When I read the guest post by Peter DeFillipis over at Turk’s New York Personal Injury Law blog, it was easy to understand why a PI lawyer would want a juror to be able to ask questions. Even though the issue arose out of the Arizona prosecution of Jodi Arias, it offers a huge advantage to the plaintiff in a civil action to learn what the jurors are thinking and satisfy their concerns. After all, in a PI case, the plaintiff has the burden of proof.
But how does this translate to the defense in a criminal case? Gideon ponders the question at A Public Defender.
While the law says the burden is on the prosecution, experience says otherwise. Human nature raises questions and expects answers. To tell a jury that they should somehow react in a way that’s contrary to everything they’ve ever done in their entire lives is absurd, another exercise in judicial hubris.
The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.
On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not.
The fiction that jurors can simultaneously bring their life experiences into the courtroom while following obtuse instructions using bizarre language that demands they think in a manner that is directly contrary to every decision they’ve ever made is perhaps the greatest failing of the jury system. And for those who think jury nullification is a solution, they’ve never met a real jury. Most people who show up for jury duty would prefer to convict twice rather than nullify. Jurors aren’t nearly as radical as tin foil hat types think,.
But Gid links to a report from The Jury Expert which suggests that lawyers’ fears weren’t realized:
On the other hand, neither jurors nor lawyers felt it made the trial better for anyone. My suspicion, at least in the criminal trial, is that there is a gaping hole left unmentioned. The things jurors want to know about are the very things they can’t be told anyway. One of the key takeaways from these studies seems to be that juror questions failed to prove particularly enlightening.
According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.
Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.
Thirty years ago, my partner, Howie, summed up to a jury, after which I told him I thought his closing argument was the stupidest thing I had ever heard. Howie, who was a brilliant trial lawyer, laughed at me, punk know-it-all that I was. He informed me that no matter what evidence came in, what the real issues were, what facts mattered, the jury would decide the case for the wrong reason.
His jury came back with a not guilty verdict. It was a lesson I never forgot.
I’m as scared as Gideon of losing control of a trial to the jury, of questions that seek answers I would prefer them not to know. But what scares me far more is that they will ask questions that the court won’t allow. Regardless of what a judge or a lawyer thinks is a relevant question, the only really relevant question is what matters to the jury. It’s our own arrogance that makes us forget that they decide the defendant’s fate based on whatever they think matters. What we think matters is the real irrelevancy.
Like Gideon, I want to talk to the jurors after the verdict to find out what happened in the jury room. Most of the time, they’re gone before the judge has finished his speech to the lawyers about what a great trial he conducted, making it impossible for us to speak with them. Sometimes, however, they hang around and wait for us, because some jurors want to both let us know why they did what they did and, oddly, to ask whether their verdict was right. Everybody loves validation.
From these talks, which granted aren’t the same as empirical longitudinal study, there are two things I’ve learned. First, that jurors are far more sincere in their desire to be fair, at least as they understand the word, than anyone believes. Not always, and not every juror, but as generalizations go, jurors really try to do the right thing.
And second, Howie was right. Absolutely, totally, completely right. And if questions don’t inform lawyers of what the jury thinks is important, then they really don’t matter one way or the other, at least in a criminal trial.