Public Defense

KISS your jury

By Gideon

Earlier this week, Scott and I engaged in a mini-discussion of sorts about the tweaking of the format of a trial to better help jurors understand the issues and reach their decisions. The most popular analogy for the decision making process is the black box. You know what goes in, you know what comes out, but you have no clue what the hell goes on inside. In order to alleviate that a bit, I ran with the Windypundit’s idea that jurors be permitted to ask questions of lawyers during closing argument. In that post, I also wrote:

The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.

What I was referring to then, and what I hope to summarize now, is one change that I fully intend to make in my style. Juxtaposed with this latest study from the UK that 66.67% of jurors don’t understand a damn thing told to them by judges, the idea becomes clear that we’ve got to keep it simple, stupid. (and you thought I was advocating flirting with jurors. Sheesh.)

The two-year study, led by Professor Cheryl Thomas of University College London, analysed 68,000 verdicts across Crown courts in England and Wales, and also staged simulated trials.

In relation to judge’s directions – where a judge gives crucial guidance to jurors about what they have heard – the research team asked jurors at Winchester Crown Court to recall two key questions that the judge gave in a case where a defendant was charged with violence.

Only 31% of jurors accurately identified both questions, it was found.

A further 48% correctly identified one of the two questions, and a fifth did not correctly identify either question.

Researchers found a written summary of the judge’s directions on the law for jurors improved their comprehension of the law.

And by simple, I don’t mean simply picking one issue in the case to pound home (which some lawyers have made a successful career out of), but changing the way we approach cases, the way we structure every word we say when we are in front of that jury.

The legal universe is a complex and intricate one. Experienced lawyers often don’t have straightforward answers to questions. We write voluminous briefs on questions of law; we argue over the syntax of jury instructions. If we don’t get it and can’t agree on definitions and explanations and instructions, how the hell can we expect lay jurors to?

As lawyers, we become invested in our clients’ cases: we live them, we breathe them, we become them. In the heat of the trial battle, we are the client. We know (or should know) the case and the facts like they happened to us. While that’s great for preparing for trial, it’s also our biggest handicap in dealing with jurors. They don’t have that background, that intimate knowledge with every nuance and every event. They don’t know the law, they haven’t argued the motions we have and most importantly, they don’t know our strategy.

It is often said that it is clear if a 5 year old can understand it. While you run the risk of alienating a juror or two, I think there’s a lot to be gained by taking that approach with the jury. Put yourself in their position; pretend that you don’t know anything about the case and commence your examination in that fashion. Ask basic questions, dole out morsels of information at a time. Juries tune out when they see two people – you and the witness – engaged in some protracted battle over semantics and nuances. I should know. I’ve done it and failed miserably.

Wouldn’t it be better if you led them down the path you want to go, but in the manner that they would walk? The law is a complex thing and the application of the law to the facts of a case an even more daunting task. If we want juries to find that reasonable doubt, we must lay it out for them in as simple terms as possible. Forget the drama, forget the yelling, forget the feigned outrage. Keep it simple.

I’m going to try it next time I’m on trial. I’ll let you know how it goes.

Full post as published by A Public Defender on September 16, 2010 (boomark / email).