Judge-Jury Relationship: The Deliberation Phase

By John DiMotto

In the seventh and final phase of a jury trial, the jury deliberations, the jury finally gets the opportunity to discuss the evidence and the law and, using their common sense and long experiences in life, return a verdict.

In most of my juries we have selected one extra juror, and before deliberations can begin one juror must be excused. This occurs "by lot." Years ago, in the 1970's, when more than 12 people were selected to serve on a jury there were two tiers of jurors. First, you had the "regular" panel of 12 and then you had a designated alternate or two. The regular jurors knew they were "regular" and the alternate knew he/she was the "second class" juror - one who would play no role unless a "regular" juror was struck prior to deliberations. This process sent a poor message to the alternate. In the 1980's this was changed. Now when you select a jury of more than 12, all jurors are on the same level. All have the same "investment" in the trial. Only at the end of closing arguments and instructions is one juror excused and then the remaining 12 can begin deliberations. While it is often disappointing to the juror who is struck, this process keeps all jurors "into" the trial to the end.

In my final instructions, I give the jurors some parameters to guide them in their deliberations.

1) I usually make the decision that, on my own, I will not provide them with any exhibits when the jury begins deliberations, and I tell them this fact. It is my belief that I should not give them some exhibits and not others because this might give them the impression that what I give them is more important than what I don't give them. I tell them this and also tell them that if they do want to see any exhibit all they have to do is ask and in most instances they will get the exhibit. However, I also tell them that if the exhibit they want to see is one not appropriate for the jury room (ie. voluminous medical records of which only a few pages were used) they won't get it but can still consider it to the extent it was used during trial. I tell the jury that it is my belief that if they know they can ask for an exhibit and don't ask, that tells me they don't need it in the jury room.

2) I have a law clerk who is the liaison between the jury and the court/attorneys during deliberations and I tell the jury that if they need anything, they can use our buzzer system to call for the law clerk and give him/her their request. This usually pertains to requests for exhibits, question for the court, requests for food or beverages, etc.

3) If the jury has a question or request, I tell them that I will discuss it with the attorneys before I take action.

4) Any questions or requests made by the jury are dealt with on the record with the attorneys before a response is made unless the attorneys make themselves incommunicado with the jury. If that happens, I tell the attorneys that I will deem this circumstance to be a waiver by them to giving input in how I deal with the request/question. I do this in civil, not criminal cases.

Once the jury reaches a verdict, we convene in open court and read the verdict. I routinely individually poll the jury once the verdict is read to ensure it is the verdict of the jury. The jury is then excused with my gratitude for their service.

Before the jury leaves the jury room, I usually stop in to personally thank each of them for their service and inquire if they have any questions about the process that I can answer. I do not want to get into specifics about the case since there may be motions after verdict, but I generally speak with the jury about their experience and what I can do to enhance the experience for future juries. I also tell them that now the case is over and they can talk to anyone in the world about their service - in person or on line via social networking.

The bottom line is this. Our jury system WORKS because of the willingness of people to step up and answer the call of jury service. Our jury system is the best in the world because of the people who serve.

Judge-Jury Relationship: The Closing Argument Phase

By John DiMotto

The one phase of the trial where the judge's relationship with the jury is dependent on the judge's relationship with the attorneys is the sixth phase - the Closing Argument Phase.

This phase give the attorneys the opportunity to persuade the jury as to how the jury should decide the case based on the evidence, in light of the law, using common sense and long experiences in life. Here, the case is about the attorney-jury relationship. However, the trial judge can, and should, provide both of them with the context in order to enhance the performance of both.

I believe that in order to promote effective arguments, the trial judge should impose reasonable time limits on the attorneys. There is a saying that "the longer you talk, the less the jury listens." I believe that is true. Attorneys need to package their arguments in a neat and tidy way to get their positions across. Less does mean more. In the Opening Statement Phase, the attorneys tell the jury what they will hear and see. In the Closing Argument Phase, they should emphasize how they have done so, clearly and concisely. Attorneys should read the body language of the jurors during their arguments and take cues from it. Attorneys should also consider reinforcing their verbal arguments with demonstrative evidence - use of an easel or flip chart to highlight, in bullet point fashion, the key components of their argument.

The trial judge can and should provide a proper environment for both the attorneys and the jury for the sixth phase. In doing so, the trial judge provides the jury with the final light at the end of the tunnel as the jury gets ready to embark on their deliberations in the seventh and final phase of trial.

In my next post, I will discuss how the trial judge can promote effective deliberations.

Judge-Jury Relationship: The Closing Instruction Phase

By John DiMotto

After all the evidence has been presented in the the Evidentiary Phase (fourth phase), in the next phase of the trial, the Closing Instruction Phase (fifth phase), the judge addresses the issue of what jury instructions should be given in light of the facts adduced in the fourth phase.

When the trial begins, while the judge has a pretty good idea as to what instructions will govern the deliberations, the judge cannot be certain given the vagaries of trial. Only after all the evidence is in can the judge make a decision as to all the principles of law that the jury should consider during deliberations.

Before a final decision is made, an Instructions Conference is held with the lawyers. At this conference, the pretrial jury instructions requests of the lawyers are considered. Each judge handles the Instructions Conference differently.

In Wisconsin, there are several Jury Instructions Committees who are empowered to draft model instructions for use in most cases. These standard instructions are the starting point in jury instruction consideration.

The way I approach a jury instructions conference is as follows:

1) I do it on the record so an appellate court will have the benefit of my thought process based on a full exploration of the law in light of the facts.

2) I set forth what I believe are the appropriate instructions and the order in which they should be read. This is based on the lawyers' pretrial requests and my view of the evidence.

3) I go over how I believe the appropriate special verdict form should read

4) I ask the lawyers if they have any objections to my proposed instructions, and if so, the basis for their objection.

5) I ask the lawyers if they have any objections to my proposed special verdict form, and if so, the basis for their objection.

6) I ask the lawyers if they want any of my proposed instructions modified, and if so, the basis for their request.

7) I ask the lawyers if they want any additional instructions, and if so, the basis for their request.

8) I then set forth in detail on the record my decisions. I relate the decisions to the law that applies in light of the evidence.

9) I then discuss the issue of how we will handle issues regarding exhibits. It is my practice to not send exhibits to the jury on my own, however, if the jury requests to see certain exhibits to provide them so long as it will not create a situation of unfair prejudice.

10) I then address the amount of time the lawyers believe they need to effectively argue the case to the jury and then set reasonable time limits.

11) Finally, I bring the jury back into the courtroom and proceed to read the instructions to the jury.

12) If it is a case where the special verdict is very lengthy, I usually provide a copy to each juror so they can follow along when I am reading the verdict form before I start.

The judge must be very meticulous and careful in the instructions decisions he/she makes. You do not want to spend weeks on a trial only to take the instructions too lightly, mis-instruct the jury and have to retry the case.

In my next post, I will discuss the sixth phase of the trial, the Closing Argument Phase.

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.

Judge - Jury Relationship: The Evidentiary Phase - Part Two

By John DiMotto

In my last post, I began a discussion on how a judge relates to the jury during the evidentiary phase of the trial. Today, I would like to discuss how "juror questions" can make a huge difference on how attorneys approach their case.

Most attorneys are opposed to "juror questions" for witnesses. They are concerned that the jury will take an advocacy posture as opposed to a fact finder posture. They are concerned that the jury will ask questions that have nothing to do with the issue/s in the case and go off on tangents that will take their focus from the task at hand. While I understand these concerns, I firmly believe that a properly instructed jury stays on task. I also believe that allowing "juror questions" gives the attorneys an insight into juror thinking and an insight as to whether they are making an effective presentation to the jury.

When I allow "juror questions," I have the jurors submit them in writing. They submit their questions anonymously. I review them with the attorneys and do give them input before I make the decision as to whether I will ask the questions of the witness. I also ensure that the attorneys get the opportunity to do follow up and they finish up the questioning before the witness is excused. I stress to the jury that I allow questions from them so jurors can get answers to questions they think they need to decide the facts in the case. I tell them that if I do not allow certain questions it is because the questions and the answers are not relevant and should not be a concern for the jury. I even try to give an explanation as to why a certain question is not being asked for the benefit of the "anonymous" juror who submitted the question. (ie. a question calls for speculation, is barred by the rules of evidence, etc,) By allowing "juror questions," the attorneys have a window into what jurors are thinking. Oftentimes, attorneys "miss the forest for the trees." By this, I mean they are so engrossed in their case that they take things for granted. They sometimes forget that while they have been living with the cases for months or years, this is the first and only time the jurors are being presented with the case.

If the trial judge fully instructs the jury on what "juror questions" allows the jury to do and what they cannot do, the jury can more easily stay on task and perform within the context of their sworn oath. Further, if the attorneys pay close attention to what questions the jury submits, they will have an insight into whether they are being effective advocates, and if not, they can address their deficiencies before it is too late.

In my next post, I will discuss the pros and cons of the rule that the jurors may not discuss the case among themselves until deliberations in the seventh and final phase of trial.

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.

Judge - Jury Relationship: The Opening Statement Phase

By John DiMotto

Once the jury has been selected and the jury has been read preliminary instructions, the attorneys are given the opportunity to make their Opening Statements. While it might seem like this phase does not have much of a judge-jury relationship, it does.

Every judge should make sure the jury understands that what the attorneys say in their opening statement is not evidence. This may be rudimentary to those of you reading this blog but it is not necessarily so for the ordinary citizen off the street. Some people think that if the attorneys are allowed to say something it must be so. I emphasize that the Opening Statement phase is the opportunity for the attorneys to "paint a big picture" about what the case is all about; that it gives the attorneys the opportunity to provide the jury with a "roadmap" to follow the evidence as it is presented. However, I emphasize that what they say is not evidence and if the evidence does not support what they say in opening statements that the jury must give it no credence. In fact, I tell the jury that they may not take notes of what the attorneys say in opening statements because they can only take notes of the evidence.

When the attorneys are making their opening statements, I pay close attention not just what they say but how they say it. While I will not be overly proactive, I will sustain objections to "arguments" and "personal opinions" during opening statements. Attorneys are not allowed to argue during opening statements. There is a difference between opening statements and closing arguments. The words themselves convey the difference. In opening statements, the attorneys tell the jury what they will prove. In closing arguments, the attorneys can argue and attempt to persuade the jury as to how they should decide the case. While attorneys will often try to use the opening statement to argue, it really is not appropriate.

In my next post I will discuss the fourth phase of the jury trial - the Evidentiary Phase.