12 February 2009

Give the Jury a Torch

"Keep them in the dark, shovel a bunch of facts at them, and then tell them which parts they should have been listening for." This is the basic way every jurisdiction I know of treats juries.

We give jurors some very basic instructions at the beginning (mostly about not talking to anybody about the case until all the evidence is in) and tell them what the defendant is charged with, but we don't tell them what to look for. I know that lawyers in Virginia aren't supposed to tell the jury the law we're applying to the facts to in the voir dire or opening statements. It's the silliest rule out there because then all we can do is tell them the facts without any context. Most lawyers push the envelope on that rule because you can't possibly give the evidence without some sort of context. Still, it usually comes out "We're going to show you that Mr. Smith committed burglary through Facts A, B & C" or "They won't be able to prove Mr. Smith committed burglary because they won't be able to prove Fact B."

Jurors then sit through a trial without a solid idea of what to look for, or, worse, a semi-formed idea of what to look for based upon their own ideas of what burglary is, what they've seen on Law and Order, and what little they've gleaned from voir dire and opening arguments. Any one of these sources could mislead them. What if someone is charged with statutory burglary in Virginia? How many citizens understand the difference between burglary, robbery, and larceny? Not too many. The law picked up from Law and Order is TV'ized and based on New York law (where they suffer from crimes in multiple degree syndrome). And, who knows what they may have picked up from the unexplained voir dire and opening statements of counsel? It's not fair to the jurors to keep them in the dark like this. The only possible effect it can have is to confuse them.

What needs to be done is to read the charging instructions to the jury at the beginning of trial. Heck, give them a copy of the instructions at the beginning of the trial. And, I mean before even the voir dire. As they walk into the jury room prior to the trial, give them one sheet naming everything the defendant is charged with. Then, for each type of charge, give an instruction on the elements which must be proven. This would give the jurors a sense of focus, letting them know what they should be looking for. I'd bet dollars-to-donuts that this would help the jury immensely and I cannot see it hurting or helping either side (unless it's one of those cases wherein the defense's only hope is confusion).

Would this solve all problems? No, nothing solves all problems. Nevertheless, I think it would be a step which would greatly improve the lot of the jury in a criminal trial. Of course, there would be resistance to it. Every change in law or legal procedure is resisted, even if it's for the good. There would be all sorts of well reasoned excuses given as to why this shouldn't be done and why it wouldn't work. Scratch the surface and these are quickly revealed as "But that's not the way we've done it for the last 150 years."

Lawyers, judges, and anyone who has paid attention have had less and less faith in the jury system over the years. They make things slower, less predictable, and we constantly wonder whether jurors understand what is being presented. Well, juries are always going to be slower than a bench trial. They are always going to be less than 100% predictable (that's the point - both sides think they can persuade the jury and worry that the other side can). However, if we take this action it will be a great step in the direction of at least making sure the jury understands what is going on.

Give the jurors this torch. Let them know the instructions so that they understand what's being presented during the trial.

3 comments:

Aussie Pleader said...

Hi Ken. Nice to read the 'personal touch' posts again after quite a while (for me at least). My mob at work in the IT section have been fiddling with their admin rights and I can only now read your main posting panel, can't see your title or your links in the sidebar (except the self referential ones). Oh well, something's better than nothing.

Ken Lammers said...

Hmm . . .

They must have found some way to block images. Not sure how that's done.

David Fish said...

Your suggestion would help with juror focus.
Jurors "fill in the blanks" when they create internal narratives from disjointed and incomplete information... then forget which parts are substantiated and which parts are mental filler.
Great idea!