Judge - Jury Relationship: The Evidentiary Phase - Part One

By John DiMotto

For me, the most challenging and fascinating phase of the jury trial is the evidentiary phase. During this phase, a judge must multi-task. The judge must monitor the evidence, monitor the conduct of the attorneys, be prepared to make instant rulings (rulings that on appeal are analyzed for hours not seconds), keep an eye on the gallery to make sure that people are not trying to influence witnesses on the stand, make sure that witnesses who have not yet testified are not in the courtroom if there is an exclusionary ruling precluding their presence until they are done as witnesses, describe- for the record - gestures of witnesses that constitute evidence that their words do not convey, keep an eye on the jury to make sure they are following the case, be attentive to any questions they submit (in cases where I allow the jurors to submit written questions for the witnesses).

To make sure the jurors can give the case their full attention, I do not keep them in the jury box for longer than an hour and a half at any stretch. It has been my experience that after that amount of time the jurors need a break to "recharge their batteries," take a restroom break, stretch their legs, perhaps grab a snack to give them extra energy or even leave the building if they are smokers.

When I do give them a break, I always give them a cautionary instruction; the same one every time. I always remind them: "You may not discuss this case among yourselves. It is premature to do so until this case is given to twelve of you for your final deliberations in the seventh and final phase of trial. Also, if you leave the jury room, make sure you avoid contact with the lawyers, parties and witnesses and they know they should avoid contact with you. Finally, remember that you should not try to obtain any information from any source. This means do not consult dictionaries, other books, go on the internet for information, do not so any social networking. If you do so you will jeopardize the integrity of your verdict."

Since I say it every time, I invariably see smiles and the faces of many of the jurors. I know that I have made my point and am confident they are following my instructions and admonitions. Occasionally, I even tell the jurors that at some point when we take the break I will ask one of them to repeat it for the other jurors. That usually gets a chuckle. I find it is a "gentle" way to reinforce the importance of juror not trying to get any evidence from extraneous sources. It would be a shame to have to retry a case because of juror misconduct.

I also tell jurors that during the evidentiary phase, if at any time they cannot see evidence which is being presented to them in "visual" form or if they cannot hear what witnesses are saying that they must be proactive and get my attention. I reinforce that each juror must hear and see all the evidence; that it is not good enough, if they miss something, to wait until deliberations to ask other jurors what they missed.

The evidentiary phase is "the meat and potatoes" phase of the trial and it must be served up "on fine china", that is, in a first class manner.

I truly believe that if the judge communicates with the jury throughout the trial as to what they can and cannot do, particularly during the evidentiary phase, that they can do their job more easily and with less anxiety.

In my next post, I will cover the circumstance of how a judge can effectively deal with juror questions for witnesses.