Give Jurors a Guide

February 12, 2009

Legal Department

Mark Draughn

Once again, I offer another crazy idea for reforming the justice system...

A few days ago, Shawn Matlock wrote a Top Ten list of causes of Jury Anxiety which Ken Lammers commented on yesterday. I've served on two juries, one civil and one criminal, and both of these lists seemed reasonable, but they tended to miss one of the key causes of anxiety and confusion that I had observed. I was thinking of writing a post about it, but fortunately Ken Lammers beat me to it:

"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.

That's exactly the problem I was concerned about. In both cases I served for, testimony was over in a day, so when we finally received instructions at the end, it wasn't too hard to relate it back to what we heard. But if either of these cases had been a complex trial with a week or two of testimony, it would be mind-boggling to sort it all out at the end.

Ken's solution is to explain the elements of the crime more thoroughly at the beginning:

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.

That sounds like a good idea to me. Ken calls this giving the jury a torch so they can see the way. I'm not sure I like that metaphor. I think this is more like giving the jurors a guidebook to a museum, telling them what the exhibits will be, what details to look for, and why they're important.

I'd go even further, and give the juries a guide along the way. Let the lawyers make parts of their argument to the jurors during the testimony phase. E.g. "Officer Reyes has testified that he was that he was on duty, wearing his police uniform, and driving a police car, and that he observed the defendent commit a traffic violation. Whatever else happens, I think this establishes the element of the crime that the victim was a police officer performing an official duty, and that the defendant was aware of this fact."

You could argue that this risks confusing the testimony with the lawyers' argument but I think there's a pretty good chance of that anyway under the current system. By putting the arguments right after the testimony, the jurors would have an easier time checking the argument against what the witness actually said. (Although, human memory is a strange thing.)

Besides, as I understand the process, lawyers do this all the time anyway by sneaking their arguments into the trial. They prep their witnesses to emphasize the important points, and then the re-ask the same question five different ways to drive it home for the jury. With opposing witnesses, they front-load their leading questions with massive chunks of their theory of the case. It would be more honest, simpler, and probably faster if the lawyer could just ask a simple question, listen to the answer, and then stop and turn to the jury and say something like, "That last point was really important because it shows who brought the weapon to the crime scene."

Not being a lawyer, I could easily be missing a number of reasons why this might be a bad idea. And just because it would make the jurors' job easier doesn't mean it makes for a better trial. Making the jurors' job easier is not the purpose of a trial.

Still, it seems like something worth trying. Perhaps courts could test it out in civil trials. They typically have a more flexible format than criminal trials, and lawyers often agree to shortcutting the process (e.g. stipulating to massive amounts of uncontroverted facts) to save time and money. If it works, criminal courts could give it a shot. Maybe then jurors would have a little easier time finding their way to a verdict.