? Imagine a jury is deciding how much to award a plaintiff in damages. Rather than haggle over numbers, each juror writes a number on a slip of paper and tosses it in a hat. They then take the average of those numbers (requiring division, hence a “quotient”) and write it down on the verdict sheet. While this certainly saves a lot of time, courts throughout the United States have condemned the practice as “reprehensible, to say the least” arguing that “it is hardly possible that an honest result could thus be obtained.” [1]
Why? The theory goes that “such verdicts do not represent the independent opinion of each juror and this undermines and circumvents the deliberative process underlying the jury system.” [2] The courts are very invested in the notion that jurors will genuinely take the time to work through the evidence to reach a decision and resolve any internal disagreements through discussion and debate. None of that happens if the jury just takes a rough average and goes home. To be clear, nothing prohibits a jury from taking a poll or computing an average in connection with a broader discussion of what the damages ought to be. A quotient verdict is only prohibited when a jury agrees beforehand to be bound by the result, without further deliberation or discussion. [3]
Chance verdicts are often lumped in with quotient verdicts because they also undermine the concept of deliberation. A chance verdict is any verdict decided by a random event, whether by flipping a coin, drawing slips of paper from a hat, or anything similar. As you would expect, chance verdicts are also “universally condemned” [4] by every court to ever consider the issue, as a method of decision that “must be reprobated by every honest man.” [5] Despite this, reports of verdicts decided in this fashion have cropped up throughout our nation’s history, even in murder trials. [6]
However, while the prohibition on quotient verdicts and chance verdicts is essentially universal, actually enforcing that prohibition is not. While some state courts [7] will overturn verdicts when confronted by evidence of a chance or quotient verdict, in the federal system and the majority of states you will struggle to find any decisions actually enforcing the rule. To the contrary, courts bend over backwards to ignore quotient verdicts and chance verdicts even when confronted with definitive proof that they have occurred. And the rules in most jurisdictions are set up to make it virtually impossible for a party to successfully challenge a jury verdict as the result of a quotient or random lot.
Chief among these rules is Fed. R. Evid. 606, and its many state law cousins. [8] Rule 606 prohibits juror testimony “about any statement made or incident that occurred during the jury’s deliberation” in connection with an inquiry into the verdict. Since nobody else is in the jury room to observe how a verdict was made, this makes proving that a decision is a quotient or chance verdict virtually impossible. Even if multiple jury members confess to the misconduct, the court will ignore the confessions and uphold the verdict anyway. For example, consider Complete Auto Transit, Inc. v. Wayne Broyles Eng'g Corp. [9] In that case a jury was empaneled to decide a property damage case arising from the collision of two tractors. After rendering a verdict, seven of the twelve jurors came forward and signed sworn affidavits confessing that they had come to a verdict by agreeing to take an average. Despite this, the Fifth Circuit refused to order a new trial, finding that the affidavits could not be considered.
Ah, but what if – by some miracle – there is other evidence? Will a court still find a way to uphold a jury verdict that was the result of a dice game or some third-grade division? In most states – still yes.
Consider the case of Lund v. Kline, [10] decided by the Ohio Supreme Court. A jury was empaneled to decide a personal injury case arising from a car crash and returned a verdict of $2,700. Eight of the twelve jurors subsequently admitted in sworn affidavits that they had decided to rule for the plaintiff by a simple majority vote and that all jurors voting yes had written down a number for damages, which was averaged and returned as the verdict. In addition, the defense counsel managed to obtain the trash can from the jury room and retrieved the individual slips of paper where the jury had written down their votes and damages numbers. Surprise, surprise, they averaged to exactly $2,700.
Despite this, the Ohio Supreme Court refused to permit a new trial, reversing an intermediate appellate court that had ordered one. It held that the affidavits from the jury were inadmissible, under Ohio’s equivalent of Rule 606. And without the affidavits, it held that the slips of paper “merely show that the quotient result and the amount of the verdict are the same, but do not show the existence of a prior agreement on the part of the acquiescing jurors to be bound by the quotient result.” [11] Head deeply in the sand, the court breathlessly declared that “[m]isconduct of a jury will not be presumed, but must be affirmatively proved… [t]he law will presume proper conduct on their part,” and held the verdict valid. [12]
So, what’s the upshot of all of this? Obviously, venue matters – you might be able to challenge a coin flip verdict in Florida state court but not New York, Texas, or any Federal District Court. But the real lesson is the importance of character in jury selection.
Voir Dire exists not merely to root out the heavily biased or mentally ill, but also to eliminate the unserious, the pathologically lazy, or any other individuals who will not participate meaningfully in the jury process. In addition to everything else you select or deselect for, you also need jurors with a conscience and some sense of civic virtue and/or personal honor. Because while the court will read the jury all of the rules, there are some that they will only follow if they choose to.
[1] Haight v. Hoyt, 50 Conn. 583, 585 (Conn. 1883).
[2] Malone v. Marks Bros. Paving Co., 168 So. 2d 753, 756 (Fla. App. 1964).
[3] Shankman v. State, 184 N.J. 187, 198 (2005) (“Use of averaged figures for purposes of discussion and deliberation is not improper; rather, it is the advance agreement to be bound to the averaged amount, whatever it may be, that renders a ‘quotient verdict’ objectionable.”).
[4] Reyes v. Seifert, 125 F. App'x 788, 789 (9th Cir. 2005) (“Because verdicts based on chance deprive defendants of their right to due process, the practice of reaching a verdict in that manner has been universally condemned.”).
[5] Cluggage v. Swan, 1811 WL 1498, at *4 (Pa. 1811) (“The decision of a contested case by lot or chance must be reprobated by every honest man; and it is obvious that every suitor has an undoubted right to have his controversy terminated by a different measure of justice”).
[6] Consider Goins v. State, where a man was convicted of murder based on votes drawn out of a hat, and “thus it may appear to all the world, by the subsequent statements of the jurors, that the liberty of a citizen has been gambled away in a jury-room.” 46 Ohio St. 457, 472 (1889).
[7] Notably California, Florida and New Jersey permit questioning of jurors to investigate misconduct, including quotient verdicts. See, e.g., Greens to You, Inc. v. Gavelek, 967 So.2d 318 (Fl. App. 2007). A few other smaller states also have narrow exceptions for investigation of quotient verdicts and chance verdicts specifically, including Tennessee, Arizona, Montana, and North Dakota. See Tenn. R Evid. 606(b); Ariz. R. Crim. P. 24.1(c)(3); Mont. R. Evid. 606(b); N.D. R. Evid. 606(b)(2)(B).
[8] Twenty-five states have evidence rules that are substantially similar to Rule 606. But many other states, like New York or Illinois, embrace the prohibition on inquiry into juror decision-making even without a formal rule. SeeBenjamin T. Huebner, Beyond Tanner: An Alternative Framework for Postverdict Juror Testimony, 81 N.Y.U. L. Rev. 1469, 1487 (2006).
[9] 351 F.2d 478 (5th Cir. 1965).
[10] 133 Ohio St. 317 (1938).
[11] Id. at 320.
[12] Id.
