Who’s In Charge? Lawyers on Juries

Anne Reed brings us yet another great piece about lawyers in the jury room.  As Anne jokingly calls it, “News Flash.”  But it’s an obvious problem that we need to confront.  In my last trial, the full panel of 45 had more than a dozen lawyers.  Some old, some young.  One a senior partner in a Biglaw firm.  One a renown defense attorney. What a motley crew.

As my mind slowly came to grips with this, I immediately understood the problem.  Even though the judge instructs the jury, there are a lot of questions.  Lawyers will know the answers, and because we are such a friendly, helpful bunch, will illuminate the instructions.

Second, lawyers are trained to follow a logical train of thought.  Note that I say trained, not necessarily any good at it.  But when they speak, their flow will carry some weight with the other jurors.  They can’t help it.

Third, lawyers tend to be more biased than anyone else I’ve ever met.  This is particularly true when they have a captive audience to whom they can pontificate about their views of crime, criminal justice, death penalty, etc.  And lawyers do so love to pontificate.

Thus, by allowing a lawyer on my jury, I must presume that I am entrusting my client fate to one person, who will then bring the others around to his point of view regardless of whether that’s his intention.  Laypeople defer: “You’re the lawyer, is he guilty or not?”

But that’s the easy part, recognizing the problem.  The hard part is trying to figure out whether the lawyer is with me or against me.  Before anyone suggests the obvious, I can always use my peremptory challenges to get all the lawyers off the jury, but that eats up most of my challenges and I am still left with all the ordinary juror issues and bias. 

And so we voir dire the panel.  Like that helps.  They know what to say.  If they want off, it’s obvious.  If they don’t, they are going to look like the most reasonable people on earth, free of any prejudice and 110% interested in pristine justice.  Spare me.

   Q.  Mr. Smith, if you had to give the benefit of the doubt to one side or the other, which would it be?

   A.  It would have to be for the defendant, since the People have the burden of proof beyond a reasonable doubt.  If they fail to meet that burden, I would have no choice but to acquit.  That’s the law.

(Actual Q & A from P.I. lawyer whose wife was a prosecutor)

So we resort to our own obvious lawyer prejudices in deciding who is the most evil lawyer on the panel.  Personal Injury lawyers hate criminal defendants.  Gone.  Biglaw is establishment. Gone.  Young lawyers just finished school, and may still remember Con Law and Crim Law.  Maybe.

But of course, there’s also the particular circumstances of the case, and the defense strategy, to factor into the equation.  If the prosecution’s case is an appeal to the stupid, then we want smart people on our jury.  A lawyer might qualify.  But if they have strong evidence, particularly evidence that requires an attention span of more than 12 seconds, the lawyer may be able to follow.  Maybe.

For the record, I was going to challenge the Biglaw senior partner, but the prosecution beat me to it.  As he was told to go, he left the box, gave me a big wink and a thumb’s up.  I was floored.  So much for conventional wisdom.

So we clearly know the problem, and the problem is very real for any lawyer who tries cases.  But we are no closer to a solution with lawyers than with understanding the hearts and minds of any juror.  Any ideas?

5 thoughts on “Who’s In Charge? Lawyers on Juries

  1. Anne Reed

    I do have ideas, and I should have put them in the post! I put some in a follow-up today. I’ll leave it to your Texas correspondents to point out that 12 lawyers out of 45 jurors might be a reason to reconsider New York.

  2. Michelle Kallick

    I would outlaw jury trials. I just came off as a juror on a rape and gross sexual imposition case. It supposedly happened 12-13 years ago between the father and son. I felt the prosecution had not proven their case and it was a jury of 8 men and 4 women and I was outnumbered. I was physically threated as well as advised the defendant knew me and would come after my children. I agreed only to save my life and protect my children. So we found the defendant guilty of gross sexual imposition and not guilty of rape. So now I sit with guilt because I could not stand up to eight men who were going to physically harm me and I may have sent a innocent man to prison. I have no faith in the justice system or the jury system. It seemed to me the jury system is not fair because the one person who may be right about a defendant could be the right one but you never know because juries are based on bullies.

  3. SHG

    Michelle,

    That is an extraordinary story.  No one should have to be subject to such treatment.  I wish I could think of something positive and uplifting to say in response, but I’m afraid that I can’t.  You fulfilled your responsibility as a citizen, only to be repaid with threats and guilt.  That’s an outrage.

    SHG

  4. GuyllFyre

    “Any ideas?” He asks.
    Yes. Stop making so many laws that keep criminalizing our citizens, stop suing people just to get money, and get rid of as many lawyers and laws as possible.

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