Guest post by Josh Haby:
When I received my jury summons a month or so ago, I was elated. But the feeling was brief, as I quickly concluded my service would likely end as quickly as it would begin. I’m a Litigation Consultant, I work for a law firm, I studied Psychology and Law, and my dissertation focuses on the effects of voir dire techniques on juror disclosures – there’s no way I’m getting on a jury, right?
Imagine my surprise when, after the better part of a Monday of “jury selection” involving a juror questionnaire, an apparent copier meltdown, sequestered questioning, and brief oral voir dire, I was seated along with 12 of my peers. The case, a criminal matter, was fairly straightforward. After openings, four witnesses, jury instructions, closings and deliberations, my service concluded midday Wednesday – comparable to some mock trials.
My service was short. Perhaps that is why I didn’t initially feel there were many opportunities to “test” my messaging chops on a criminal matter. Despite the length, my service was insightful and I’d like to focus this post on a few observations, recommendations, and key takeaways any attorney preparing for trial (criminal or civil) should consider… at least from a juror’s perspective.
- Avoid vague questions in voir dire. Prevailing views of jurors suggest they are reluctant to answer questions in voir dire. That wasn’t necessarily my experience. Most jurors didn’t necessarily want to speak in the presence of others, which is not surprising given most people are shy about public speaking. However, when jurors were called upon, I observed true efforts to answer the attorney-posed questions in voir dire. Unfortunately, those questions were fairly vague and often left jurors struggling to respond – not because they were unsure of what they wanted to say, but because they were unsure of what the attorneys were asking. Questions like “what else would you need to see to decide X?” or “could you find the Defendant guilty if Y?” are unfair to ask jurors – not just because they lack clear parameters and clarity but they also invite rampant speculation. Did it “get jurors talking?” Sure, but without any knowledge of the law, the case, or the rules of evidence leaving most jurors stuck searching for a response. This position invites guessing, or perhaps even more concerning, calling upon the only legal knowledge most people have: TV shows and movies – which set an unrealistic expectation (CSI effect anyone?). If you’re going to ask prospective jurors to evaluate a “hypothetical scenario” give them parameters or be prepared to help them. Jurors don’t know what they don’t know, so that’s on the questioning attorney to set them up for success. Other resources on practical voir dire strategies are readily available.
- Whenever possible, empower your jury. As someone who has spent copious time studying the variations in voir dire and trial practices, I really appreciated the juror notebook I received. It provided an overview of the criminal trial process, a glossary of key legal terms, pages for notes, forms for asking questions, and, of course, where to get lunch. The opportunity to take notes and ask questions of the attorneys and witnesses stood in stark contrast to my expectations. Such expansive techniques aligned with the expansive voir dire procedures the judge employed (case-specific questionnaire, sequestered questioning of sensitive topics, predominately attorney-led voir dire; see Hans & Jehle, 2003, for a discussion of voir dire techniques). It is likely the jurisdiction (Denver) has adopted more progressive procedures overall, but I also suspect our judge was highly conscientious of jurors’ experience. The lesson here is, from my humble juror perspective, legal actors should seek opportunities to provide jurors with materials that will aid in their service. Attorneys, that means asking the court about their procedures and making motions for expanded techniques (e.g., questioning, notetaking) where that is not common. Judges and legal decisionmakers, consider this a call for openness to such practices. Such efforts may add a few minutes to the overall trial, but they encourage juror engagement and may help preempt confusion during deliberations (see 4, below).
- Remember the power of a clear and consistent story. In my case, the Prosecution’s story was obvious: there was a clear (and consistent) victim, an opportunity, and, despite insinuations by the Defense, a clear perpetrator. Every point the Prosecution hit reiterated these facts. In contrast, the Defense’s narrative was unclear – a point the jury coalesced on in deliberations. Simply put, we struggled to identify the Defense’s story. Leaving jurors wondering “were they saying X or Y happened?” is a clear sign of trouble. While the Defense’s storytelling abilities were somewhat limited (because, as is traditional, the Defendant didn’t testify), that didn’t diminish jurors’ need for a cohesive story. For the Defense, in particular, it is important to differentiate between the Plaintiff/Prosecution’s burden of proof and the Defense’s burden of a story. Conflating the two can leave a jury with more reasonable doubt about your point than about your client.
- Streamline your case but close the gaps. We heard from the victim, we heard stories that corroborated the victim’s story, and we heard from law enforcement (albeit briefly). I’ll admit I expected more evidence – perhaps further evidence of the pervasiveness of the CSI effect. And a post-deliberation conversation with the Prosecution suggested there was more evidence. But the Prosecution made the decision to trim the fat – cut witnesses who would merely reiterate the same story or who might substantiate the narrative but risk confusing the jury. Ultimately, the Prosecution’s decision to streamline their case worked to their benefit. But it was clear those decisions also left gaps for the jury – points we focused on in our deliberations. “They mentioned a forensic interview, why didn’t we hear more about that?” Did our jury speculate? Of course. We almost had to, given the gaps we collectively identified, but it was encouraging to see the jurors identifying that speculation and reining it (and each other) in. That might not always be the case; we often observe that when mock juries encounter information gaps, speculation follows… and not all juries are able to self-police. So, when preparing for trial take a moment to step back and look for places where clarity gaps may arise. Consider it a form of “issue spotting.” Preempt those gaps by explaining, as specifically as the court will allow, why jurors might not hear specific information. Does the case really turn on a few key pieces of evidence even though more evidence exists? Tell them that. In my experience, jurors will always want more evidence. I suspect even the most exhaustive trial would not scratch this itch for jurors convinced a ‘smoking gun’ exists. But tactfully using openings or closings to let jurors know why they are (or aren’t) hearing certain information will inevitably help jurors focus on the information you’ve identified as most important.
- Use demonstratives to stick the landing. You don’t need a fancy graphics team or consultant (ahem…) to convey your trial message. And that was the instance in this case – the Prosecution used simple slides (text only, basic animations) to hit key points and reiterate their case. They summarized the key evidence, tied testimony together, and mapped that evidence onto the charge. By doing so, they lessened the cognitive lift of the jury. Of note, few of my peers seemed to take notes throughout the trial, so it is possible the Prosecution’s restatement of the case was even more effective. So, use your precious closing time to 1) hit the high points, 2) summarize the crucial evidence, 3) tie the evidence to the elements of the charge, and with your remaining time, 4) show jurors how all of those pieces come together.
Overall, I found my experience fairly expeditious and rewarding – not only because I fulfilled my civic duty, but because I was able to put my juror hat on and see into the “black box” of jury decision making. I came away encouraged – that during a time when our country feels most divided, twelve strangers can still come together and respect each other.
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Other Posts on the Trial Experience for Jurors:
- Follow Nine Rules for Post-Trial Juror Interviews
- See It Through the Jury’s Eyes: A Trial Consultant Does Jury Duty
- Expect a (Mostly) Willing Jury
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Hans, V. P., & Jehle, A. (2003). Avoid bald men and people with green socks-other ways to improve the voir dire process in jury selection. Chi.-Kent L. Rev., 78, 1179. https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3426&context=cklawreview