I’ve done this long enough to know two truths about juries:
1) Juries want to do the right thing
2) Juries have a very difficult job.
Those two truths affect a lot of what I do as an attorney. Today’s post is about why a jury’s job is so tough, how wanting to do the right thing can get a juror into trouble, and what I do in trial to make their job easier and help ensure the jury returns a verdict in my client’s favor.
The jury process is relatively simply. 6 or 12 citizens from the same county as the defendant are convened to listen to both sides of a case to determine whether the prosecutor met their burden of proof. Easy enough.
The juror process is a lot more complex. The process of selecting a jury, called voir dire, is fairly time-consuming and intense, but that’s a post for another time. Even once a jury is chosen, the time-consuming and intense stuff continues into the trial itself.
Our jury process makes some presumptions that are almost certainly false. The biggest presumptions are that jurors come into the process as blank slates, that they have no preconceived notions about certain witnesses, and they have no previous knowledge about the law.
These witness preconceptions are obviously untrue. I will always ask potential jurors about their thoughts on police, and I will always get some response that shows their needle is definitely not on “neutral.” Some people are married to police or were saved from a crime by a police officer, their views on the police as a whole are positive. Other people have been falsely arrested by police or have been the victim of profiling. Their views are negative. And obviously, many people have preconceived notions of people who are charged with crimes, i.e. defendants. Addressing those preconceived notions is one part of my job.
But the legal knowledge jurors bring with them can be just as problematic. To explain why, I need to explain the trial timeline.
Why a juror’s job is tough
After the voir dire, a final jury is empanelled. The judge formally reads the name of the defendant and what they’re charged with. Then opening statements begin. Anyone see a problem with that?
The judge doesn’t explain to the jury what that charge means. The elements of the crime, what the jury actually needs to examine, aren’t discussed until the end of the trial. That’s a problem because most laypeople do not have any idea what the technical definitions of most crimes are.
Sure if someone is charged with theft or murder an average juror will have a general idea on what that means. What about Cyberstalking? Or Unlawful Recreational Fishing in the First Degree? Or something like Assault, which means completely different things in different states? (Washington’s Assault is like many other states’ Battery. Battery is a crime we don’t have at all.)
The point is, jurors are told to pay careful attention to determine the fate of a defendant, and they’re not even told what they’re supposed to be looking for. At the very end of the trial, right before closing arguments, the judge reads the jury instructions. These instructions actually break down the crime into its elements and tell the jury what they need to do. Unfortunately, by that point all the testimony has concluded.
This structure is partially a relic of historical inertia but also remains in place for some good reasons. Without knowing what’s legally important, jurors will purportedly pay attention to everything. And sometimes the charges will change during a trial. For example, a person could be charged with two crimes but one might be dismissed for lack of evidence at the end of the prosecution’s case. Being too rigid about a jury’s job could cause that jury to ignore other evidence.
How jurors get in trouble
Another big rule in jury trials is that the law comes from the judge. The lawyers don’t get to say what the law is and the witnesses really don’t get to say what the law is. The lawyers discuss jury instructions in private but it’s the judge who determines and reads the final version to the jury. If a judge says the defendant must be found guilty of burglary because he quacked like a duck on Tuesday, that’s what the law is (that one may get reversed on appeal though).
Similarly the judge decides what evidence comes in. If a lawyer objects, the judge decides whether that evidence comes in or is too flawed to present. For example, a judge could decide a defendant’s criminal record is too prejudicial to be admitted. The judge makes that call and all the parties abide by it.
Where jurors get in trouble is when they start doing independent research on the law and the evidence. For example, this article talks about a judge threatening to jail a potential juror because the juror did research on a defendant.
In this age of Wikipedia and smart phones, jurors all over the world are getting in trouble for independent research, from visiting the scene of a crime to independent research to researching a defense before it was presented to looking up a defendant’s criminal history. These links are drop in the bucket of an internet chock full of stories of jurors derailing a trial.
As I said, I understand it. Jurors want to do the right thing and they’re just not given critical information until the end of the case. And sometimes they will never get the information they want. But the consequences of their independent research are real. Some of the jurors go to jail or pay fines, and some don’t. But in all cases the lawyers, witnesses, and defendants have to suffer through another attempt to complete a trial.
What the lawyers can do to help
Once a lawyer recognizes jurors’ desire to help and sense of powerlessness, the lawyer’s task is straightforward. The lawyer should strive to give a juror as much information as possible so a juror can feel informed and so a juror feels like he or she can do the best job possible.
This does not mean that the prosecutor or I can explain the law. Again that is the sole province of the judge. What I can do is weave the facts with what I know the law to be to construct a story to help jurors both see the relevant facts, and later apply it to the law. I’ll give an example.
Cyberstalking essentially makes it a crime to send explicit or threatening emails to someone. The key for cyberstalking is that the emails must be sent with the intent to harass, intimidate, torment or embarrass the recipient. So if my case is about a jilted lover sending explicit emails to an ex, I could talk about sending sexually charged emails with the intent to reawaken those once-present feelings.
I’d talk about misconstruing intent in a relationship. I won’t talk about intent as an element of the crime. Rather I’ll tell a story the jury will know about from personal experience. The story is related to the crime and they’ll remember it when it comes to deliberate. Hopefully the story tells them what they need to know to best apply the law, when they learn what it is. Who knows whether that would work of course, but the jury will definitely have a story with relevant info to draw from.
As I wrote last time when I talked about connecting with a jury I make it a point to not waste their time. I try to impress on them that if I’m eliciting testimony on a subject, that subject is worth paying attention to. If I’ve built credibility, the jury will appreciate the focus when the case gets tied together. And I let them know the best way they can serve justice is to hold the prosecution’s feet to the fire, have an ironclad case before they charge someone with a crime, and come back with a verdict of Not Guilty.
There are other things too. I acknowledge how tough their job is. I empathize with their frustrations at not knowing everything. Sometimes I spin that into frustration for the prosecution for bringing a case before they were ready.
I know my clients think about the prosecutor and judge a lot when they’re charged with a crime. I think about them, too, but my mind is always on the jury because they’re the only people whose opinion will ultimately matter. Even when I win a trial, I look for information to better serve my next client’s needs. If you’re charged with a crime and you want a lawyer that’s focused on that Not Guilty verdict, feel free to give me a call.