In case you don’t care to read the article linked above, it details some interviews with jurors from the Widmer trial (husband allegedly drown his wife). Jurors made comments such as “evidence to us didn’t prove innocence” and the fact that the defendant didn’t testify was “bad,” seemingly indicating that the jurors disregarded instructions that the burden of proof is with the prosecution and that the defendant’s decision not to testify should not influence their verdict. The attorneys in the case gave examples of these instructions during voir dire or opening and, I would presume, again at closing, so what happened?
There are three options:
1. The jurors had in their minds, based on prior knowledge about the case and/or the story they constructed for themselves during trial, that the defendant was guilty. If our gut reaction tells us something, we often make up rational excuses to justify our feelings. So, it may be that the fact that the defendant did not testify had actually nothing to do with their decisions, but that it seemed in their rational and conscious minds to be one way to justify their unconscious leanings.
2. The attorneys did not carry the burden of proof throughout the trial. It is very hard to get jurors to recognize that the defendant must prove nothing. The more the attorneys could have had other witnesses remind jurors of this and armed jurors during closing for some of those comments (such as “he didn’t prove his innocence”), the better chance they would have had at preventing a verdict based on those issues.
3. The jurors simply decided to nullify the law. In some states, this is legal, but whether legal or not, it happens all the time. It is very hard for jurors to follow a law they see as archaic and wrong. There are ways to guard against this, but at the end of the day, there will always be jurors who want to nullify.
Imagine a conversation with a significant other. You want to spend money on a big television and they want to putting the money in savings. They approach you as follows: “Honey, you’re being ridiculous! The economy is in the toilet and you want to go spend money frivolously? How can you possibly make that uninsightful of a decision?!” Chances are, you will become even more entrenched in your decision to buy a television. Their judgmental approach hits a button and turns you off to seeing any rationale on their side. Suppose instead, they approached you in a more open, subtle manner: “Honey, I know the television is important to you. I will support whatever decision you make, but please consider the importance of savings and how that might help us later.” Much different tone and probably a much different result.
Jurors are like anyone else: They do not like being told what to do or how to feel – and ESPECIALLY not from plaintiff’s counsel. People who come to opinions on their own hold to those opinions much more adamantly than people who have been told what their opinions should be. If the defendant was being reckless, tell jurors the plain facts and let them decide that the plaintiff was reckless. They will be much more angry about it if they notice it than if you point it out with condescension in your voice.
When you conduct voir dire, make jurors feel welcome to voice their opinions. Explain that diversity is what makes this country great – the diversity of religious beliefs, political beliefs, etc. Tell them that you will not judge them on what they believe, you just want to have a good and honest discussion. When you get to opening, state the rules and facts of the case. Do not put in any adjectives or adverbs. Let the jurors fill those in for themselves. As you examine witnesses, keep a calm and neutral tone. Your job is to show jurors the facts and let those facts anger them. In closing, tell jurors that they are the ones who get to decide how important this rule violation is. If they feel it is an important rule, then their verdict should reflect that. If they think the rule is unimportant, then their verdict should speak to that instead. Give them the choice, let them feel free to make a decision.
When I was growing up, my father would always say, “Let your conscience be your guide.” I hate it, but it always forced me to look inside myself to come to the same decision I knew he would have preferred (the right and noble one). Let the jurors follow their consciences. You are the messenger to give them enough data on which to base their decision.
You may have heard of the “CSI Effect.” It is a more recent phenomenon that is so named because it is caused in good part by television shows such as CSI and Law & Order. Jurors often coming into the courtroom with inaccurate expectations about how trials work, the way cases are presented, and what attorneys are expected to present to prove a case. These shows depict trial as exciting, succinct, and full of drama. They also tend to have defining moments whereby all doubt is erased by one central piece of evidence. As a result, jurors have a tendency to overestimate the availability of technical, scientific evidence and hold it against you if you do not have it. They have come to expect presentation of DNA evidence, computer records, and other types of exacting and conclusive evidence at trial. In reality, we all know this kind of technical evidence is rarely available. When a case is so clear-cut, there is no need for a jury trial.
This effect has been seen for some time now in criminal cases due to the advent of fingerprint evidence and DNA evidence. Now, however, the CSI Effect is showing up in civil cases as well where such technical proof is even harder to come by:
- For example, in a case concerning violations of an equal pay statute, jurors in a focus group got stuck on why the government doesn’t have copies of who sent what emails to whom and what was said in them. The jurors assumed that there are always copies somewhere of computer files that can be presented to conclusively tell the true story. One of the jurors even reasoned that because the FBI can take computer hard drives that have been blown up and reconstruct them to find terrorists, there must be a way they could find email files in this case. The fact that the evidence wasn’t presented meant to this juror that the government didn’t want the jurors to see it. This shows the great overestimation of jurors of the availability of such hard evidence.
There are ways to deal with the CSI Effect in trial.
It is worthwhile to address jurors’ expectations about proof in the case at the outset either in jury selection or in opening statements (or both). Since jurors expect some kind of conclusive or technical evidence in even the least technical cases, do not pass up the opportunity to speak with jurors about their expectations in any case, regardless of how much science is involved. Jurors’ grandiose ideas about proof in a case can be tackled head on by telling jurors that television shows often depict trials in a certain way and that they should know what to expect in a real trial. It can be explained that an absence of proof does not mean that the evidence does not exist and that jurors should not be waiting for that one piece of conclusive information that will make the case clear; if the case were that clear, it would have been settled outside the courtroom. The jurors are there because there are conflicting stories and conflicting evidence and it’s their job to sort through the confusion and ambiguity. By telling jurors that they won’t be hearing the type of evidence that television shows such as CSI would lead them to expect, some of those expectations can be dispelled and they will not wait around for the exciting “aha” moment.