Judge-Jury Relationship: The Evidentiary Phase - Early Juror Discussions

By John DiMotto

The current state of the law in Wisconsin does not allow jurors to discuss the case among themselves until they begin their deliberations at the end of the trial, during the seventh and final phase. While this may be the case here, it is not so throughout the country. In some jurisdictions, jurors are allowed to talk about the case as it is progressing. It is believed that this early discussion, some might call it premature jury deliberations, helps all jurors to keep up with the evidence and not "fall behind" because some have missed the significance or insignificance of some evidence.

What are the pros and cons of early discussion of the case?

Pros:

Jurors can review the evidence while it is fresh.

Jurors can help each other understand the evidence while it is fresh.

Jurors can collectively help each other focus on what is important and what is not.

If jurors are allowed to submit questions for the witnesses, early discussions will assist the individual jurors in the "direction" of their questions so they are "on task."

Cons:

Passive jurors can be swayed by active jurors.

Jurors may prematurely take sides.

Jurors may prematurely make up their minds.

Jurors do not have the benefit of "The Law" to guide their early discussions.

Overall, I do not favor early discussions. "The Law" gives a framework/canvas in/on which the jurors do their work. Until all the evidence is in, the trial judge is not in a position to fully instruct the jury. In other words, there is no framework/canvas until the judge knows what law should be applied to the evidence by the jury.

In my cases, during my preliminary instructions in the second phase of the trial, I explain this to the jury. I tell them that I do not believe that they can intelligently discuss the importance and significance of the evidence until they have heard ALL the evidence and know what ALL the law is that governs the case. Only then is there a CONTEXT to govern jury deliberations.

I am not saying that jurors will prejudge the case if they engage in early discussions, but I do believe that we all have a tendency to arrive at opinions/conclusions as early as possible and that can cause us to have tunnel vision and effect how we see things. Jurors must keep an open mind to everything in evidence and I think this will be difficult to do so, effectively, if they engage in early discussions.

In my next post, I will discuss the fifth phase of the trial, The Closing Instruction Phase.