Jury consultant Harry Plotkin offers up some sounds advice for a troubling situation in his tip of the month. The problem is that today’s venire ain’t what it used to be.
Ten years ago, Generations X and Y were a growing minority of the jury pool. According to data from the 2007 census, they make up 52% of the jury pool nationwide, and that number is growing every year. Think about their numbers and their expectations. More than 50% of today’s jury pool was 15 or younger when CNN Headline News began presenting the news 24 hours a day, every 30 minutes. 30% of today’s jurors were 15 or younger when CERN released the World Wide Web in 1991. 22% of today’s jurors were 15 or younger when online dial-up to the internet became available and 17 or younger when cell phones became widespread. The younger jurors just entering the jury pool were just ten years old when text messaging became widespread and iTunes allowed users to immediately download music.
Let’s be clear about what this means. These aren’t job applicants, or emerging lawyers, but the “peers” to whom we try our cases. Like it or not, they are here and sitting on our juries. While under other circumstances we can fight the Slackoisie mentality, it’s both impossible and insane to try to change the basic attitudes of our jurors; they are not ours to mold, but ours to persuade.
And their expectations of a trial are different. They are easily bored and intolerant of presentations that don’t get to the point.
What matters most, more than ever these days, is that you keep your jurors engaged in the trial and focused on the things you want them focused on. Jurors try their best, but they won’t pay attention to everything you present to them in a trial, and they’ll remember even less by the end of the trial. So your jurors’ attention spans are limited, their memories are limited, and–perhaps most importantly–their patience is limited, and that’s the main focus of this month’s tip.
If you thought the MTV generation was difficult, the computer generation is worse. At least the former watched whatever video appeared on the screen. The latter has Youtube, and believes that they are entitled to be in constant control of their environment and experience. They are not inclined to tolerate sitting quietly while a lawyer spoon feeds them. They know better.
So what should you do differently? First, never present your case in an entirely spoken format–jurors don’t listen to the radio much these days, they expect to see things, and they learn as much visually as they do aurally. Jurors expect to see your case–documents, emails, maps, schematics, photos, or whatever you’re talking about. You don’t have to wow the jury with a high-tech presentation, but jurors want to see, not just hear, your case. If you’re talking about a car accident or an eminent domain dispute or a machine in a product liability or patent case, make sure to SHOW the jurors a traffic map of the lanes and roads, or a property map with boundaries, or a schematic of the machine, immediately. Once you start discussing and describing something that your jurors want to visualize, you’ll frustrate and confuse your jurors if you wait before showing them a picture. Anticipate what the jurors want to see, because once the jurors want or expect to see something and don’t get to, they’ll become very frustrated and lose focus.
This presents a significant problem for criminal defense. Rarely do we have visual exhibits to offer, as it’s the prosecution that has to make its case and has evidence to fabricate and offer. We have no obligation to put on a case, and, indeed, typically have no case to put on. We can use the prosecution’s documents, exhibits, etc., but then we have no control over what they create and offer, and, more importantly, don’t want to highlight their exhibits which tend to be bad for our clients. After all, that’s the point of the prosecution, to prove guilt.
In short, we’ve got a bunch of jurors who expect us to show them something, and we’ve got nothing to show. While we focus our efforts on cross-examination, picking apart the testimony of the prosecution’s witnesses, it’s just boring noise to these jurors. They want us to put on a show for them or they will grow bored and lose interest. And they want the trial over in an hour so they can check their emails, text messages and twitter.
Even if we have some visuals to offer, we have the problem of getting them before the jury. We need a witness, and unlike the prosecution, don’t have a bunch of cops at our disposal to use. We might be able to call an expert, but are frequently rebuffed in those attempts as being unnecessary given the jury’s scope of knowledge, even assuming that our clients can afford to pay the witness. It’s a stretch at best.
While not addressed, Plotkin’s views suggest that these jurors will not be satisfied with an instruction by the court that the defendant has no obligation to testify, and that they cannot draw any inference from his remaining silent. While we have long known that jurors want to hear defendants take the stand and deny they did it, these jurors may well be totally incapable of processing the judge’s words and unwilling to accept the notion that a person who doesn’t want to be convicted would fail to testify. They want to see the defendant deny his guilt, and won’t accept anything less.
And if that’s not problematic enough, Plotkin takes it farther:
Aside from how quickly they demand information, Generation X and Y jurors are generally more cynical than older jurors. They grew up in a world with lawsuits, corporate scandals, and written contracts for every agreement instead of handshakes and trust. They’re not necessarily more prone to favoring plaintiffs or defendants, but they tend to be more critical of plaintiffs, less trusting of defendants, and tend to have higher expectations of what the litigants “should have done” better.
While this cynicism cuts both ways, the defendant will be the one left without any showing to satisfy their demand for evidence. If they come into court cynical, then there is little expectation that they will honor the presumption of innocence or the burden of proof. They will sit back and demand that both sides satisfy their curiosity, and do it on their terms.
Harry Plotkin makes some important points about the changing dynamic of the jury pool, and how the expectations and demands of the digital world are changing the way jurors think. Unfortunately, this bodes poorly for the criminal defense lawyer, as we have very little to offer to counter their demands.
If Plotkin is right, and I suspect he is, our mastery of words may not be sufficient as our jury pools grow younger and demands grow higher. It may do well to include a class in tap-dancing in the law school curriculum, because that may be the only show we’re able to put on.