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I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).

So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?

Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.

Jury instructions are long, painful, meandering and - above all - repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.

Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.

It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.

I catch myself talking to clients in legalese sometimes - and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.

Briefs are the same - wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?

Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives - and our jobs - would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.

Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try - for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?

(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)

Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…

From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.

The story cites some sort of national trend - and that voice of prosecutorial reason Joshua Marquis - in making its point.

Mike at C&F reviews a book that he recently read (and recommends), entitled “Don’t Believe Everything You Think: The 6 Basic Mistakes We Make in Thinking.” It is primarily a book about the human mind and the tricks it plays on us. Prof. Greenfield astutely reminds us all not to fall into these traps, if we are to represent our clients adequately.

I looked at it from another perspective. I think, generally speaking, as defense attorneys we are aware of these “tricks”. Some of them read just like the problems with eyewitness identification that are the subject of many papers and lots of research.

But this “list” organizes them succinctly (which, incidentally, is one of the “tricks”). If this is truly how people think, then we have just gained an insight into the minds of our jurors. We need to be aware of these “tricks” and be ready to either use them or to expose them.

Consider the following, with Mike’s summary:

Confirmation bias. People hate being told they are wrong. People love being told they are right. Consequently, people only look for data proving themselves right. Yet, in so doing, who knows what evidence we are missing proving ourselves wrong?

Anyone who is up on eyewitness id research knows about this. Witnesses reinforce their own memory and come to believe very strongly that what they saw is what they recollect. (As a side note, this is why it is imperative in eye id cases to attempt introducing the testimony of an expert.)

We are super simple Simons. Why do stock markets rise and fall? Why did your wife leave you? We have one or two sentence explanations of very complex events. In a sense, our need to oversimplify stems from the narrative fallacy and our inability to appreciate chance. Give us a show story that makes the world seem logical, and we’re sold.

Because of that, we prudently invest in mutual funds and worry about the child molester next door rather than the one in our own homes.

This, I think, can work in two ways. Find that two sentence theory of your case and you might be able to convince the jury of whatever your position is. Again, this is not new, but just further reinforcement that you want to keep it as simple as possible. One of the first things I learned about trying a case to a jury was to keep is as simple as possible - and simple to us lawyers is not the same as simple to lay jurors. Break the case into small, bite-sized pieces and feed as few of them as possible to jurors.

The other way it can work is to understand that the State’s case is usually made up of such a simplicity. A man saw the defendant hit someone. Hence, the defendant is guilty. Knowing that people lean toward such simple solutions teaches us that we need to unravel them carefully, and simply. Take each strand, one at a time and deconstruct it.

The simpler the better. See Occam’s Razor (or Bennett’s Chainsaw). I’ll have to read the book, but in the meantime feel free to jump in with your thoughts on this.

Is that sometimes you end up taking jurors you have no business taking. Like the R. Kelly trial. From media accounts:

Those jurors include an African-American woman whose husband is a Baptist pastor, a black man who identified himself as a Christian and a white executive who said he thinks Kelly is guilty.

What’s that again? A juror who has made up his mind? How can this juror possibly be seated, right? Because the law is full of legal fictions. One of these fictions is that if a juror says something extreme, he can be “rehabilitated”. (Oh, the irony.)

The white juror said he believed Kelly was guilty, but that he could give him a fair trial.

“I have two little kids,” the man said. “Child pornography is about as low as it gets.”

[Judge] Gaughan asked the man to look Kelly in the eye and promise him a fair trial.

Why do we perpetuate this nonsense? Does anyone reading this believe that this juror will “give him a fair trial”? Are we that starved for jurors that we will accept venirepersons who state that they have already decided on the guilt of the accused? Does the right to a fair trial really mean the right to the appearance of a fair trial?

I can understand the defense not pushing this too much - the judge has just created an appellate issue - but the Court should know better. In a high-profile case like this, wouldn’t you want to avoid any potential problems?

The Kwame Wells-Jordan trial in New Haven has had it all: false confessions, recanting co-defendants, a near-fight between the state’s star witness and the prosecutor, a cop who has since retired amidst scandal and expert testimony on false confessions.

In the end, it looks like the system worked. A jury returned not guilty verdicts yesterday on all counts. Wells-Jordan was charged with being an accessory to assault, robbery in the first degree and conspiracy to commit robbery. The victim, Herbert Fields, was shot dead during this robbery by another man, who plead guilty to murder.

The recantation and coercion:

But when Johnson [the co-d] testified during the Wells-Jordan trial, he recanted his police statement. Michael Holmes, who police believed was the third person involved in the robbery but was not charged, also contradicted his taped statement.

Wells-Jordan did not testify on his own behalf, but his aunt and legal guardian, Julia Sykes, testified she and her nephew underwent lengthy, high-pressure interrogations in September 2006 and two months later, the day he was arrested.

Skyes, Johnson and Holmes said [now retired, but still embroiled in scandal police officer] Willoughby told the three teenagers a lie in an effort to get them to confess: that their handprints were on Fields’ car. That handprint really belonged to [someone else].

There were two interviews between Wells-Jordan, his aunt and the police, the latter resulting in the false confession. The circumstances surrounding the confessions involved the usual “we know what’s best for you, so if you tell us you did it, you won’t be a defendant” spiel.

The expert:

Update: The decision is a must read. It comes in at a whopping 236 pages. (Yes, you read that correctly. 236 pages.) Not only is there an extensive discussion of the history of 6th Amendment jurisprudence, but there is also an extremely fascinating discussion of the Constitutionality of the federal child porn statute and whether its requirement that possession be “knowing” rather than “willful” is sufficient and whether its lack of scienter permits it to survive Constitutional scrutiny. One of the most interesting decisions I have read in a very, very long time.

Original: From SL & P, via Volokh comes this story of a federal judge in New York who reversed [pdf] a conviction after polling the jurors.

After Polizzi was convicted, Weinstein polled the jurors, asking if they would have issued the same verdict had they known the mandatory minimum sentence. Many said no, stating they felt Polizzi needed treatment, not prison time.

This led Judge Weinstein to declare a mistrial.

Weinstein wrote that he “committed a constitutional error” by not telling the jury about the sentence.

That knowledge “might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity,” the judge wrote.

In most states, like in CT, juries aren’t told of the consequences of guilty verdicts: what the mandatory-minimum sentence is, what the maximum sentence is, whether the defendant will be sentence to probation, etc.

This ruling has sparked a very interesting discussion at SL & P. S.cotus writes:

I think that Judge Jack sets the issue up in a different way. Rather than say, “Should the jury be told” I think he is asking “Should the judge set aside the verdict based on a clear statement from the jurors, on the record that they would not have convicted if they had known the consequences.” Depending on how you look at it, this is a slightly (or very) different issue.

This isn’t the first time I’ve thought about this issue and it won’t be the last. I can’t decide. My reluctance to embrace juries knowing about sentences stems from tradition, I guess. It’s just what I’ve become used to. Resistance to change or something like that.

But the benefits are obvious. With harsh sentencing and almost anything being a crime, this would be a way for the community - through the jury - to make a statement about what is and isn’t worthy of jail time and whether the sentences set out by the legislature are just and sufficient.

Sure, it reeks of jury nullification, but I don’t think nullification is illegal. It serves a purpose.

Someone at Volokh posted the following rationale:

But we’ve criminalized so much, and with such harsh sentences, that we have come pretty close to having a system in which, in many areas, prosecutors decide who goes to jail, and they make those decisions on the basis of “who is a bad guy.” So, until that changes, we ought to at least let the jury have a shot at letting some non-bad-guy defendants off lightly.

A tangent that bothers me is that a bunch of commenters are all for “full disclosure”. According to them, this would include permitting the jury to know whether the defendant has prior convictions. Seems like they’re seeking a trade-off. Something that might help a defendant for something that definitely hurt a defendant.

It’s an interesting discussion, for which I have no ready response. Thoughts from you guys?

PS: Look at the NY Post headline. Talk about tabloid…

Last year, some organization somewhere surveyed judges and lawyers from all states and determined that CT’s jury selection process took the longest: on average 10 hours for a criminal trial and 16 for civil. It then determined that S. Carolina had the fastest process: 30 minutes on average for criminal trials. I took this to be a good thing. There wasn’t much hullabaloo in the State, either. Everyone understood that getting it right takes time. We question jurors individually and, I think, rightly so (I do not want to start the blawgospheric conversation again, so Bennett and Greenfield - you have been warned. DO NOT link to this post and raise the same issues again.)

However, it seems that the American Idol disease is spreading on from the Governor. Judiciary Committee co-chair Andrew McDonald apparently heard that some jury selections in Stamford (his district) took a combined 13 weeks. They were two med mal cases and a friggin’ murder trial. The hammer hit the knee and now we have a reaction:

“It’s extraordinary,” state Sen. Andrew McDonald, D-Stamford, said of the slow system and the cost to defendants who pay their attorneys by the hour. “We need to look at ways of making our jury selection process more efficient.”

Ah, he has revealed the secret of private practice: Drag on jury selection indefinitely, so you make gobs of money. It has nothing to do with seating unbiased jurors, but everything to do with money.

But McDonald said there are ways to tweak the rule without violating the constitution or amending it again. He is not ready to offer proposals, but other attorneys and national experts did so.

Some suggest giving jury candidates more detailed questionnaires about their backgrounds or having judges take more control. Judges in Connecticut do not sit in on jury selection in civil cases. They rarely interfere with an attorney’s questioning in criminal cases, the National Association for State Courts study found last year.

More active judges might cut off attorneys who drift off topic, experts said.

“The attorneys in Connecticut may not know how to rein in their questioning,” said Paula Hannaford-Agor, director of the association’s Center for Jury Studies and an author of the recent study.

Yes. Lawyers in Connecticut are incompetent; judges are hands-off and everyone has a party when you go to jury selection. Lawyers here accept probably one juror a day.

It has absolutely nothing to do with the fact that sometimes these potential jurors say things like: “I always believe the cop” or “I think if you’re innocent of something, you should take the stand and say it”. No. That never happens.

Here’s another thing: This “10 hours to pick a jury” is an average. Not every trial takes that long; some are quick, some take a while. But the plus side is that unsuitable jurors are very rarely seated. You’d think it was something to be proud of.

National experts said Connecticut’s approach has value, though they support McDonald’s move to speed it up.

A judge in the Superior Court system in Washington, D.C., began questioning jury candidates individually in the late 1990s and found that about a third failed to volunteer important information during group questioning, Hannaford-Agor said. The judge disqualified about a quarter of that group because of an obvious prejudice, she said.

“In group settings, people just slip into a socially acceptable means of responding,” said Andrew Sheldon, a nationally known expert on jurors who heads SheldonSinrich Trial Consultants in Atlanta.

Then there’s the matter of the State Constitution, which while not having an explicit Ex Post Facto or Double Jeopardy Clause, does state (in Article 1, Section 19, for those who are interested) that “[t]he right to question each juror individually by counsel shall be inviolate.”

So it takes a little longer in our state to pick a jury. Who gives a sh*t.

Gone are the days of goons showing up at your door or horse heads in your bed. This is the digital age, baby! Web 2.0! So, it should come as no surprise that jury tampering has also moved into the digital age.

Meet Chandra Bozelko, who didn’t just ask a friend to go talk to a jury member. She downloaded software that would spoof her phone number on caller id and disguised her voice using electronic means. Clever girl, that.

Unfortunately, as with viruses and anti-virus software, if there’s something on the internet that helps you do something wrong, there’s someone somewhere that’s come up with a way to track it.

And so Ms. Bozelko was caught and is now charged with tampering with a jury. The jury that she tried to convince that she was innocent? It convicted her.

I guess if you have no faith in the criminal justice system, you do what you have to do…

You’re in on trial. The State has put on it’s main witness. Oops! They forgot to ask the most important question. You quietly mumble: “no cross!”, elated inside. Then a squeaky voice speaks up and asks that very question. Wait! Who said that?

If you’re in Florida, the answer very well might be: The Jury. After some “tweaks” in their jury system, Florida judges must now allow jurors to take notes and, in civil cases, ask questions of witness. In criminal trials, they will stick to their “old” practice of having jurors submit questions which the judge then decides whether they should be asked of the witness or not.

According to the article, these changes “follow a nationwide trend toward fuller participation by the citizen deciders of fact.” Huh? Where am I living? What nationwide trend? What other jurisdictions permit this?

It sounds cute, I know it does. Sensible, that does not make it. Take the really, really stupid hypothetical I opened this post with. That damn squeaky voiced juror just diluted the State’s burden of proof! What if it’s a leading question? Or calls for hearsay? Can you object? How does this work!? Permit me to say: Does Not Compute.

After the most comprehensive review ever of Florida’s jury system, a state committee decided the potential benefits “strongly outweigh” any potential harm. The committee, which included judges, attorneys and former jurors, said jurors should be treated as full partners, not bystanders, at trials.

This is the bizarro-world legal system. Juries are not “partners” (can we at least use less dumb terms?). In fact, we’ve got a perfectly good term for them already: Jurors.

Some local judges have allowed both practices for years. Circuit Judge Doug Baird, who hears civil cases in Pinellas County, is one of them.

“Actually, the juries come up with some pretty good questions,” he said.

Good for them, Judge Baird, but it’s not their damn job. You know what, why don’t we dispense with attorneys altogether and let the parties be subject to intense questioning by juries, who then retire to deliberate their verdict. Heck, why need a Judge? Or the rules of evidence? Or law schools (oh, sorry)?

There are limits, of course. Jurors can’t blurt out legally inappropriate questions such as, “Has the defendant been to prison before?” Instead, they write down their questions, hand them to a bailiff and wait as the judge and attorneys discuss whether a question is relevant to the case.

Right. So when the smart juror writes a question that the negligent prosecutor forgot to ask, what do we do then?

Terrible, terrible idea. Why must we tinker so?

Image license info here.

Mark Bennett’s post on the use of the phrase “failure to testify” in jury instructions, which I mentioned in this week’s Jumpstart, has spawned a vibrant discussion in the blawgosphere. Mark initially asked this question:

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant’s election not to testify — the exercise of one of the rights that we, as defenders, hold sacred — as a “failure”?

Jamie at Austin Criminal Defense followed up with his own post, Anne got involved and the Great Greenfield has his own comments on this and why defendants should or should not testify. Universally, the defense blawgers agree that this makes them cringe; that the word “failure” connotes something negative (much like the use of the word “victim“).

So, Jamie asks, what is an instruction that will pass muster? He offers:

While a defendant may choose to testify if they so wish, when the State fails to prove any element of the offense beyond a reasonable doubt, it becomes completely unnecessary for a defendant to testify. The State’s case is not any stronger just because the defendant has chosen not to testify in this particular case.

Before I offer my own, I decided to take a look at CT’s jury instruction on the defendant’s “failure” to testify. It states:

The defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant’s failure to testify.

It seems really good until that last sentence. So have there been challenges to this language? Yep, at least in CT. In State v. Casanova, 255 Conn. 581, 597-601 (2001), the Supreme Court held that ”the charge as a whole . . . was neutral in substance and appropriately guided the jury to a proper verdict,” despite the defendant’s argument that the language ”failure to testify” had a negative connotation. Id., 600.

Understanding that in CT “failure to testify” does not mean anything negative, I offer the following jury instruction in its place:

“Earlier, we talked about the burden of proof. The State bears the burden of proving - beyond a reasonable doubt - that the defendant is guilty of the charges. The defendant has the right to present evidence to rebut those charges. The defendant may choose to do so in several ways: the defendant can present testimony of other witnesses or testify himself. The defendant has an absolute right not to testify. Whether the defendant testifies or not, it does not change the State’s burden of proof one bit. The State still has to prove beyond a reasonable doubt that the defendant is guilty. If the defendant chooses to testify, you will weigh his/her testimony as you would any other witness and determine if it is credible or not. If the defendant chooses not to testify, you will simply consider the evidence presented and determine whether the State has proven guilty beyond a reasonable doubt based on that evidence alone.”

What do you guys think?

This is just a very bizarre story all around. An Illinois man filed a post-conviction motion seeking to have his conviction vacated because of juror misconduct. Charles Campbell was convicted in 1992. One of the jurors in his trial, Robert Taylor, was called to jury duty again in 2002. During voir dire in 2002, he stated that he could not be on the jury, because he still felt guilty about what he did to Campbell back in 1992.

What he did was acquiesce to the other jurors and voted for a conviction even though he felt that the State had not met its burden. He, along with two other holdouts, had caved in and convicted Campbell.

Based on this,  Campbell’s attorney filed a post-conviction motion. Taylor showed up to testify. The judge told him that he could face criminal charges for juror misconduct. Yeah, in essence, the man was threatened with prosecution. He did what any sane person would do: shut the hell up.

[Ninth Circuit Judge] Stewart then told the juror there was a possibility of criminal charges being filed against him for jury misconduct depending on his potential testimony. Stewart warned any of his testimony Tuesday may be held against him and advised him of his right to remain silent. “To me, it was not that big of deal,” Taylor said. “I was taught that right always wins. But if it is going to incriminate me, I’m not going to say anything more. Sorry.” Taylor was then dismissed.

I am the only one appalled by this? He faces criminal charges because on a jury 10 years ago he acquiesced? Should we permit this? Whither justice? I understand that we want to prevent juries being influenced or relying on information not in the record, but this? So a man, who may not have been convicted if three jurors hadn’t “given up”, cannot get testimony from the jurors.

I do not understand what the misconduct was on the part of this juror. If the rule is that juries are not permitted to call into doubt the veracity of their verdict by testimony or affidavit, then that rule needs to be re-examined. It seems to me that it serves no purpose other than to protect erroneous verdicts.

H/T: EvidenceProf

This guide is pretty short: Don’t Use Them!

A West Virginia man’s conviction has been reversed because jurors looked up the victim on MySpace.

Why is it that jurors cannot seem to follow the judge’s instruction to not conduct any independent investigations and to rely solely on evidence presented during the trial.

You’d think that in the age of technology, enough people know that to do so will taint their verdicts.

Here is an excerpt from the decision:

We are mindful that the independent investigation conducted by two of the jurors did not bear fruit, which arguably lessens the prejudicial effect, but notwithstanding that fact, the mere fact that members of a jury in a serious felony case conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted. Without meaningful censure, failure to properly punish such behavior would encourage or allow its repetition. Given the independent investigation by these jurors and the fact that another juror advised that the alleged victims’ testimony should be given more weight than that of the appellant contrary to the judge’s instructions and our law, we have no choice but to vacate the appellant’s convictions.

Juries are often likened to the black box. You know stuff goes in and you know stuff comes out. What happens inside the box, however, is a mystery. People can guess, people can opine (some make careers out of it), but you never really know how a jury is going to behave. Until one of them speaks out, that is.

This unfortunate tale comes from New York, where, after verdict, a juror spoke up and revealed that they misunderstood the judge’s instructions.

The anonymous juror contended that at least six others on the 12-member jury would have found Joseph Cammarano not guilty of gang assault if they had understood the charge properly.

Justice Robert J. Collini had instructed jurors to find Cammarano, 18, guilty of gang assault only if they determined he had stabbed 14-year-old Richard Orloski.

The juror claimed the panel mistook the charge to mean Cammarano should be found guilty of gang assault if they believed he had participated in the Dongan Hills playground melee, regardless of whether he stabbed Orloski.

“We never intended to find (Cammarano) responsible for Richard Orloski’s stabbing, period,” the juror contended.

Part of the cause of this problem is the discretion of judges to permit note taking during trials. This judge did not allow it. The jury didn’t have a written copy of his charge available during deliberations, but requested a read-back of his orders on how to apply the charge in their verdict.

Collini reread his charge on gang assault, and also repeated instructions on three additional charges.

“We had several things read back to us. It was confusing,” the juror contended, claiming that on their return to the jury room, the panelists were still unclear about how to interpret Cammarano’s role in a brawl involving 30 youths in the playground next to PS 52 on Feb. 4, 2006.

I have never understood why note-taking is not permitted during trials. With so much at stake, wouldn’t the interests of justice be best served by the jury accurately remembering the testimony? Memories are faulty, so shouldn’t we aid in their recollection by at least permitting them to take notes? What is this resistance to taking notes?

That’s not all, though. This jury exhibited the classic symptoms of a jury that just wanted to go home:

Describing the atmosphere behind closed doors as including “a lot of cursing and arguing,” the juror claimed the panel was “absolutely split down the middle” as to whether Cammarano stabbed Orloski.

After deliberations began, another member “refused to spend another day” and threatened to hang up the entire panel and force a mistrial if they had to come back on Friday, according to the anonymous juror.

While he was correctly convicted on other counts (and therefore his total exposure doesn’t change much), we still have a man who was convicted of something he shouldn’t have been. That’s unacceptable.

H/T: Indefensible

Update: Scott notes the most obvious downside of juries taking notes: They don’t pay attention to what is currently being said. I don’t think this is as big a problem as he makes it out to be - super juror and what not - and can be rectified with a simple jury instruction. The notes are to assist in recall and should be treated as such. He also points out that notes aren’t perfect and we have a system of perfect recall: reading back the testimony. Sure, that may work in some cases, where the information the jury is seeking is a large part of the case and they are constantly reminded of it. But what of something that seems minor, but could be pivotal? If they don’t have notes to remind them, how will they know what to have read back?

At the very least, the jury should have a copy of the charge.

Scott’s post today about the “loser truth” reminded me of some wise words I heard last week, which I figure I’d share. We must always remember that our truth is not the same as our client’s truth, which may or may not be the same as the jury’s truth.

We are all a product of our experiences (yes, I know there’s a raging debate) and those experiences shape our perspective of the events around us. My experiences are different than yours and, let’s be honest, those of the majority of our clients.

It is incumbent upon us to investigate the truth according to the client, no matter how foreign it seems. Dismissing outright the client’s version of the truth leads only distrust. If we investigate and find that there is nothing to corroborate the client’s version, then we can lay that out in front of the client and say: “Look, we investigated what you told us and this is why it’s complete bullshit.” At that point, one of two things might happen. The client might relent (in part, I suspect, because he will start to trust you) or he might stick to his story, in which case, a competency eval might become an option.

Or what might happen is that some pieces of the client’s story start to fall in place. Just because your experience tells you that something isn’t possible, doesn’t mean it isn’t.

The same thing with juries. More often than not, your jury will not be packed with people that have had the same experiences as your client. They will not relate and will not understand. In their world, things such as the client’s version just don’t happen. That is where we come in. As Samuel L. Jackson’s character says to Matthew McConaughey’s, prior to closing argument, in “A Time to Kill“:

Jake Tyler Brigance: It’s not me, we’re not the same, Carl Lee. The jury has to identify with the defendant. They see you, they see a yardworker; they see me, they see an attorney. I live in town, you live in the hill.
Carl Lee Hailey: Well, you are white and I’m black. See Jake, you think just like them, that’s why I picked you; you are one of them , don’t you see?. Oh, you think you ain’t because you eat in Claude’s and you are out there trying to get me off on TV talking about black and white, but the fact is you are just like all the rest of them. When you look at me, you don’t see a man, you see a black man.
Jake Tyler Brigance: Carl Lee, I’m your friend.
Carl Lee Hailey: We ain’t no friends, Jake. We are on different sides of the line, I ain’t never seen you in my part of town. I bet you don’t even know where I live. Our daughters, Jake; they ain’t never gonna play together.
Jake Tyler Brigance: What are you talking about?
Carl Lee Hailey: America is a wall and you are on the other side. How’s a black man ever going to get a fair trial with the enemy on the bench and in the jury box?. My life in white hands? You Jake, that’s how. You are my secret weapon because you are one of the bad guys. You don’t mean to be but you are. It’s how you was raised. Nigger, negro, black, African-american, no matter how you see me, you see me different, you see me like that jury sees me, you are them. Now throw out your points of law Jake. If you was on that jury, what would it take to convince you to set me free? That’s how you save my ass. That’s how you save us both.

And that’s just it. What is it about the client’s story that would convince you that he was telling the truth? That’s how you convince the jury.

Juries are mercurial, we know. Juries are like a black box, we are told. Juries usually convict on Fridays, is another belief. But juries are also comprised of people and people are impatient. People, who are on juries, have plans with their lives and jury duty presents a significant obstruction. Just take a look at this google search for “jury pressure”.

Earlier today, I was leafing through a transcript of a trial in which evidence had lasted for almost twice as long as was originally promised the jurors. Jurors had been told, during selection, that evidence would last for a few days and they would have the case “in a week, or slightly later at the most”. Now it was going on 2 and a half weeks. Jurors had plans.

They sent notes. On Thursday, right before closing arguments: “We’re worried because if our deliberation goes into next week, a lot of us are going to have problems.” and “We want to know how long this will take because we didn’t expect it to take this long and some of us have commitments.”

The judge in this particular case didn’t seem to think there was much of a problem and told them: “It will take as long as it will take. You were selected to see this through to the end. Please adjust. Thank you.”

The judge did admonish the jury that their scheduling conflicts were not to influence their decision. But is that possible? Will juror #4, who has a vacation to Bora-Bora planned for Wednesday, willingly deliberate for days and reach a legal verdict? Will juror #1, whose wife has to go back to work on Monday and has no one to watch his kids, be a thoughtful and active participant in the process?

What of the defendant? Will the defendant get a fair trial? Will the process be wholesome? Will he get shortchanged?

What can one do? Ask for a mistrial? How would you handle this situation?

Image license info here.