Thursday, December 17, 2009

Judges as Jurors - For Real

By John DiMotto

Judges routinely act as jurors multiple times every day. When we decide a motion or conduct any hearing that requires us to evaluate credibility and make findings of fact, we are functioning as a one person jury. So what happens if a judge is called to jury duty? Is a judge automatically disqualified as a result of his/her profession? The answer is a resounding "NO." Judges, just like everyone else can be called to jury duty and serve on a jury.

In Wisconsin, just about everyone is qualified to serve on a jury. (Exceptions: Those under 18 yrs of age, those who are not US citizens, those who are not able to understand English, a person convicted of a felony who has not had his/her civil rights restored.) I have been summoned four times in my life and one time, in 1994, I was selected to serve on a jury. My wife, Judge Jean DiMotto, has also been summoned and has served on a jury. As a prosecutor in the 1980's, Court of Appeals Judge Patricia Curley served on a jury for one of my cases.

Now you might ask, why would lawyers or parties to a lawsuit want a judge to serve on the jury? (Some people are of the opinion that if a party wanted a judge to decide the case they would not ask for a jury.) I believe the reason a judge is left on a jury panel is because the judge understands the process and can put aside sympathy, prejudice and passion more easily than others and arrive at a decision based on the facts and law without extraneous distractions (ie the media, community sentiment about the case, etc.) We are in the business of making decisions - fairly and impartially - and can assist the jury to do the same. Judges on the jury can help focus the jury on what is important and make sure that the law is applied to those facts found by the jury. In the jury room, the judge should not be a super juror and should not take over the deliberations. In the case I served on, I was not the foreperson, I insisted that we vote by secret ballot and I spent most of my time listening to the jury discussions. I was careful not to take over the discussion but only added to the discussion in response to specific questions put to me.

Perhaps the most important lesson I learned is how great the jury system truly is. Jurors approach their task with sincerity and poise and grace with a full understanding of the awesome responsibility entrusted to them. They take nothing for granted and want to do the right thing within the instructions of law for the case. Being on a jury inspired me and helped make me a better judge.

Should judges be allowed to serve on juries. Absolutely.

1 comment:

  1. I agree with John's sentiments, but would hasten to add this: If I found myself on a jury, I would assume the parties ran out of strikes.

    People often ask me how likely it is that they will get on a jury. They assume the chances are nil because one party or the other will not want them on the jury. The person is a doctor or a priest or probation officer or college professor or the sister-in-law of a police captain, and therefore they assume that one party or the other will strike them. And I say to them, it all depends on whether there are others on that panel that the lawyers like less -- it just depends on whether they have enough strikes.

    I've never made it to a jury (been in the pool twice), and I've had judges sit on jury panels in my courtroom (including Charles Clevert and Dennis Moroney) and they've never made it onto a panel, either.

    I'd be interested to hear what veteran trial lawyers say, but my hunch is that lawyers are afraid of having a judge on the panel because the judge will have a natural tendency to lead the deliberations and citizens will have a natural inclination to follow the judge.

    Good post, John.