Contemporary jury research

As Manzo (Reference Manzo1993, Reference Manzo2019) noted, contemporary jury research examines the relationship between input variables, such as case and juror characteristics, judicial instructions, jury size, and “post-hoc suppositions that attempt to reconstruct the deliberation process” (2019, 20) on the one hand, and output variables—the verdict—on the other, while simultaneously ignoring the interactive and interactional processes en route to a verdict.Footnote ² As he mentions (2019, 20), “most methods of jury research entail no analysis of deliberation activity at all.” More explicitly, orthodox jury research employs mock juries, post-trial interviews/recollections, and archival analysis to show how juror, witness, and defendant characteristics play a role in reaching a verdict.

Moreover, jury researchers use such methods and variable outcome approaches with an eye toward reforming the deliberation process and evaluating those reforms. As the major scholars in the field put it: “Research should maximize the quality of jury decision making Diamond (Reference Diamond, Grisso and Brodsky2018, 312). According to Kovera (Reference Kovera and Kovera2017, 4), the major questions to address in jury research are: “Does the jury function as intended? Are juries fair and impartial? Do they follow the law? Do they properly evaluate the evidence?”

But the question remains: How does actual jury performance measure up to some ideal-typical standard of correctness, as if there were some Archimedean vantage point to evaluate this? Is it possible to specify some ideal-legalistic verdict to which juror’s actual decision making should be compared and evaluated? This is not to say, nor is it meant to suggest, that jury research or reforms are unnecessary or unimportant but rather to stress that the interactional object to which reforms are applied might be a logical first step in any jury research/reform agenda. In fact, the most conspicuous omission in jury research and the problem with coding, interviews, post-hoc recollections etc. is this: they ignore the interactive features of multimodal conduct during deliberation. I address this absence in the current paper.

What is multimodal conduct?

Multimodal conduct refers to the integration or synchronization of various communicative resources including ad hoc or idiosyncratic co-speech gestures, gaze, facial expression, material objects, and speech. Ad hoc gestures refer to hand movements that synchronize with speech in the production of meaning and utterance construction. According to McNeill gestures can be classified as iconic, metaphoric, deictic, and beat motions of the hand. Iconic gestures are imagistic signals that resemble their referent; metaphoric gestures present an abstract image in which a concrete source domain is mapped onto an abstract target; deictic gestures consist of pointing movements; and beats highlight significant points and orchestrate the rhythms of speech to increase the persuasiveness of the message. McNeill further claims that the above gestures are discretely organized. However, as we will see gestures may be more multifunctional than McNeill’s classification system claims.

Two other multimodal resources are relevant for this study. First, gaze co-occurs with gesture and speech to create a focus of joint attention while facial expressions encode emotions. And second, material objects signal a state of heightened involvement or emphasis in some course of action.

My methodology draws on what Streeck (2009, 5) calls the micro-ethnography of gesture, speech, and other modal resources and how these function in the integrated production of “meaning constitution.” Such naturalistic methodology demonstrates how social actors bring speech, gesture, gaze, material objects, and other modal resources to bear on a persuasive and poetic narrative during deliberation. As we will see in the ensuing analysis, looking at jury interaction multimodally provides a more comprehensive, dynamic, and robust picture of discourse, especially with all multimodal cylinders firing simultaneously in the integrated production of meaning, than looking solely at speech.

Background of the case

The case under consideration involves a convicted felon, Leroy Reed, who had been out of prison and “clean” for nine years. Looking for employment, Reed signed up for a mail order detective course and bought a gun he thought he needed to go along with the badge that came with the course. Inexplicably, Reed was hanging around the courthouse and when a Sheriff’s deputy asked for identification, he presented a purchase slip from the sporting goods store where he bought the gun. After the deputy ran an ID check he found that Reed was a convicted felon and told him to go home and bring in the gun. When he did so, he was arrested and charged with “Felon in Possession,” a serious felony carrying up to ten years in prison in the state of Wisconsin.

During the trial, Reed’s public defender told the jury that Reed was indeed a felon and was in possession of a firearm but that he should be acquitted “anyway” because the charges should never have been filed in the first place (primarily because as the psychologist on the case indicated, Reed had below average intelligence and read at a “third grade level”). In response, the prosecuting attorney argued that Reed was a felon, possessed a firearm, and should therefore be found guilty, setting up a classic confrontation between, in Weber’s terms, formal legal rationality and substantive legal rationality.Footnote ³

At the outset of deliberation, several jurors “leaned” in the direction of conviction, several others toward acquittal, with the remaining jurors undecided. One of the female jurors stated that she would vote for acquittal because if “Reed were such a threat to society that Sheriff’s deputy had no business telling him to go home and bring in that gun.” One of the male jurors stressed that according to the judge and prosecuting attorney’s instructions if someone is a felon and in possession of a firearm that person has violated the law and must be found guilty. The stage is thus set for determining what the defendant knew or did not know about the crime of felon in possession. We begin with John’s narrative below.

The example above addresses why Leroy decided to get a gun. Did he merely intend to (1) abide by the requirements of the Global Detective Course or did he (2) purchase the gun with malicious intent? Did he know it was illegal for a felon to possess a firearm (or did he even know he was a felon)? Or did his limited cognitive ability—his tunnel vision—only permit him to focus narrowly on the course requirements?

John begins his narrative with the discourse marker I mean that functions as “clarification, explanation, elaboration and reformulation” of some position (Beeching Reference Beeching2016, 190). The marker is followed by the adverb maybe to convey the degree of certainty of the proposition and an offer to correct me about the Global Detective Course. His utterance consists of quite more than just speech however. What is even more noticeable is the intricate gesture that co-occurs with the Global Detective Course. His speech is accompanied by a “jabbing” motion—figuratively representing a sharp critical remark or insult—in which the right closed palm horizontal hits the open palm of the left hand (with the fingers facing upward) and then a beat gesture in identical position, a metaphoric gesture that appears to be sticking a knife into the Global Detective Course. In this instance, the jab gesture represents a preliminary insult that foreshadows the humorous side assessment in line 03: Ha ha I’d like to find a deep pit to throw that into. In so doing, he moves from merely naming the Global Detective Course to evaluating it (see Figure 1).

Figure 1. Line 02 Global Detective course.

Just as important, John employs an open palms facing one another gesture to help frame his insult, a container metaphor in which the object or container reflects the metaphorical concept that ideas or categories are containers. As Calbris (Reference Calbris2011, 119) puts it: the gesture points to “an empty space between two parallel boundaries … that defines an entity either contained within the boundaries or containing something, which the palms could be holding.” In this case, the metaphoric entity symbolizes a big pit (line 03) (see Figure 2).

Figure 2. Line 03 Ha ha.

Relatedly, he initiates the humorous side evaluation with two short laughter particles accompanied by a smile and backwards body movement, an evaluation that stimulates a 5.1 second spate of laughter from fellow jurors in line 04 (during which he gazes at the laughing jurors). Although a narrative, John’s contribution is a thoroughly interactive co-construction, that is, an interaction between him and other jurors via the invitation to laugh. In fact, his laughter particles not only invite other jurors to laugh along with his assessment but to show affiliation with it. In stark contrast to orthodox jury research, this demonstrates in vivid detail how jury decision making does not exist in an interactive vacuum but represents a thoroughly multimodal co-construction.Footnote ⁴

Consider the laughter sequence in more detail, specifically as an indication of the interactive nature of deliberation. First, John neither talks over nor laughs with his audience, thus maintaining the integrity of audience affiliation as if letting the laughter soak in while enjoying the outcome of his invitation. Second, he maintains a composed stance during audience laughter by standing apart from those laughing—a strict division of labor in the comedic sequence. Third, his lack of co-laughter does more than merely maintain the integrity of juror laughter; it also calibrates his side assessment as an insult. That is, it warrants the humor of the insult. The audience re-calibrates the insult with their laughter, as he allows them to laugh—affiliating with other jurors, as they affiliate with his evaluation in a dynamic multimodal gestalt.

For instance, if he had resumed talking, aborting their laughter, it would have marked their response as inappropriate (that he was not making a joke, see Matoesian Reference Matoesian2005). He needs to let them laugh for the total exchange between speaker and audience to be understood as an insult. That is to say, their parts all re-calibrate his initial speech as an insult. It is not unique in speech exchange systems but it is unique in that it requires three parts: initial speech, laughter response and lengthy pause to allow for laughter.

In lines 05–06, he delivers two explicit acknowledgement tokens to fellow jurors, treating recipient laughter as affiliative with his evaluative stance: I know it gets pathetic and comic. John also adds embodied conduct over both lines, a lateral head shake, gaze and smile that co-occurs with the former, a second facial expression of smiling over the latter—both to accentuate his comedic evaluation.

The humorous side evaluation and recipient laughter derail utterance progressivity until completion (line 04) When co-participant laughter subsides after 5.1 seconds, John resumes utterance progressivity in the clear; that is, he withholds utterance progressivity until recipient laughter subsides.

However, the laughter does not stop on its own. In line 07, John’s discourse marker Um okay terminates the laughter and initiates a shift in topic direction, a shift that allows him to resume narrative progressivity after the side segment (see Schiffrin Reference Schiffrin1987).

After the discourse markers in line 07 he resumes utterance progressivity with the first person and epistemic stance verb (I think). On warning in line 08, John employs a gesture with the left open palm facing outward and fingers spread to convey a stop metaphor (see Kendon Reference Kendon2004). This, in turn, is followed by a contrast between the warning and but in line 09 that co-occurs with the right index finger crossing the left index finger two times to further accentuate the warning component (signaling a “naughty child” or you’re in trouble if you don’t get your requirements: you got to get your requirements for being a detective in lines 10–11, one of which is the gun purchase issue).

In more detail, line 09 consists of a finger stroking gesture (“shame on you” etc.), in which the tip of the right index finger crosses over the stationary left index finger (see Figure 3 below). Morris (Reference Morris1994: 94–5) refers to this gesture as a “forefinger rub,” in which the speaker holds one index finger straight or stationary then stroking it away from the body with the other index finger. One finger rubbed up and down on the other stationary index finger metaphorically encodes friction (or an insult).

Figure 3. Line 09 one of the things.

Lines 09–11 consist of a quotative that includes a directive from the Global Detective Course: the necessity of getting your requirements for being a detective (lines 09–10). The direct quote lends evidential weight to the argument. The embedded directive adds instructional authority to intent. Together, both show that the defendant merely followed an essential condition for passing the course (rather than having malicious intent). Finally, John’s co-speech gesture (in line 11) contains both open palms prone with the fingers spread, a gesture that symbolizes something being “denied, negated, interrupted or stopped)” (Kendon Reference Kendon2004, 248). By using this gesture, John indicates that to pass the course and become a detective the student must fulfill course requirements.

In sum, the analysis thus far demonstrates the interactive and multimodal nature of juror deliberation, interaction typically neglected in jury research (invitation to laugh, response to laughter, and shutting down the side sequence). We have seen how gestures and other forms of embodied conduct are not mere tangential features of deliberation but constitute the evidential infrastructure of jury interaction.

Formal versus substantive legal rationality

In the previous section, I analyzed the interactive dimensions of jury decision making and how multimodal conduct figures prominently in the organization of deliberation. In the remaining sections, I demonstrate how, following Jakobson (Reference Jakobson and Sebeok1960) and Silverstein (Reference Silverstein and Schiffrin1985), the poetic function inheres not only in speech but also in the multimodal confrontation between formal and substantive legal rationality, more specifically how it functions to mark stance in the polyrhythmic integration of speech, gesture and material conduct.

In the examples below, Lester responds to Karl’s claim that Leroy is a felon, that he knew he was a felon, and that he purchased a gun. In response to Karl’s narrative, Lester builds a dichotomy between doing justice versus following the letter of the law, and he does through the integration of speech and embodied conduct.

Seen through the lens of formal legal rationality, jurors are little more than mechanical creatures who simply check off the criteria for guilt (as in example 4, line 18). With this point in mind, Karl endorses the prosecution’s logic (example 2) that (1) a felon in possession is against the law; (2) Leroy Reed is a felon and in possession; and (3) therefore he is guilty. In response, Lester argues he is not a computer and the role of the juror involves more than merely following the letter of the law; jurors must also consider justice or substantive legal rationality, a legal issue relevant in this particular case. Put another way, doing justice requires more than merely agreeing with the prosecution and following the letter of law in a perfunctory sense.Footnote ⁵ Thus for Lester doing justice involves principles outside the law and incorporates values, ethics and broader moral context when making decisions in the individual case. In this regard, substantive legal rationality functions quite differently than matter of fact procedures based on a logical analysis of legal rules (or formal rationality).

And he mobilizes poetic oratory to create a nimbly improvised performance consisting of fleeting passages of insistent repetition. In his classic “Linguistics and Poetics,” Roman Jakobson (Reference Jakobson and Sebeok1960) defined the poetic function of language (and differentiated it from the referential, emotive, metalinguistic, conative, and phatic functions) as a “focus on the message for its own sake,” language as an emotionally evocative aesthetic pattern that calls attention to itself.Footnote ⁶ Years later his student, Michael Silverstein (Reference Silverstein and Schiffrin1985), added that the poetic function (such as parallelism, repetition and other aesthetic features) applies to any form of rhythmic recurrence or cardinal arrangement of equi-valued signs and signals specific interpretive strategies in both narrative and co-present interaction. It creates a sense of heightened drama and persuasive involvement that engages the audience and tells listeners how to evaluate the recurrent elements. Such metrically patterned and emotionally driven rhythms highlight or enliven speech and contribute to a sense of cohesion in a message or that can, through a subliminal sense of “fit” created by that patterning, make what is being spoken seem more or less natural or logical.

Yet there is no a priori reason to limit the poetic function to language or speech (see Lempert Reference Lempert2018; Matoesian and Gilbert Reference Matoesian and Gilbert2018, Reference Matoesian and Gilbert2023; Gilbert and Matoesian Reference Gilbert and Matoesian2021). As I demonstrate in the ensuing analysis, the rhythmic interplay of speech and gesture, such as the integration of metricalized gestures (like beats) with talk, creates a dense weave of poetic organization that evokes powerful emotions, emotions that enhance the effectiveness of oratory and persuade other members of the jury. Here, we will revisit, refit, and revise familiar Weberian themes by considering their sociocultural significance for jury deliberation: how the notion of justice circulates in the concrete details of multimodal or cross-modal poetics.

With these theoretical points in mind consider multimodal poetics in concrete detail, beginning with Example 3. In this example, Lester dismisses Karl’s point about the sympathetic point of view and he does so with a polyrhythmic structure consisting of repetition in both speech and gesture. First, he repeats think and sympathy two times, repetition co-occurring with a litany of beats using the right open palm prone (lines 01–04), gestures that signal something being negated (Kendon Reference Kendon2004, 248). This is followed by I am not a computer (line 04), a form of polyrhythmic variation that echoes Weber’s iron cage of bureaucracy or machine-like metaphor.

Additionally, in lines 01–04 he mobilizes repetition in the negative auxiliary and perception verb (I don’t think, sympathy, I do not think), a form of variation in which co-speech beats occur with each of the verbal repetitions to not only orchestrate the rhythms of speech but foreground significant information.

In line 07, he develops the metaphor with repetition of the present progressives – thinking, breathing human being – to create a heightened sense of substantive rationality (or more precisely the relationship between the nature of human nature and justice) using a poetic interplay consisting of rhyme and contrast in line 09: I’ll tell/ you tell me.

In lines 10–13, Lester expands his position by arguing that the three counts against the defendant are obvious, with repetition of the distal demonstratives; We’re not arguing that; We all know that; There’s more to it that just that. In lines 14–15, he produces a hypothetical quote attributed to us, a quotative that includes other jurors in the first person plural that appeals to fellow juror’s sense of justice and morality. Lester reaches a crescendo in line 16 and repeats the cog in the machine identity (bring in the computer) to mobilize a tightly arranged climax in the narrative episode. For a second time, he uses the computer metaphor to make an invidious comparison between formal and substantive legal rationality and, even more important, mark the contrast between humans and computers—a comparison that implores fellow jurors not to act like a machine.

In example 4, Lester expands the distinction between law and justice along several dimensions. First, (in line 02) he counts off the cardinal numbers (one, two, three) followed by the cut and dried idiom (in line 04) (an idiom that means without debate or argument, routine, settled in advance etc.) to highlight the simplicity of charges against the defendant. Once again, it is not just speech that conveys meaning. Each cardinal number co-occurs with right-hand index finger beats on the table to provide a poetic flourish and resonance, a type of polyrhythmic staccato fragmentation in both speech and gesture (see Figure 4).Footnote ⁷ By hitting the table, Lester injects material objects into the multimodal environment (along with speech and gesture) to signal a state of heightened involvement in some course of action. In a much more active rather than static sense, material objects represent interactional and symbolic resources in the constitution of meaning.

Figure 4. Line 02 one two three (beats x3).

Second, while counting off the numbers, Lester gazes at his index finger movement, an integration of speech, gesture, gaze and material object that turns the beats into an interactionally significant object. As Müller (Reference Müller, Cienki and Müller2008, 236) puts it: “Directing the gaze at something … indicates speaker’s focal attention which might be characterized as principles of ‘What I am looking at is what I am talking about’ and ‘therefore this is what you should also look at.’ Put differently, gaze direction functions as a pointing gesture …”

Finally, the idiom co-occurs with two closed right hand slices directed toward (but not hitting) the table (line 04), an immaculately executed rhythm that generates an emotionally charged—emphatic—stance (see Figure 5).Footnote ⁸ Morris (Reference Morris1977, 38–9; Reference Morris1994, 103) mentions how the slice is metaphoric of “slicing through verbal confusion to make a strong clear point” (or “to cut through a problem”). The open palm vertical slice occurs with high elevation on the upstroke and accelerated motion on the downstroke to produce a “big” gesture for the crescendo. Metaphorically, the gesture slices through moral arguments to reach the three counts against Leroy. In this integration of disparate semiotic resources, Lester demonstrates how formal legal rationality inheres in the polyrhythmic details of multimodal conduct, details ignored when considering just speech.

Figure 5. Line 04 cut and dried guilty.

With these points in mind, consider the mutual cooperation among stance, multimodal conduct, and poetic structure in more detail.

1. 1. The cardinal numbers (one, two, three) alone do not mark stance. But when co-occurring with the three beat gestures (line 02), idiom, and poetic syllogism both affective and epistemic stance emerge simultaneously and retroactively. Epistemic stance refers to the degree of certainty of the proposition; affective stance encodes the speaker’s emotional intensity regarding the proposition. Together, both epistemic and affective stance deliver an emphatic punch that grounds the authority of knowledge to influence how listeners interpret the message.

2. 2. Lester’s gestures retrospectively recalibrate the cardinal numbers to convey stance; each number corresponds to one of the three counts against the defendant. Once again, the sequence of cardinal numbers (one, two, three) does not evoke stance on its own; only the poetic interplay of beats in line 02 and slice gestures in line 04 retroactively recalibrate meaning to bestow both epistemic and affective stance with a delicate touch and refined clarity on the counts: Leroy is a felon; he is in possession of a gun; and he knows he is in possession of a gun. In this instance, the poetic integration of multimodal resources—speech, gesture, gaze, and materiality—plays a crucial role in the intensification of stance marking.Footnote ⁹ Lexico-grammatical resources work in concert with embodied resources—a multimodal gestalt—to infuse the speaker’s stance with socio-legal imagery (formal legal rationality). As mentioned previously, the cut and dried idiom refers to something carried out in a perfunctory, routine, or cursory manner. In the process, it corresponds metaphorically, in both speech and gesture, to formal legal rationality with its orientation to the mechanical or ritualistic task of merely checking off items in a bureaucratic inventory list.

3. 3. Stance emerges not only multimodally and retroactively but through polyrhythmic text-metrical structure and, in the process, creates a simultaneous fusion of both affect (in gesture) and epistemic authority (in speech), in which stance works its way through the unfolding polyrhythmic structure: a multimodal division of labor in stance marking. The three co-speech beats function as counts against Leroy and the idiom represents the sociocultural conclusion (the deduction from the counts/conditions or in more technical terms “the logical consequent”). Poetic structure contributes to stance marking retroactively, by linking the idiom to the cardinal numbers and co-speech gestures. It weaves these disparate multimodal elements into a united gestalt via deducing consequences from the syllogism.Footnote ¹⁰ As this occurs, the gestalt configuration of beats, speech, idiom, and poetic structure conveys metaphoric imagery in the form legal rationality. Thus, stance participates in a poetic multimodal gestalt, from which it derives its sense and significance.

4. 4. In sum, the integration of poetics, gesture, and stance produces a multimodal gestalt to convey sociocultural imagery: that is, formal legal rationality. Poetic structure participates in stance marking by retroactively linking the idiom/slice to the beats/cardinal numbers via the deductive syllogism. Each beat corresponds to one of the cardinal numbers to foreground the counts against Leroy while the slice represents the crescendo. And stance marks speaker certainty and affect simultaneously, the former occurring in speech, the latter in visual behavior.

Several final observations: In lines 05–07 Lester invokes the first-person plural we and possessive determiner (or possessive adjective) our to once again include other jurors in the decision-making process while imploring them to follow his lead. Put another way, he speaks on behalf of fellow jurors and instructs them about their role in the rational versus substantive dichotomy: has justice been done here (line 08) and that’s what we’re here to do (line 12). To develop that issue, he uses the open palms facing one another gesture (line 07) as if containing a particular item: justice. Notice also that he employs the stance verb I don’t think (line 05) while in lines 08–09 he moves to a much more explicit position: has justice been done (lines 08 and repeated in line 10) and the embedded I don’t care what the law says. That is, he addresses the issue of doing justice versus following the letter of the law in some routine or perfunctory fashion and makes an invidious comparison between them.

In lines 10–12 Lester repeats the distal demonstrative several times to further accentuate his basic point (line 11). Next, he mobilizes a rhyming or flip flop repetition of the proximal/distal demonstratives (the law says this, and the judge says that in lines 13–15) followed by two formally marked contrasts (in lines 16 and 17).Footnote ¹¹ Here, poetic structure is encoded in and through the contrastive demonstratives alternating in a diffuse rhythmic interplay, an interplay that signals how the law and judge appear indecisive or irresolute about the jury’s role in deliberation—a final poetic flourish in a dynamically improvised performance.