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288 Hastie,Schkade,and Payne

1992; Daniels & Martin, 1995; Lempert, 1993; Saks, Hollinger, Wissler, Evans, & Hart, 1997; Schuck, 1993; Vidmar, 1995).

What is incontrovertible is that in a nonnegligible number of cases juries render distinctively harsh antidefendant judgments and set dramatically large awards. Virtually all of these extreme verdicts are substantially reduced or reversed by appellate courts; the reduction rate is over 50% for many classes of awards (e.g., American Law Institute, 1991; Broder, 1986; Daniels & Martin, 1990; Landes &

Posner, 1986; Ostrom, Hanson, & Daley, 1993; Peterson, Sarma, & Shanley, 1987). These observations imply that, under some conditions, trial juries render verdicts

that are consistently discrepant from legal principles and precedents.

One focus of the controversy over the performance of the civil jury is on punitive damage awards. Historically, punitive damages were introduced into the common-law tort system to punish and deter conduct that approached criminal levels of egregiousness and maliciousness. At first punitive damages were rarely awarded, but since the late 1970s, juries have imposed punitive damages with in-

creasing frequency and in escalating amounts (the largest punitive damages award in the history of civil jury trials was the $5,000,000,000 award assessed against the Exxon Corporation in 1994, following the Exxon Valdezoil spill).

In a typical jury trial in which punitive damages are sought, there is an initial determination of liability with three possible outcomes: the defendant is not liable for any damages; the evidence demonstrates the defendant's conduct was negligent and only compensatory damages may be warranted;or the defendant's conduct was more than negligent and reached levels of reckless or malicious conduct and both compensatory and punitive damages may be warranted (Ghiaridi & Kircher, 1995; Roeca, 1984). The legally necessary conditions that must be established to conclude that punitive damages are warranted identify conduct that approaches criminal lev-

els of reprehensibility (indeed, some states do not allow punitive damages in civil trials, but instead apply criminal sanctions to the same types of misconduct). A typical set of requirements to conclude that a defendant's conduct was reckless enough to warrant punitive damages includes subjective consciousness of a foreseeable and probable grave danger consequent on the conduct, conscious disregard for the danger by the defendant, conduct that was a gross deviation from an ordi- nary level of care, and the occurrence of the dangerous outcome (Eades, 1993). The application of these instructions requires jurors to make several difficult, sub- jective judgments of intangible conditions.

The Supreme Court appears to be trying to develop a uniform, principled doctrine for the assessment of punitive damages. Some justices are concerned that current procedures do not provide sufficient guidance and control of jury verdicts (e.g., O'Connor dissenting in Pacific Mutual Life Insurance Co. v. Haslip, et al., 1991; Kennedy concurring, and O'Connor, White, and Souter dissenting in TXO Prod. Corp. v.Alliance Resources Corp.,et al., 1993; Steven's lead opinion in Honda Motor Co., Ltd., et al., v. Karl L. Oberg, 1994; and Breyer concurring in BMW of North America, Inc., v. Ira Gore, Jr, 1996). The explicit goals of punitive damage awards are to deter and punish the defendant's conduct; thus, they are a mixture of civil and criminal law traditions. Jurors can be expected to have a variety of interpre- tations of these concepts and to exhibit considerable variability in their expression

of these conceptson monetarydamagescales.The jurors'decisionproblemis com- pounded by the lack of clear instructionson these concepts or the provisionof examplesor standardsfor awardamounts(the situationseems even less controlled

than that confrontingjurorswhen they are presentedwith criminalsentencingde- cisions;Brown,1996;Luginbuhl,1992;Wiener,Pritchard,& Weston,1995).Justice Stevens writing a majorityopinion commented on the Court'sprimaryconcern about punitive damage awards: "The problem that concerns us ... is that a jury

dict"(HondaMotorCo. v. Oberg,1994,p. 2341).A series of relevantdecisionshas

tual tests to determinewhen awardsare excessive(mostnotablyPacificMutualLife v.Haslip,[1991;BMWof NorthAmericanv. Gore,1996;HondaMotorCo. v. Oberg,

policy has yet emerged.

In recent writtenopinions,the Courthas focused on proceduralissues con- cerningthe extent to which the trialjury'sdecisionadheresto rationalor consti- tutional principles of due process. Do jurors and juries consider the legally

conditionsandfactorswhentheydetermineliabilityfor punitivedamages prescribed

and set awards?Are unwarrantedor excessiveverdictscommon?Canjuryinstruc-

tions be designedthat will properlyconstrainand guidejury decisions?

The present researchis designed to study the jury'sdecision of whether a defendant has engaged in maliciousor recklessconduct that would warrantthe

considerationof a punitivedamageaward.We have selected the punitivedamages awarddecisionto studybecause it is controversialand there is some evidencethat

judgmentsby jurorsand by higherauthorities(i.e., appellatecourts)are discrepant (Finkel, 1995; Robinson & Darley, 1995). But our primarygoal is to sketch an initial pictureof the juror and jury cognitiveand social processeswhen makinga typicalserious civil decision.

We study the behaviorof jury-eligiblecitizensmakingdecisionsin realistic,

in studiesof jurors'decisionprocessesand in providingaccurateprojectionsto the outcomes of real jury trials (see Bray and Kerr, 1979, Hastie, Penrod, and Pen- nington,1983,and MacCoun,1989for explicationand defense of the method).We should note two differencesbetween our methods and the proceduresin actual trials:First,our mockjurorsdid not firstdecide on compensatorydamagesawards before decidingon punitivedamages,as they usuallywould in trials that involve punitivedamages.Second,our case materialswere veridicalsummariesof the evidence from the originaltrialswrittenin an expositoryformat,not in the form of a mock trial with judge, attorney,and witness speakingroles (see example case materialsin the Appendix).

The four stimuluscases were based on cases that had been subjectedto judicialreview,so we can assess the extentto whichour mockjurors'verdictsmatch

the legally endorsedverdicts.Second,there are manysuggestionsthat civiljurors' verdictsare more predictablethan criminaljurors'from characteristicssuch as in-

Table 1. DemographicCharacteristicsof the Participants Sex

45%men

55%women

Age

Median= 47 years(range:25-73) Race/ethnicity

70%White(EuropeanAmerican) 15%AfricanAmerican

12%Hispanic

3% AsianAmerican,NativeAmerican,and other

Income(annualfamily) Median= $40,000(approx.)

(6% less than $15,000;10%over $75,000) Education

Mode = high schooldiploma+ vocational (1% no high schooldiploma;

23%college degreeplusvocationalor professional)

jurors predict their verdicts? Are there any general predictors that exceed the 10% "variance accounted for" in verdicts that is usually observed in studies of criminal

jury decisions (Hastie, et al., 1983; Penrod, 1979)? Third, we will examine jurors' self-reported reasons for their verdicts and the contents of their discussions in deliberation to shed light on their mental and social decision processes. Because we have the conclusions from judicial reviews, we will attempt to identify the differences in processes that discriminate between juror decisions that are consistent and inconsistent with the decisions of judges.

METHODS

Participants

Participants, jury-eligible adult citizens, were sampled from the Denver area by a marketing research firm and paid $50 for participation in the study. The par- ticipants were sampled representatively by residential address and contacted by mail. Approximately 85% of those contacted agreed to participate in the study of

"lifestyles and opinions." A final sample of 726 deliberating mock jurors was ob- tained with the compositional statistics summarized in Table 1.

Materials

Four legally significant cases that required jurors to distinguish between neg- ligent and reckless conduct were selected as the basis for stimulus materials (An- derson v. WhittakerCorp., 1987; Harper v. Zapata Off-Shore Co., 1983; Jardel Co. Inc., v. Hughes, 1987; and In re Marine Sulphur Queen, 1972). These cases were selected because they represented a variety of fact situations, because they are fre- quently cited as precedents, and because the proper action on the issue of punitive damages had been decided as a matter of law by trial or appellate court review of

instructionson the tapewerethe lawandthattheyshouldadhereto themin making

they were given 10 min to studythe writtenscriptand to take handwrittennotes.

in the decisionon a 6-pointscale labeledfrom"50%,No idea I amjust guessing,"

mockjuries and went to conferenceroomsto deliberate.Theywere providedwith a copy of the judge'sinstructionsand remindedthat the judge had instructedthem to select a presidingjurorand that theirverdictmust be unanimous.Their deliberationswere videotaped,withtheirknowledgeand permission(one videotapewas lost due to an equipmentmalfunctionandthatjuryis excludedfromcontentanaly- ses of the deliberationprocess).They completeddeliberation,with a verdictor by declaringtheir jury deadlocked.(Four of the 121 juries were unable to reach a conclusionafter 2 hr of deliberation,but did not declarethemselvesdeadlocked.

as "Hung"in our analyses.)After concludingdeliberation,jurorswere asked to

reasonsfor their judgments,and tested their memoriesfor informationfrom the judge's instructions(copies of the originalinstructionswere not availableat this

Table3 providesa summaryof the individualverdictpreferencesmeasured before and after deliberation.The 95%confidenceintervalson the proportionsof

4 presentsthe groupjuryverdicts.The best estimateof the ratesat whichthe mock juries rendered,"Yes,liable for punitivedamages,"verdictsis based on the pro-

ing undecidedjuries.The assumptionis that undecidedjurieswould tend to split

accordingto the proportionrepresentedby verdict-renderingjuriesor, shouldthe cases be retried,decide at the rate estimatedby the otherverdict-renderingjuries.

dicts with the "undecided"verdictsexcludedfrom the totals. The rate at which individualsand juries favored"Yes"verdictsis far above zero for all cases; over

rates were over 50% for three of the four cases. Recall that, in each case, a trial

courtor appellatereviewconcludedthatthe factsdidnot warranta findingof reckless or maliciousconduct.

RelationsbetweenIndividualDifferencesand VerdictPreferences

Simple correlationcoefficients were used to explore relationshipsbetween

factorssuch as participants'sex, age, education,income, and comprebackground

cance testswere calculatedandthep < .01 levelwas appliedto select relationships for furtherconsideration.No effortwas made to correctfor multipletests to esti- mate "true"family-wideprobabilities(e.g., a Bonferroniinequalityadjustment;

no attemptto "inflate"the numberof significantrelationshipsreportedis intended.

("no"the defendantwas not liable,codedas "1"and "Yes"the defendantwas liable

naryleastsquaresmodelswe usedin ouranalysesHowever,. followingNeter,Wasserman, and Kutner(1983, p. 361) we believe that there is little to be gained (and

likelierto decide "Not liable."Effectsof the individualdifferencefactorof ethnic

or raceweredifficultto assessbecauseof the smallsampleof non-White background

jurors.Rather than attemptingto make fine distinctionsamongracialcategories,

(e.g., "Whatis the legal definitionof 'recklessor callous disregardfor the rights of others?'[If you cannot rememberthe legal terms,try to state this definitionin

your own words]").Writtenresponsesto these questionswere "scored"based on accuracyof recall of nine elements or legal distinctionsfrom the instructionsTwo. researchassistantswere trainedto code the responsesin terms of lenient criteria in which recall of the gist of each element was scored correctif paraphrasespre- servedthe approximatemeaningof the originalinstructionThese. scoreswere converted to a percent correctmetricwith possiblescores rangingfrom 0% to 100%

codes for 48 double-codedquestionnaires(r = +.86); for the 48 questionnaires, 90% of the paired scoreswere within5% of one anotherfor the two coders.

The median score was 5% correct (the mean was 9%); 30% of the participants receiveda score of 0 correctand the highscorewas 67%correct.These low scores

cannot be attributedto nonresponsesdue to low motivationto complywith the decisiontask;therewere almostno blankresponseformsand the 0 comprehension scores were usually assigned to lengthy,but incorrectresponses.A simple word

a range of from 0 words to 167 words;there were only 16 jurors(2%) whose re- sponses were blank (0 words); and the median numberof wordswrittenwas 43

also performedandthe resultssupportedthe correlationcoefficientsummariesFor.

F(3, 705) = 54.98,p < .001, with all coefficientsand the constantsignificantat

case (r = -.21, p < .01;r = -.23, p < .01 for the simpleunweightedverdictpref-

better able to comprehendand recall the instructionswere also likelierto decide "not liable."

The PresidingJuror Role

There was a tendencyfor the jurorselected to presideover deliberationsto possess "dominant"social characteristics:the presidingjurorwas more likelyto be male (r = -.19, p < .01) and to be bettereducated(r = +.13,p < .01).Exploratory regressionanalyseswere also performedand the resultssupportedthe correlation