Jurors Have Questions

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.

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.

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 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:

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.

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.

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.

7 thoughts on “Jurors Have Questions

  1. Lurker

    As the saying goes, “Jury consists of 12 persons too stupi to avoid jury duty.” On the other hand, this means that the persons who wish, for personal reasons, avoid jury duty, can avoid it. Of course, not everyone wiggles out of jury duty for personal convenience, but I would claim that most persons for whom personal comfort matters the most, do so.

    As a result, you get a bunch of persons who are more or less willing to do the right thing, as they see it. (Of course, there is always a fraction of people who would enjoy freeing the guilty or convicting the innocent, but that cannot be avoided.)

  2. SHG

    A curious aspect of the good will of potential jurors is that those who tend to be overtly favorable to the defense are usually the first to admit they can’t be fair, and are therefore stricken for cause. I don’t know why this happens, but it does. And those who are biased for the prosecution neither think they are biased nor respond to the judge’s question as to whether they feel there is any reason they can’t serve. Go figure.

  3. Nick

    My personal theory is that defendant friendly jurors are the ones who see the flaws, not just in the state, but in most things, including themselves.
    They understand they are not perfect, and they are good jurors because they do not expect our clients to be perfect.

    Prosecution friendly jurors are very black and white and see themselves on the side of white. They see no flaws in themselves. I think they answer the question honestly, much like most racists don’t think they are lying when they say they aren’t racist. After all he has a black friend who is one of the good ones.

  4. Chris Ryan

    Let me start by saying that there are plenty of us smart laymen who just don’t get served for jury duty. In the last two years my wife has been called three times and yet I haven’t been called in close to twenty years.

    I agree wholeheartedly with Nick’s theory as I have seen this rear its head a lot in our community lately.

    I will say though that most people I know who don’t want to be on jury duty find it very easy to get out by making comments showing prosecutorial bias rather then defense bias.

    But here I sit, still waiting for my summons.

  5. SHG

    I don’t believe Nick is suggesting that people who are inclined toward the defense say so to avoid jury duty. They say so to be honest. The ones who want to get out of jury duty, and claim prosecutorial bias, present a separate issue.  That leaves the ones who are happy to be on jury duty and have a prosecutorial bias on the panel.

  6. Chris Ryan

    I totally agree here. I mentioned the bias used to get out of jury duty because I find it interesting that no one I know has used a defense bias to get out of jury duty. This would lead to in unscientific belief that defense bias coming out tends to be honest feelings, whereas those expressing prosecutor bias tend to be dishonest. If you have a prosecutor bias and want to be on the jury, you tend to know that expressing said bias would get you removed, thus negating your attempt to “help” your side.

    As is always the case, there are exceptions and little hard data, just the observations of people.

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