A Day In The Life of A Juror
By Thomas J. Welk , Civil 10/31/1995
On November 29, 2001 I had the opportunity and the privilege to serve as a juror in a simple criminal case. As a lawyer, this experience made me much more sensitive to the experience of jurors.
Prior to Trial
As trial lawyers, the date of the trial in indelibly etched in our memories. We have, hopefully, diligently prepared our clients and our presentation of evidence. The date has been set in our schedules for months. However, the prospective juror does not know until immediately before the trial whether service will be required. In Minnehaha County, South Dakota there is a telephone system where the juror calls a telephone number each Friday evening to determine whether the panel on which they are anticipated to serve will be selected for the trial next week. Thus, it is only from Friday evening that a prospective juror in Minnehaha County is aware of when they may serve for the following week. In addition, it is not obvious as to whether the juror will actually serve as they may not be selected. This, a juror's schedule, including mine, was uncertain. Indeed, I believed, because the case was anticipated to be a criminal case and I had extensive prior experience as a prosecutor, the likelihood of serving was almost nil. Indeed, persons in my office were willing to take a pool that I would be back in the office by 10:00 a.m.
Upon arriving at the jury assembly room, all prospective jurors in Minnehaha County are shown a videotape prepared by the Unified Judicial System in South Dakota. This tape which is approximately eighteen minutes, provides good background information as to the differences between cases (civil and criminal) and the various functions of the participants at the trial as well as the jury selection process and the entire trial process. Thus, trial lawyers would do well to view the tape from the jurors' perspective. Much time can be saved during voir dire and arguments realizing that the jurors have already been informed as to the jurors' role and the trial process itself.
Prospective jurors intently listen to the videotape. Indeed, a comment was made by one of my fellow jurors that the tape had indicated that lawyers were not allowed to serve on juries. I politely informed the juror that the law in South Dakota had been changed recently to allow lawyers to serve. The comment shows, however, how keenly the jurors were listening to every statement on the videotape. The tape itself is neutral in content and provides a balanced view of the participants and the trial process.
The Nature of the Case
I participated in a driving while under the influence criminal case. The duration of the trial was only one day. The arresting officer testified as well as the employer of the defendant and the correctional officer who booked the defendant. The key item in the case was a videotape. The defendant refused a blood test, which in South Dakota has the potential consequence of losing your license for one year in an administrative hearing. The defendant did not testify.
The first question asked by the defense lawyer was whether anybody had any experience with law enforcement. I thought my prosecutorial experience would clearly disqualify me because of a perception that I would have a prosecution bias. As the result will dictate, the defense lawyer was a young, bright lawyer who assumed that I, like any other juror, would seek to follow the court's instructions and review the evidence with my fellow jurors to arrive at a verdict and not bring any of my personal biases to the courtroom.
Arguments by the Counsel
During the opening arguments, several statements were made by the defense attorney as to what the evidence would show regarding the defendant's activities from 9:30 p.m., when she left work, until she was arrested at 12:00a.m. However, the defense attorney wisely decided not to put his client on the stand. Jurors asked several times during deliberations why the defense lawyer did not produce the evidence that was promised. Other jurors during deliberation were careful to point out the court's admonition that statements of counsel were not to be considered as evidence as well as her failure to testify. As we have all learned as trial lawyers, you shouldn't promise what you can't deliver. The jurors were quick to pick up on counsel's promise that were not kept.
The arresting officer testified that the defendant was arrested because she blinked her lights at his patrol car. Many jurors were perplexed during deliberations as to whether this was an illegal act (as was I). This was the only evidence that the arresting officer had to stop the defendant.
The judge, as all trial judges, admonished the jurors not to discuss the case during any recesses. Before this experience, I did not realize how many times I have heard this admonition but how difficult it was to comply during the trial. Do we ever stop to consider as trial lawyers what one would do with twelve people you have never met and placed in a situation that you can't discuss? The conversations revolve around family, weather and life activities. Obviously, as the trial progresses there is more discussion as you begin to meet one another to determine at the breaks what they do for a living. Remember that the lawyers know the avocations of the jurors but other jurors do not. One doesn't know the life experiences that other jurors bring until you talk with them during deliberations of recesses.
Presentation of the Evidence
Although this was a short case, it became apparent to me (as a juror compared to a trial lawyer) how the jurors want the case to move along quickly. As trial lawyers we always wonder whether the jury is getting our point. Believe me, the jury is getting the relevant points. Indeed, they are picking up points of the evidence that you as a lawyer probably missed. For example, in the videotape, the defendant stated that she would have difficulty with the field sobriety test because she had an injured leg as the result of an automobile accident. This point was never raised by the defense attorney but at least four of five jurors clearly remembered this very subtle point during the videotape. Moreover, I found myself as a juror wanting the case to move more quickly. This experience clearly demonstrated to me that you do not (as we have often suspected) need to continue to hammer home points in examinations. The jury gets your point. We need to keep the case moving. The jurors appreciate lawyers that are prepared and move the case. It is not necessary that you ask every question and dispel every point that you think is relevant to the case.
It is very important what you say to the jury. They remember what you say. They remember the evidence. They remember if you fail to deliver. Jurors appreciate the lawyers pointing out evidence that they may not have been able to tie together but they are forming their own opinions as the case develops regardless of what the lawyer argues.
Probably the most enlightening experience, other than an appreciation of the jurors themselves, was the process of jury deliberation. The jurors elected me as foreperson thinking (wrongly) that I must have had some experience with the jury deliberation process. During the jury instructions, the court advises the jury of essentially two matters. Firstly, pick a foreperson. Secondly, deliver a verdict. There are no other instructions given by the court (or by anyone else) on how to conduct jury deliberations. I found myself as a jury foreman asking what should be the appropriate process for deliberation. I asked jurors if they wanted to review the videotape (which they did not as nobody had a dispute as to what was on the tape). I asked if the jurors wanted to read the instructions. Some lawyers are very facetious and indicate the jurors don't read the instructions. This is not true. Some of the jurors wanted to read the instructions. Others did not. The quintessential issue in the case was whether the defendant was under the influence. The instruction was read.
However, there is no specific order as to what a jury should do. Should they read the instructions first. Should they review the evidence first. What should be the process they should follow? In addition, when is the jury to vote? Should they vote without looking at the instructions? After they have reviewed the evidence? Again, there is no process in the jury room. It appeared to me that a very strong personality would be able to quickly divert the jury's attention from the essential issue and to deal with extraneous issues. For example, in this case, the failure of anyone to provide any evidence as to what happened between 9:30 p.m. and the time of the arrest was a point of discussion. However, it was noted during the deliberations that it was not relevant what happened during that time as no one had presented any evidence. The defense lawyer had made a very persuasive argument about the insufficiency of the evidence.
Another matter that was very important to me as a juror (but not as a lawyer) was how do you vote. Do you vote by secret ballot or do you vote by raising of hands? In our case, it was a secret ballot and a quick verdict - acquittal.
This short experience provided me with much insight as an attorney. Probably the most important fact was an appreciation of the citizens that we ask to serve as jurors. We impose upon their families and their work schedules and ask them to decide our clients' disputes. Although all lawyers and judges appreciate the service of our jurors, until one provides the sacrifice it is difficult to appreciate what we ask jurors to do when we invade their personal lives. Secondly, I appreciated that, as a trial lawyer, we have an obligation to move our cases and make our presentations quickly and to the point. The jury is much more perceptive of everything that happens in the courtroom than we may believe as lawyers. Someone is always considering the evidence and the nuances.
I would encourage any lawyer who has the opportunity to serve to do so. It will make you a better lawyer.