Improving Criminal Jury Decision Making After the Blakely Revolution


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The shift in sentencing fact-finding responsibility triggered by Blakely v. Washington will dramatically change the complexity and type of questions that many juries will have to answer. Among the most important challenges confronting legislatures now debating the future of their sentencing regimes is whether juries are prepared to handle these new tasks effectively—and, if not, what can be done about it. The literature addressing Blakely and jury reform advocates have essentially ignored these questions—yet absent reform, a number of limitations on juror decision making seriously threaten the accuracy of verdicts and the fairness, effectiveness, and credibility of the criminal justice system. In this essay, we assess juries’ capacity to handle their new post-Blakely responsibilities, considering problems of cognitive overload, frustration and loss of motivation due to complex structures, difficulties evaluating certain kinds of evidence juries do not ordinarily consider, distortions due to the framing of non-binary questions, and deliberation-related biases, among others. We then propose a model for sentencing-stage jury proceedings that would minimize these problems. Its components include bifurcation of proceedings, partial application of the rules of evidence, formulation of special verdict forms in certain specific ways that will minimize framing effects, structural simplification of sentencing tasks, a more active jury, and guidance for jurors on bias-reducing deliberation structures.


Constitutional Law | Criminal Law | Criminal Procedure | Evidence | Law and Economics

Date of this Version


Previous Versions

Revised, 2006
Original, 2005