You can’t prepare for Forrest Gump

we the..uh..deciders..decide that..uh..what are my choices again?

One of the first things I learned as a trial lawyer was to never overestimate a jury. Jury duty is a very odd and strange thing for people to do and no one’s a professional at it, even those who are trained in the law, or who’ve served more than once. The smartest people, when they get on juries, are prone to do the stupidest things. This is a philosophy, which if you think about it, can serve you well as an attorney. If you pretend that the jurors are a bunch of barely-functional 5 year olds, then you’re forced to lay out all the facts and themes in small, simple, easy to remember pieces. It really makes the job of writing cross-examinations and closing arguments easier.

Of course, the jury is a black box. A black box of chocolates; you never know what you’re going to get. And most often you don’t. Until one of them goes and blabs to the press, that is:

Members of the jury that acquitted two NYPD officers of raping a woman in her East Village apartment told DNAinfo that despite the verdict, they believed the cops were guilty.

But they felt a lack of DNA evidence meant they had to acquit — a decision which is causing anguish for some.

“In my heart of hearts, I believe her that the officers did it,” said juror Melinda Hernandez.

Another female juror, who asked not to be named, said of former NYPD officer Kenneth Moreno: “He raped her. There is no doubt in my mind.”

Read that again. “I believe the officers did it”. “No doubt in my mind”. To those of us sitting at home, “no doubt” means “lack of doubt” which also means “beyond a reasonable doubt”. In fact, during jury selection and closing arguments, prosecutors hammer home to the jurors that they are not required to prove the elements beyond all doubt. That the standard isn’t no doubt about the defendant’s guilt, because that would be impossible.

Here, it seems, they achieved the impossible. But the impossible doesn’t account for the CSI effect and befuddled jurors.

All joking aside, this only serves to make the victim feel even worse: having to suffer through a not guilty verdict compounded by the fact that that verdict was brought about only because of a misunderstanding of the law by the jurors has to be a terrible feeling. Of course, our jurisprudence doesn’t permit retrial after acquittal, so that door’s closed on this chapter forever. For the lawyer observing this trainwreck and for tomorrow’s jurors and casual critics or champions of the criminal justice system, however, there are valuable lessons to be learned.

Just as there are cases like this, where a misunderstanding of the law results in an unwarranted acquittal, so are there cases where the same misunderstanding would lead a jury to convict an innocent man and send him to prison.

The CSI effect also seems to be well and alive, and we would be well served to remember that it can cut both ways. Sure we know that these two female jurors believed the complaining witness but “had” to acquit because of the lack of DNA evidence. What of the other 10 (or how many ever NY has on their juries)? What if they didn’t believe the woman, but might have been convinced to vote for guilt simply because DNA evidence existed?

DNA is not omniscient: it cannot tell you when it was deposited or under what circumstances. Jurors need to understand that and it’s our job as lawyers to make sure that they do.

Don’t rely on the judge’s instructions to the jury; write your own. Remember that no matter what jurors say during voir dire, they come to the courtroom with their own preconceived notions and those notions are hard to get rid of. Help them, or you’ll end up like Picard below:



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