Abstract
This paper argues that lay people’s legal consciousness, defined as how they experience and interpret the law and legal meanings, can be studied by observing natural conversation. It proposes a framework that analyzes the contexts when law is invoked to account for social behavior, which enables examination of individuals’ perceptions of law through their utilization of and reactions to it. This framework is applied to recordings of a jury deliberation, an ideal setting due to its institutionally-controlled conditions. The analysis demonstrates that jurors wield law as a conversational resource to create distinctions between legitimate and illegitimate conduct based upon their endogenous understandings of these boundaries. The invocation of law is an important element of the deliberation because it permits jurors to enforce these distinctions and understand their completed duties as aligning with the legal system’s ideals. This paper also discusses the ability of this framework to study the law’s influence in other social institutions, as well as those institutions’ own “consciousness.”
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06 November 2019
The original version of this article unfortunately contained mistakes in Excerpts 6 and 8 in terms of text alignment. These mistakes were not present in the proofs provided to the author and were introduced during the final stages of article production.
Notes
Jurors are provided legal instructions by the trial judge and told to evaluate case facts through them. These instructions contain the law that the court determines relevant to the case at hand. As the instructions contain codified law, the terms “legal instructions” and “law” are used interchangeably in this paper.
Later sections of this paper will explain that conversation analysis posits a relationship between language, action, and social reality (Heritage 1984). This relationship allows conversation analysts to draw conclusions about how individuals perceive situations by studying orientations articulated through language practices. As such, conversation analysis is unable to ascertain subjects’ feelings or beliefs beyond what they express.
In virtually all American jurisdictions, jury deliberations occur in private, no justifications are requested for verdicts, and only the final decision is documented (McGowan 2005). It is beyond the scope of this paper to take a position as to whether this secrecy is beneficial or detrimental to the legal system. For a comprehensive assessment of this issue, see Devine et al. 2001 and Devine 2012.
Names and locations have been changed, although actual names and locations were used in the CBS documentary.
The judge reviewed these legal instructions with jurors and allowed them to take printed copies of the instructions into the jury room for reference.
In this paper, the terms “letter-of the-law” and “justice-inclusive” are used to describe rhetorical practices rather than definitive unchanging attitudes held by jurors. These characteristics are elements of the accounts offered by them rather than the jurors themselves. Nonetheless, as evident by the video data, certain jurors consistently offer letter-of-the-law or justice-inclusive accounts and are therefore referred to as letter-of-the-law or justice-inclusive jurors, respectively. This point is consequential because it means that letter-of-the-law jurors can invoke justice-inclusive accounts and vice versa.
It can be hypothesized that jurors may orient to specific colleagues as having greater claims to legal knowledge due to previous legal exposure, such as prior jury service or formal legal training, even though this exposure involves law irrelevant to the jury’s task. Generally, jurors are made aware of their colleague’s legal backgrounds since potential jurors are questioned about them in front of other potential jurors during voir dire. Considering the Garcia jury, this complication was not pertinent as no juror had previous jury experience. Though Juror 1 admitted to having dropped out of law school after a year about 40 years earlier, this was not referenced or alluded to at any point during the deliberation.
In Excerpt 6, Juror 4’s line 7 turn offers a polar question, which is a question that seeks a “yes” or “no” answer (see Stivers 2010 for an overview of the question-response system in American English conversation). The design of polar questions results in grammatical and social preferences for responses to them (Raymond 2003). With regard to grammatical response preference, Juror 4’s question prefers an affirmative “yes” response since it is a straight interrogative. Considering social preference, Juror 4’s question also prefers an affirmative “yes” response since it is pushing for Juror 3 to accept a perceived proper legal account for her position. In line 8, Juror 3 provides an affirmative response to Juror 4’s question, although her response resists the constraints of the polar question and is instead repetitional. Heritage and Raymond (2012) show that repetitional responses, as contrasted to a yes/no response, assert a respondent’s epistemic rights to the proposition raised by the questioner by confirming rather than affirming it. In the context of the jury room, Juror 3’s response can be seen as both affiliative and even preferred because she is trying to show that she independently asserts the legal rationale that Juror 4 suggests, rather than simply weakly affirms it.
Schegloff’s (1996) study of person reference reflects the principle of progressivity in conversation and the norm against telling people what they already know. Schegloff makes the distinction between locally initial reference forms, which includes full phrases and nouns, and locally subsequent references, such as pronouns. He argues that reference forms involve a trajectory from greater to less explicitness, as in the example of “Mary Jane” being referred to as “she” in subsequent talk. When conversants depart from norms, it is presumably for a reason and understood to be motivated.
Letter-of-the-law jurors orient to letter-of-the-law verdicts as being accountable to the law. Following from this, letter-of-the-law jurors also orient to the expectation that accounts using the most clear, explicit legal language should have the greatest likelihood of persuading other jurors to alter their positions, since these positions are accountable to the law expressed in the invocations.
See Footnote 9. A repetition of a question’s components shows ownership of the proposition raised by a questioner (Heritage and Raymond 2012).
This section does not argue that deliberations end at the first point a jury perceives that all jurors have legitimately accounted for their verdict preferences. Rather, it argues that in hindsight, the sequence of talk preceding a jury reaching its final verdict decision, and choice to notify the court of this, will include jurors whose position accounts are perceived as questionable, clarifying them with legitimate justifications. This clarification may either be voluntary or occur after some pushing, and might not be the first occasion that such clarification was offered. Admittedly, this argument has theoretical hitches, such as if juries use written ballots rather than oral roll calls.
This percentage is based on studies of twelve-person juries. Devine et al. (2001) do not provide statistics for eight-person juries. For six-person juries, a four-to-two initial distribution in favor of a guilty verdict results in hung juries 35% of the time. Either way, the existence of two jurors with a not-guilty verdict preference is associated with a distinct risk of the jury hanging.
Interestingly, Garcia was later retried before a new jury that convicted her of all charges in 45 minutes. This jury initially had unanimous verdict agreement and legal accounts were not a major component of discussion.
Jurors’ orientation to the availability of the same law to both support and reject a verdict is evidence of its versatility as a conversational resource.
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Acknowledgements
I am particularly indebted to Steven Clayman for insights provided through his close reading of several earlier drafts of this paper. Additionally, I would like to thank Christopher Erickson, Yu-Hui Lee Fox, David Gibson, John Heritage, Jack Katz, Máximo Langer, Gabriel Rossman, Lynne Zucker, the five anonymous Qualitative Sociology reviewers along with Editor-in-Chief David Smilde for their helpful comments.
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The original version of this article was revised due to alignment in Excerpts 6 and 8.
Appendix: Conversation-Analytic Transcribing Conventions
Appendix: Conversation-Analytic Transcribing Conventions
Conversation-analytic transcribing notations are utilized in the presentation of data excerpts. This appendix presents a complete list of notations used in this article and briefly explains each. For a more complete list and explanation of standard conversation-analytic transcription techniques, you should refer to Jefferson 2004; Gibson 2011, 410–411; or Heritage and Clayman 2010, 283–287.
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Fox, M.P. Legal Consciousness in Action: Lay People and Accountability in the Jury Room. Qual Sociol 43, 111–142 (2020). https://doi.org/10.1007/s11133-019-09422-2
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DOI: https://doi.org/10.1007/s11133-019-09422-2