One of the mantras of the defense at trial is that it only takes one to hang a jury. The assumption is that the one juror, the brave, bold soul who will stand up to the others, will be on our side. This is not necessarily the case, as Matthew Ness learned in the aftermath of his defense of Jerry Chai.
A California man convicted last month of having improper sexual contact with a Seton Hill University coed wants a new trial, contending that a juror used personal knowledge as part of the deliberations.
Defense attorney Matthew Ness said his client, Jerry Chai, 27, was wrongly convicted of a misdemeanor count of indecent assault after a juror convinced other panel members to issue the guilty verdict based on information that was not part of the evidence in the case.
The underlying allegations are routine:
Chai, who was a first-year medical student at the Lake Erie College of Osteopathic Medicine at Seton Hill, testified his accuser initially was the aggressor and consented to some sexual activity and that he ultimately complied when she later asked him to stop.
At best, this would be a “he said/she said” case, which would be nearly impossible to satisfy the burden of proof in the absence of additional evidence. The consequences for a first-year med student are obviously severe.
One of the instructions given the jury is to base its decision, whatever that may be, solely on the evidence presented at trial. That includes the facts as well as any expert opinion. On the other hand, jurors are told they bring their own experiences into deliberations as well.
In evaluating the evidence and the issues presented, you should use your common sense, knowledge, and experience, just as you would in making decisions in your daily life. When I speak of “knowledge” and “experience” in this context, I mean the sort of knowledge and experience that an average person would acquire in life.
But what if a juror possesses, or believes they possess, “special” knowledge beyond that of other jurors?
If you have such a special expertise, and if it relates to some material issue in this case, it would be wrong for you to rely on that special expertise to inject into your deliberations either a fact that is not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special expertise. The reason it would be wrong to do so is that you must decide this case only on the evidence presented to you in this courtroom.
At Chai’s trial, one juror stood apart from the others, and convinced the other jurors that she possessed special knowledge.
In court documents filed Tuesday, Ness said three jurors approached defense lawyers at the completion of the June trial in Westmoreland County and claimed another juror said she worked with rape victims and was able to convince the panel that the 18-year-old accuser was truthful when she testified about being sexually assaulted by Chai.
While the specifics of what this juror told the others are unknown, it would be fair to infer that she provided the litany of rhetorical explanations for evidentiary gaps and failures used to rationalize away the accuser’s testimony. No matter what testimony is proffered, there is an explanation for why it proves it’s true, all part of the “survivor must be believed” frame.
These are advocacy arguments, which would be acceptable to the extent they were presented by the lawyers on summation, and were not presented as if there was any empirical truth to them in the absence of an expert witness, duly admitted to testify under the relevant standard of expertise. In this way, one side can argue why a witness’ inability to recall details shows veracity, while the other can dispute it. Neither can claim that its view is more empirically accurate than the other. They’re just arguments.
But when a juror can claim special expertise as a product of her occupation, and present arguments with the gloss of fact based upon her special expertise, there is no way to prevent it from happening or distorting deliberations. Such a claim can poison the jury and there’s nothing that can be done to stop it.
So how did a rape counselor end up on a jury in a rape case?
The defense contends that juror was not honest during questioning from attorneys during the jury selection process, saying she worked for a mental health agency but not disclosing that she worked with rape victims, Ness said.
To call the juror dishonest is not entirely accurate. The juror revealed that she worked for a mental health agency, and there is nothing to suggest that’s untrue. The next question on voir dire should have been, “what do you do there?” Without that question, and a dishonest answer, it’s hard to blame her for being disingenuous by omission.
On the other hand, potential jurors are also asked whether there is any reason why they can’t be fair, and the failure to alert the court and counsel to the fact that she was a rape counselor who was indoctrinated in the ways of believing the victim and the myriad excuses for why failure of evidence proves guilt just as readily as good evidence.
Going forward, however, the problem raised here may well not have the “rape counselor” hook, but nonetheless be just as real. As college students are compelled to take classes that include indoctrination of the prevalent theories of sexual assault on campus, they bring with them beliefs and, perhaps, certainty that they must “believe the survivors” and that there is an inherent excuse for every evidentiary failure.
Weeding the prejudiced from the jury won’t be as simple as ascertaining their specific occupation, or even trusting them to admit their bias. They don’t see it as bias at all, but their version of truth. It may become impossible to get a jury in the future that is willing to decide the case based on the evidence presented at trial, as their experience leaves no possibility but conviction.