I confess. I used to not trust juries. In fact, I did not believe in the jury system. And even though I tried cases to juries, I did not believe in the very people whom I was trying to convince. Honestly, and it pains me to even write this, I thought that most jurors were basically incapable of understanding the law, and didn’t care much either.
But I changed my mind after I sat on a jury in Saint Louis, Missouri. Much to my surprise (and secret delight), I was selected to sit on a jury in a criminal case in the city. It was an assault case that turned on a question of self-defense.
The trial took three days. The last day, while we waited for closing arguments, we sat in the jury room and discussed civil rights. That same week was the week that the Ferguson riots started — just a few miles to the north of the courthouse. I stayed silent and observed the feelings these jurors had about civil rights, civic duty and justice. After closing arguments, we deliberated for two hours before returning a not guilty verdict.
Those three days, and especially those two hours, completely reversed my views on juries. It wasn’t the juries who didn’t understand; it was me! I hadn’t understood the jurors. I learned at least a dozen important things about juries and jury trials in those three days. Here are three.
Jurors take their duties very seriously.
One of the most important lessons I learned is that you can trust jurors to take their job seriously. The people who stayed through voir dire did so, in part, because they are honest people who care about civic duty. They chose not to lie or come up with some excuse for why they couldn’t do the job. They chose to turn up, sit there, and answer voir dire questions honestly. They chose to participate.
No one likes jury duty (except clandestine trial lawyers). It is a hardship for people to miss work. The compensation is essentially nothing. Jury duty is boring. Procedures that result in the jury waiting is confusing to them; they have to sit around wondering when they will be called back into the courtroom and what is going to happen next. The chairs are uncomfortable. The jurors are hot, or cold, or sleepy, or cramped, and they can’t even get a cup of coffee.
And what is the thanks for sitting quietly for days in a proceeding that feels like watching the DMV process new drivers? Jurors are asked to make a decision about someone’s life, liberty or property — a decision that has serious, meaningful consequences to the people involved. And that is a burden.
So who would do this? It is the people with enough integrity to not lie or make excuses during voir dire. These are the same people who pay their taxes, do their jobs, and take part in society just because you are supposed to. For that reason alone, I learned I could trust the jury. On a Monday morning, each one of those people was honest for honesty’s own sake. And on Wednesday afternoon, I saw during deliberations that they cared about doing the right thing and they participated.
Lawyers lack empathy for the jury.
As I already said, jury duty is boring. Sadly, the trial is also boring. As jurors, you sit there, feeling mostly ignored. The judge occasionally explains things. But no one looks at you or engages you. Most things are not explained at all. Most of the time, you feel like your time is getting wasted.
Worse, though, is that the lawyers then ask the jury to make a hard decision without much empathy for how that decision-making process affects them. For example, in the criminal case I sat on, we had to decide whether to send a man to jail, which would financially devastate him and deprive his children of a father. We had to decide whether to take away the most precious thing a human being has: their freedom. On the other hand, the victim (a loaded moniker, but I digress) had been injured badly enough that she was in the hospital. She was brave enough to face her assailant in a court of law. Would it be justice to let him go free? What about her physical and emotional well-being?
So as a juror, you feel like wallpaper. Then suddenly, the lawyers ask you to make a very difficult decision about someone else’s life. You have to judge people you do not know, aided only by jury instructions that are incomprehensible to non-lawyers. And the lawyers had no empathy for how that decision would affect the juror. They demonstrated no understanding of what the juror was feeling as an observer to the trial and as someone asked to judge a stranger.
Once I spent a trial in the jury’s shoes, I could see a thousand ways to improve my presentation. But one in particular stands out to me: cross-examination. The prosecutor in my case was very sarcastic during cross-examination of the defendant. That biting cross is what we all think we should do. But the jury hated it. I hated it. Why? Because we did not know the defendant very well, but we did know he was a human being whose fate we had to decide.
In this particular case, the defense attorney failed to humanize the defendant. But that did not matter. We recognized him as human already. And because we recognized him as a human being, we felt sorry for the decision we would have to make about him. We felt sorry for the judgment we would have to make. The prosecutor’s sarcasm just made him more human and had the opposite effect of what she intended.
What I learned is that the lawyer cannot show anger and expect the jury to put anger on like a dress. If the jurors do not feel anger, scathing attacks at cross are going to make the jury dislike the lawyer for being a bully. You have to cross-examine by focusing on the witness, the facts and the motivations of the witness. You can show the jury the truth about someone with the facts. Let the jury decide to be angry for themselves. Attacking someone who is still human to the jury is counterproductive. And it happens solely because as attorneys, we have no empathy for the jury, so we do not realize that it feels bad to judge someone harshly.
Jurors read the jury instructions because they are looking to justify the decision they already feel is right. They are tools used to reach a particular result.
It is obvious already that juries are not fact-finding robots who flawlessly apply the facts to the law that they are given in the instructions. What they talk about in the jury room has more to do with what they feel is fair based on common notions in our culture and in our humanity. And they do bring in their outside life experiences to interpret the evidence.
In my one experience, the jurors sought to figure out the facts first. They sought to find the truth of what happened. Indeed, the concept of the burden of proof did not come up until the end. They had to admit to themselves first that they could not figure out what happened on the issue of self-defense; and that is when they looked to the jury instructions to justify an acquittal. (And since the instruction was filled with an absurd repetition of the word “reasonable,” it was more frustrating than helpful at first.)
I used to walk the jurors through the jury instructions as the core organization for my closing. Now I will help them see the truth of what happened first. I will tell them the overall story and ask them for justice. And then, only after doing that, will I point out the key parts of the instructions that they can use as tools to get to justice. Juries are not robots who apply facts to law; they want to know the truth and they want to find justice. Jury instructions are just one of many tools that they will use to get to the result they already feel when they walk back into that deliberation room.
Sitting on a jury was a fascinating and invaluable experience for me as a trial lawyer. It reminded me of something true but often forgotten: jurors are people.
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