Practically the thing most desired by prosecutors and lawyers who are both convinced of the justice of their cause is homogeneity of some sort in the jury-box. Naturally antagonistic elements are undesirable, and a wise selector of juries will try to get men of approximately the same age, class in society, nationality, religion, and general character. Of course, this is a difficult matter, but without a friendly and helpful spirit among the jurors cases will result frequently in disagreements. This is naturally less objectionable to the defendant than to the People, for ordinarily it may be said that "two disagreements are equivalent to an acquittal."
The common idea that juries are prone to leave their decisions to chance, as by flipping a coin, or to act upon impulse, whim, caprice, or from a desire to get away, is grossly exaggerated.
It was Pope who sang in the "Rape of the Lock":
"The hungry judges soon the sentence sign,
And wretches hang, that jurymen may dine."
Unfortunately, if the jury is hungry or exhausted and anxious to dispose of the case, the defendant invariably gets the benefit of it. The "wretches" don't "hang," but instead are turned out with a rush. Instances of verdicts being determined by such considerations are in fact rare.
Much of the seeming misguidedness of juries in criminal cases is due, just as it is due in civil cases, to the idiosyncrasy, or the avowed purpose to be "agin' the government," of a single talesman. In an ideal community, no matter how many persons constituted the jury, provided the evidence was clear one way or the other, the jury would always agree, since they would all be honest and reasonable men. But just as a certain portion of our population is mentally unbalanced, anarchistic, and criminal, so will be a certain portion of our jurors. In addition to these elements there will almost invariably be found some men upon every panel who are so obstinate, conceited, and overbearing as to be totally unfit to serve, either from the point of view of the people or the defence. It is enough for one of these recalcitrant gentlemen that eleven other human beings desire something else. That settles it. They shall go his way or not at all.
The writer believes, therefore, that some allowance should be made for the single lunatic or anarchist that gets himself drawn on about every fifth jury, for if he once be empanelled a disagreement will inevitably follow. This could be accomplished by reducing the number necessary for a verdict to eleven.[38] Hundreds of juries have been "hung" by just one man.[39] The trouble, as Professor Thayer points out, began a long, long time ago in a case reported in the Book of Assizes in 1367.
"In another assize before the same justices at Northampton, the assize was sworn. They were all agreed except one, who would not agree with the eleven. They were remanded and stayed there all that day and the next, without drink or food. Then the judges asked him if he would agree with his associates, and he said never,—he would die in prison first. Whereupon they took the verdict of the eleven and ordered him to prison, and thereupon a day was given upon this verdict in the Common Bench.
... And afterwards by assent of all the justices it was declared that this was no verdict. It was therefore awarded that this panel be quashed and annulled, and that he who was in prison be enlarged, and that the plaintiff sue a new venire facias.... Note, that the justices said they ought to have taken the assize with them in a wagon until they were agreed."
How much happier would not only the eleven, but the twelfth juror, who swore he would "die first," have been if, unanimity not being required, they could comfortably have agreed to disagree and yet returned to court and rendered a verdict.