Gideon, at A Public Defender posts about Lying lies and the jurors that tell them.  As anyone who reads Simple Justice regularly is well aware, I’m a huge fan of Anne Read at Deliberations, but despite the breadth and scope of Anne’s writing on voir dire, Gideon hits the bottom line. 

Despite our best efforts, bag of tricks, open-ended questions and insight, jurors still lie.  Granted, most lie to get off the jury, in the hopes they will be cut lose and not have to come back again in their natural life.  But some lie about how they feel.  Indeed, some have an ax to grind and, if they have to be on a jury, would just as soon be on yours to have an opportunity to right some perceived wrong.

This is the trial lawyer’s nightmare, or at least one of them.  It’s like having a saboteur in the case, a hidden time bomb waiting to go off.  No matter what happens at trial, how good or bad the evidence turns out to be, this juror is absolutely determined to sink you because, well, because that’s his goal in the jury room.  And you don’t know it, and can’t do anything to stop it.

Granted, my experience is that the vast majority of jurors take their role very seriously and try very hard to be fair and neutral.  They may fall a little shot of that goal, for reason unrelated to their intent.  They may have hidden bias that we failed ferret out.  But they mean well.  That’s not who we’re talking about here.

This is about the juror, like a refugee from a Scott Turow novel, who believes that it is his duty to manipulate the law because the law is bad, wrong, evil.   He is going to rid society of a perceived plague.  No stinkin’ evidence, nor instruction from that “activist judge, will move him.  What to do?

We’ve heard the stories of jurors who are “caught” after deliberations having violated the court’s instructions.  These situations make the news because they are so rare.  For the most part, we will never hear from a juror again once the trial is over.  The occasional note, perhaps, but no shocking accusations or admissions of impropriety.

The law protects the integrity of the jury verdict from the post-hoc attack of the lawyer.  There are sound public policy reasons for this, and I have no doubt that there are lawyers, a lot of lawyers, who would readily go after juror after juror to dig up some dirt on what happened in the jury room in order to undo a losing verdict.  These citizens, who have done their duty and served with honor and integrity, deserve to be protected from the sharks and go on with their lives unmolested. 

Further, the finality of verdicts would be perpetually undermined if it was so conditional that a body of law developed to make it subject to wholesale scrutiny of the jury’s deliberations.  Nothing would ever be over.  As much as that is good for the loser, consider what that means for the winner?  It would bring additional disrepute on a system that is held in less than high esteem, and with good reason.

So what’s the answer?  How do we detect the lying juror?  I don’t know.  As the length and scope of voir dire continues to diminish in most cases, other than the high profile and death penalty cases, we are constrained to be more efficient and effective in our questioning.  But we run the risk of failing to ask that one question that might show some glimmer of a problem.  Or of failing to note the response that should make that red light go off that we have a problem, and then follow up on it.

With all the brilliant minds here, perhaps an answer is out there somewhere?  Let me know.