11. Scratch the juror's itch - the defender's role in creating a fair deliberative process by encouraging group discussion
"Okay, first we have to elect a foreperson. Then we take a vote."
Mock trial jurors on many occasions
Considerable opinion shifts take place as a result of juror deliberations
before a first vote is taken.
[Authors Note: I have been called for service but never selected to serve on a jury. What I know about actual jury deliberations is based on reading research papers, talking to fellow lawyers and judges, prosecuting and defending state and federal cases, and listening to anecdotal reports from those who have served on juries. This alone hardly qualifies me to voice a meaningful opinion on the subject of what goes on during jury deliberations. Yet I feel that what I say in this brief article is essentially accurate. Why? Because, as an instructor of criminal trial advocacy for over over four decades, I have observed first-hand over two-hundred and fifty live jury deliberations in mock criminal trials. Ray Moses]
Lay decision-makers need some help with the structure of their deliberations - Our nation's attention seems constantly directed to a criminal case du jour. Some cases have media value because of who is on trial, e.g., O.J. to Ken Lay. Other cases garner attention because of the nature or enormity of the crime, e.g., Rodney King L.A. beating to Tim McVeigh's bombing of the federal building in Oklahoma City. As verdict time draws near, we are treated to a "jury watch" clock on the top of the screen and a barrage of television palaver by pundits, ex-prosecutors, defense lawyers and retired judges who opine on what the jury is thinking and what it will decide. Interwoven in the media coverage is he implication that unless the jurors arrives at a "proper" verdict they will be pilloried and branded and nincompoops. Very little public attention is given to what the job of being a good decision-maker requires, i.e., skill in critical listening, ability to accurately assess the credibility of witnesses, perceptiveness in sifting and analyzing the evidence to determine the facts, aptitude in comprehending the applicable law and applying it to the facts, facility in communicating, and affability in interpersonal dynamics. Unfortunately, the same may be true when prosecutors and defenders craft their jury argument. We don't think enough about what we can do to guide our jurors in the deliberative process.
The typical trial jury is a collection of ordinary people with no special training, expertise or social standing. None of the jurors applied for the position. Few of them will have had previous opportunity in their lives to develop interactive, collaborative decision-making skills. Without rules or guidance as to how to approach their task, the power over the group during deliberations is left to those who seize. All too often, the person who grabs for power or seizes it is the same person who, in other contexts will be the first to say, "Get the rope!" Like sheep looking for someone to guide the flock, a goodly portion of jurors will tend to follow the person who assumes leadership, and not always in the right direction.
The purpose of this discussion is to suggest that jury argument offers you the opportunity to assist your jurors by suggesting the approach they may want to take to the deliberative process. The goal of the suggested approach in argument is individually empower each juror by suggesting a model that the jurors can use to structure the way they go about making crucial decisions.
What goes on in the jury room when your jury retires to deliberate? Since eavesdropping is officially prohibited and efforts by bona fide researchers to videotape deliberations have traditionally been frowned upon, most of what we know about the structure of the deliberation process is either anecdotal or based on out-of-court experiments by behavioral scientists. What we do know for sure is that jurors make choices as they go through the decision-making process. Though for a conviction or an acquittal there is requirement in most jurisdictions of unanimity, a less than unanimous verdict will typically result in a mistrial. Consequently, the defense will generally profit from a jury composed of people who recognize their power to act as individuals rather than as members of a "lock-step" coterie. For this reason, it may be best in jury argument for the defender to treat the jurors in argument as independent individuals rather than as members of a group whose purpose is to arrive at a unanimous verdict.
Craft some helpful suggestions - The typical juror wants to be fair and do justice. Recognizing that behavior is determined by consequences, we often spend time in argument trying to elevate and idealize the jurors, impressing them with the enormity of their role and the value of their service to the effectiveness of the democratic process. See Samples II. But we drop the ball when we fail to give them guidance in how to structure their approach to decision-making. Most jurors need this guidance and assurance. So don't just elevate and inspire them. Help them organize for judging.
Your suggestions about how they might deliberate must be straightforward and evenhanded. Present them in a modest, even-tempered manner, emphasizing your sincere hope that the structure you suggest will assist them in doing justice individually as well as collectively. Let them know that you believe each of them is a person of integrity and good judgment who takes his of her vote seriously. Here's a sample of such an argument:
- (Five qualities of fair deliberations) - You are each fair-minded people of integrity. I know that you want to be fair. Let me suggest this to you. If your discussion is to be fair, it should have five qualities. First, it should be impartial. Second, after hearing all the evidence, the court's instruction, and statements of the lawyers, each juror should go into that jury room with a fairly good idea of what his or her vote is going to be, Third, your discussions should be based on common sense and reasoning. Fourth, you should do your utmost to listen to what the other jurors think. Fifth, the person selected to be the foreperson should understand that his or her role is to make sure that the discussions are democratic with everyone getting the right to speak.
Help jurors make correct choices - Let's consider six of the choices that jurors make and how you may be able to influence those choices by what you say during the argument phase of the trial.
Jury Choice One: To Select a Foreperson - From the standpoint of group dynamics, the foreperson of the jury had disproportionate power and control over decision-making. The foreperson, as group leader, presides over the deliberations. In effect, s/he becomes chairman of the board, often deciding who will be given the floor and, by power of interruption, for how long. The foreperson may also decide when notes will be sent to the court and may compose any such notes. Additionally, the foreperson may decide when there has been enough discussion or a topic, when a new topic should be discussed, when votes will be taken, the form of a vote, e.g., by a show of hands or by secret ballot, etc. Methods of determining who will be the foreperson vary from jurisdiction to jurisdiction, e.g., the judge may select the foreperson, the jurors may chose one of their number as foreperson by selection or election, the first juror to enter the jury box may automatically become the foreperson. The judge will inform the jurors which method is used. In jurisdictions where the foreperson is selected or elected by the jurors, you may want to suggest a model for the selection/election process. If the jurors are left to their own devices, they may nominate and select the first person, particularly if standing while the others are seated, who says, "We've got to pick a foreperson," the person who seats him/herself at the head of the rectangular table (It's usually rectangular, rather than round as it should be to promote equal and face-to-face discussion.), the person who volunteers by self-nomination, or the person who has been given the single copy of the jury instructions by the court bailiff who acts as jury shepherd. [Note: Be aware of the pro-prosecution ploy of having the bailiff nominate the jury foreperson by giving the court's jury charge to a juror the bailiff, a courtroom law enforcement officer who has observed the trial, deems to be leaning toward the prosecution. Defenders should prevent this unfairness by moving (1) the court to order that the official copy of the instructions be placed in the center of the jury table before the jurors enter the deliberation room. Another alternative is to ask that each juror be given a copy of the court's instructions, preferably at the jury instruction stage of the case.]
If we assume that the defense model will want to underscore the equal power of each individual juror, a secret ballot for foreperson, or perhaps better yet, a purely random selection of a name out of a hat, is typically most compatible with a selection process emphasizing individuality of the jurors.
One way of diluting the power of the foreperson and making the equalizing the voting power is to make certain that each juror has a copy of the court's instructions. In some jurisdictions, e.g., MA, the jurors are not given a copy of the court's instructions. [This seems like an idiotic policy if we expect the jurors to apply the facts to the applicable law, but that discussion is for another day.] In jurisdictions where the jurors are given a written copy of the court's instructions, judges often provide only one copy. My observations of mock trial juries has revealed that in closely contested cases there will often be a discussion of the applicable law of crimes and defenses as jurors struggle to understand the legal definitions and apply them to the facts. If there is only one copy of the jury instructions and it is in possession of the foreperson, what will often happen is that the other jurors will look to the foreperson as the arbiter of law. They will ask legal questions and the foreperson will consult the instructions and provide an answer. Often, the answer will be a filtered, short-hand rendition. Sometimes the rest of the jurors will accept the foreperson's explanation of the law without asking to look at the instructions. How do you prevent this from happening? Move the court to provide a copy of the instructions for each juror for use at both the instruction and deliberation strange. The jurors can read along with the judge and advocates, and each will be equally armed with the applicable law during deliberations.
- (Selecting a foreperson) The leadership role on this jury is very important. If you decide to vote for a foreperson, consider this. What are the qualities you would want in a discussion leader? Isn't it the kind of person who will facilitate everyone having the equal opportunity to talk and certainly not all at once. Isn't it the kind of person who will respect each juror's individual opinion, not the kind of person who will try to dominate those who don't go along with his or her view. The foreperson's job is not to persuade or dictate, but rather to patiently guide the discussion in an evenhanded way.
- (Avoiding a snap decision in selecting a foreperson) Sometimes it might be tempting to make a snap decision as to who will be foreperson of your jury. The job is an important one that deserves some thought. I ask only that you to take a few minutes and think about it before you decide. Please don't automatically select the first person to say, "We've got to elect a foreperson." And don't automatically select the person who sits at the head of the table or the person who talks the most. Choose the person who will allow everyone a fair say as you go through the evidence and the person who will let everyone express his or her thoughts during your deliberations.
Jury Choice Two: To Fairly Structure the Mode of Deliberations - Offer the jurors an approach to their deliberations. With no expertise or experience in the art of judging, they may be surprisingly receptive. You may even want to suggest where they should start their analysis of the evidence. Typically, you will profit from full and imaginative discussion from both the linear thinkers (those whose knowledge is logically derived from inductive and deductive thinking) and from intuitive thinkers (those whose knowledge is gained without evident rational reasoned thought and inference). For example, the linear thinkers on your jury may be inclined to sift through the evidence piece by piece looking for rational connections; whereas, the intuitive thinker may analyze a case around the question of whom (including lawyers, parties, and witnesses) s/he likes, trusts and respects. People with different modes of thinking will sometimes reach different conclusions. This may benefit the side that is comfortable with a hung jury.
Suggest that when the jurors first begin to deliberate on the evidence that they may find it useful to make a list of questions that they might have about the case. You might suggest that each juror be allowed to make his/her own list. You might even provide the jurors with a visual list of questions that could serve as a starting point for their own list. [Be aware; if you provide a list of questions you are suggesting a substantive agenda rather than an approach. It's okay, just more substantive than procedural.]
In watching many mock trial jury deliberations, I have noticed that if the jury is given no direction as to the process of deliberating, more often than not they will take a vote before discussing the case at all. In other words, juries with guidance can be expected to put the cart before the horse, i.e., voting on the guilt issue before they deliberate. When jurors commit themselves so early in the process, their minds seem to close. It becomes difficult for them to abandon the position they have staked out. How do you keep this from happening? Suggest to the jurors that before they start a group discussion they allow each of their number to speak briefly in turn without interruption about the things in case that s/he think needs discussing. Suggest that the foreperson keep a list of these discussion points. Point out that it would be fair to discuss all the issues in the case thoroughly before anyone is asked to commit himself or herself to a position on whether the defendant is guilty or not and before any vote is taken.
- (Let each juror first speak without interruption and then discuss the evidence before taking a vote) The way you conduct your deliberation is, of course, a matter entirely within your discretion. However, I would plead with you not to go back there and take a vote before you even deliberate and talk about the evidence. I would also hope that before you begin to discuss this case as a group, you start with the person on the right of the foreperson and rapidly go around the table allowing each juror to speak in turn without interruption and allowing each juror to indicate what that juror thinks the discussion points should be. The foreperson could keep a list of those talking points for when you begin your group discussion. And again I hope that you will discuss the evidence with one another before you take a vote.
- (Evidence driven deliberation vis a vis verdict-driven deliberation) There is a name given to the type of deliberation I am suggesting you use. It's called evidence-driven deliberation. It means that each piece of evidence, and by evidence I mean the testimony from witnesses and the exhibits, be examined and analyzed for its significance. That means that, without choosing up sides, as a group you sift through the evidence and analyze it There's another type of deliberation known as verdict-driven deliberation. That way of looking at a case is a sort of confrontational approach to deliberation that aims to identify the members in the minority and then have the members of the majority convince them to change their minds. So in effect you start off by voting before you ever deliberate and then the people in the majority cajole and coax the people in the minority trying to bring them into line. The concentration is on getting everybody to agree to a verdict rather than on focusing on a discussion of the evidence. I suggest to you that the "my way of the highway" approach leads to a partisan debate rather than a group inquiry.
If you are a defender, you typically want decisions in the jury room to be made as democratically as possible. So suggest to your jurors that all votes be done by secret ballot rather than by a show of hands or, even worse, going around the table sequentially. The reason for the secret ballot is to recognize each individual's right to maintain his/her view without being unduly influenced by others. A secret ballot avoids the pressure to go along with the crowd.
Jurors have differences of opinion only when they perceive, store, and recollect the evidence. How can you stir the pot to be sure that the jurors not only pay attention to the evidence but also have firm individual opinions about it in deliberations. You may be able to liven-up and flesh-out the juror's discussion of the evidence and the inferences that may be drawn if you make it possible for them to take notes during the testimony. Do this by making a pretrial request by motion that the court exercise its discretion and allow juror note taking. The discussion will be elevated if each juror has concrete recollections to rely upon. Deliberations can be heated when jurors remember things differently. Of course, experience teaches us that we can't expect all the jurors to avail themselves of the opportunity to take notes.
The defense can also urge the jurors to critically examine the evidence from both sides.
- (Consider both sides - both sides of hand example) [Hold your hand up with the palm exposed and ask the jury as follows:) "What is this?" If your answer is, "It's your hand," that wouldn't be quite right. It's actually only the palm of my hand. Every hand has two sides and so does this case. I suggest to you that to truly and fairly deliberate this case you should examine both sides. Every juror should have the right, and probably the duty, to play the devil's advocate and to critically examine the evidence and the lack of it.
Jury Choice Three: To Fairly Determine Who Talks, When, and How Long Some jurors just by the nature of their personality have a tendency to "hog" the deliberation spotlight. Forceful personalities seek to dominate others. This "take charge" personality is what you need in the foxhole where action as a cohesive unit is essential. It's not what the defense typically needs in a jury where you want each juror's individual decision to be given equal weight.
Try to partially neutralize the influence of the high-pressure authoritarian personality who attempts to monopolize the deliberations. Invite and encourage every juror to actively participate in the deliberations. Advise them that every juror must be afforded a fair opportunity to express his or her views. Acknowledge that there may be some who are better talkers than others, but point out that simply because one person may be an eloquent talker and persuader does not mean that s/he is a better thinker.
Jury Choice Four: To Allow and Respect Individual Differences of Opinion and to Listen to What the Other Person Says Encourage the jurors to express differences of opinion. Tell the jurors that they should freely exchange their views. Point out that it is improper for anyone to coerce or browbeat anyone else into changing his/her views. Suggest that part of being a good juror is being willing to respect the beliefs of each other.
- (Respect difference of opinion) Respect the opinions of one another. Exchange ideas. Don't' guess. Be satisfied in your own mind and heart. If you disagree with your fellow juror, insist on your own belief, and in the same vein, respect the right of the other juror to have his own fixed belief.
Let the jurors know that there is no requirement to give up their opinion just because others ma disagree with it. Trial court judges will usually instruct juries that their verdict must be unanimous, as is true in forty-seven states (Louisiana, Oregon and Oklahoma are the exceptions.) and in federal court. (For the USSC cases on the unanimity issue, see Jury Selection) Counter the unanimity jury instruction by mentioning that although a jury has an obligation to reach a verdict if possible, no juror is ever required to give up any opinion which s/he believes is correct. Promote the jurors to visualize themselves as individual decision-makers rather than as members of a goose-stepping group whose goal is to be single-minded.
- (Stick with honest persuasion) You are obligated under your oath not to do anything that would offend your conscience. Whatever honest persuasion you have after fully discussing and deliberating this case, stick with that honest persuasion. Don't permit anyone to dissuade you away from an honest and firmly held belief in your mind and heart.
- (Right of any juror who feels s/he is being unduly pressured or coerced by others to report the duress to the trial judge) After you have fully deliberated on this case, listening to what everyone has to say, you may arrive at you individual verdict. It may also happen that after you have made up you mind, someone else on the jury who disagrees with you will exert pressure on you to change your mind. Discussion is fine, but no one on the jury has the right to coerce or pressure you to give up any opinion that you believe in your heart and mind is correct. So I suggest to you that when the time comes that you have your verdict in your heart and mind, you don't have to give up your firmly held belief because of arm-twisting from anyone else. If you have made up your mind and you feel it would be coercive upon you to continue to deliberate further, you may tell the judge by a not that you deliver to the bailiff.
- (Rights of the juror to communicate with the court) You've heard the prosecutor and me talk about the rights of the prosecution and the rights of (name the client). There are some rights that no one has spoken about. I'm referring to the rights that each of you has a juror. During the course of the deliberations something may occur that bothers you. If so, you have the right to communicate with the judge by way of a note. You don't have to share the contents of that note with anyone. You can just simply seal it, address it to His/Her Honor, and give it to the bailiff.
- (Voting booth analogy) Just as you wouldn't let some else make your decision for yo in the voting booth, neither should you allow anyone else to tell you how to decide this case. Vote your own belief, not someone else's.
Decision-making is a draining process on those who take the job seriously. The most difficult part of the task is to concentrate on what others are saying. Listening is painful. Prepare the jurors for the fatigue they may feel during deliberations. Tell them that they should agree to take rest breaks to refresh themselves. Suggest that any juror who is feeling brain fatigue or message overload should have a right to call a "time-out" to renew and reenergize.
Jury Choice Five: To Agree to Allow Disagreement It's human nature to do what we think is socially expected. Most of us want to go along with the conventions of society. We learn that It's risky to go against the flow. Many jurors have no idea what will happen if they hold out against a majority. The jury instructions are often framed in a manner that presumes that the jury will arrive at a unanimous verdict, e.g., "Once you have arrived at your verdict press the buzzer to advise the bailiff that you are agreed." Judges never tell jurors that it it is permissible not to agree on a verdict if, after good faith efforts, they are deadlocked. Indeed, in many jurisdictions judges will use the so-called "dynamite charge" or Allen charge to constrain a verdict. Holdout jurors don't know how long they will have to stay in the deliberation room if they resist strong-arm tactics by the majority. In observing over two hundred mock jury trials, I have notice that the feeling that it is somehow wrong to resist the will of a vocal majority often pressures the single (or double) holdout(s) to question their own heartfelt belief. When the holdouts lose self-confidence, they cave in.
How do you teach jurors that they are not expected to accede to the wishes of the majority? There are ways of making your holdout juror(s) comfortable with the image of doing what you want them to do, even though this action, i.e., sticking to their individual decision, is inconsistent with the will of the majority of jurors. One way of teaching the jurors that a hung jury is acceptable is to briefly allude to a previous instance in your career where a jury was unable to arrive at a verdict. Another way of paving the road for the jury is to point out that the lawyers and the judge have all had cases where the jury was unable to arrive at a verdict. If allowed, this tactic provides a follow-the-leader cushion which makes the prospect of a hung jury more legitimate to all the jurors and more palatable to your holdout juror(s).
- (All have had cases of jurors unable to agree) We've all had cases where jurors have been unable to arrive at a verdict. Sometimes it is the right thing. After full deliberation, no one should be forced or unduly coerced to surrender their true feelings about a case. The law makes room for this. We simply do it again before a different jury. No harm , no foul. There's nothing dishonorable about being unable to agree on a verdict. That's why we have courts and judges and lawyers.
You always want the jurors to agree with you, but sometimes you don't want them to agree to with one another. Suppose you, for one reason or another, are shooting for a hung jury. You can use jury argument as an opportunity to empower jurors who might otherwise feel outgunned if they are in the minority. One way to encourage a juror to dig his/her heels in and refuse to budge is to emphasize by jury argument that there is no obligation that the jury arrive at a verdict. The perfectly legitimate alternative is to decide not to decide. In this instance, you want to trigger action but not a verdict - voila - a hung jury.
Some lay jurors have no knowledge of the legal consequences of a so-called "hung jury." I have found that some first year law students erroneously believe that jeopardy attaches and bars retrial if the jury cannot agree upon a verdict. The solution is to let the jury know in argument that the criminal justice process recognizes that jurors won't always be able to agree on a verdict. Tell the jury that there is no shame in being unable to agree. That's why we have a jury of twelve (or six or whatever the number). If a unanimous verdict was always expected, we would have a jury of one. Let the jurors know that if they come to a point in the deliberations when it becomes apparent that they are deadlocked to the extent that further deliberations would be fruitless, any of them has the right to have the foreperson send a note informing the judge.
- (Making a decision the same as arriving at a verdict - baseball rainout analogy) Each of you is here to make a decision. But making a decision doesn't mean that you must agree on a verdict. The law recognizes that there will be times when jurors don't agree. It's like a baseball game that gets rained out. We just replay the game another day.
- (Minority may be right) To convict (name the defendant), your verdict must be unanimous. Each of you must wholeheartedly agree with the verdict. That means that if you are outnumbered eleven to one in the jury room, regardless of which way the majority is going, you can't say to yourself," Well, the majority must be right." Because the majority isn't always right . At one time all but a few thought the world was flat. Columbus was right and the whole world was wrong.
Jury Choice Six: To vote only when ready Tell your jurors to vote on conviction or acquittal (or punishment in jurisdictions, e.g., TX., where the jury assesses punishment) only when all are ready. If anyone wishes to continue discussion of the case, the vote should be postponed until that person is ready to vote.
- (Don't vote until ready) You never have to vote until you are ready to vote. As long as there is someone who wants to continue the discussion, let that person have his or her say. Please, postpone the ballot-taking until everyone has had his or her voice heard.
Help the jury to understand how it can most fairly perform its task. Jurors will appreciate constructive guidance. The routine lack of insight given to the jury concerning the approach it takes to the job of decision-making is more the work of custom and convention than established law or rules. Lawyers, as a group, tend not to do things because they haven't been done before. Resist the rut, guide the jury to a fair deliberative process. Take advantage in argument of your opportunity to help your jury scratch it's itch.