Judge - Jury Relationship: Jury Nullification

By John DiMotto

In my last few posts, I have addressed the interplay between the role of the judge, attorneys and jury. I have discussed the importance of the judge establishing a trust relationship with the jury so the jury will use their common sense in evaluating all the evidence to determine what happened - that is to determine the facts and then apply the law - the legal principles that govern the event in question - to those facts.

Jurors want to do the right thing. They want to make the right decision. In order to do so, they must be instructed on what what the law is and they must understand that they must apply THAT law. The jury is not to trump the law or apply what they think the law should be or what they would like the law to be. To do so is to embrace "jury nullification" which promotes injustice as opposed doing justice. It is of the utmost importance that a judge, in instructing the jury on the law and their role in administering the law, make it clear that they must follow the law. This is why the Opening and Closing Jury Instructions phases of a trial are so critical.

Jury nullification is a concern in criminal cases. It usually occurs when the jury recognizes that a defendant has violated the law and should be found guilty but because the jury doesn't agree with the law refuses to follow the law. It is a situation where the jury decides to ignore the law. Although jurors have the inherent power to engage in jury nullification irrespective of the evidence, it presents a disturbing scenario. If the jury disregards the law in favor of their personal feelings on what the law should be, in essence, they are putting themselves above the legislature who enacts our laws, the executive who enforces the law and the judiciary who upholds the law. It is renegade law and contributes to chaos as opposed to law and order. People have the right to disagree with laws that are enacted by the legislature but their redress is by lobbying for change not by being a runaway jury.

We do not face jury nullification very often in Wisconsin but it does arise on occasion. When it does, usually a defense attorney asks the trial judge to instruct the jury that they can engage in jury nullification. However, our appellate courts have made it very clear that a criminal defendant is not entitled to a jury nullification instruction. State v. Thomas, 161 Wis.2d 616 (Ct. App. 1991). In fact our jury instructions make it abundantly clear and the jury is told that while they determine what the facts are they must take and apply the law as given to them by the judge in the instructions whether they agree with the law or not.

I believe that if the trial judge has earned the trust and respect of the jury during voir dire and if the judge fully informs the jury as to the parameters of what they can and cannot do the jury will follow the law and contribute to doing justice as opposed to doing an injustice.

In my next post, I will specifically address the third phase of a jury trial: The Opening Instruction phase.

Jury Trial: Attorneys' Voir Dire Perspective

By John DiMotto

In my last post, I discussed the role of the judge in the voir dire phase of a jury trial. Today, I want to address the role of the attorneys in voir dire.

While it is the responsibility of the judge to "protect the record" that is, to ensure that the rules of evidence and the rules of civil/criminal procedure are followed in order to achieve a just outcome, the responsibility of the attorneys is different. To the extent that a judge serves as a "referee" in the trial process, the attorneys serve as the "players" who want to win. The judge must be aware of everything the attorneys are doing and make rulings that require the attorneys to "play by the rules."

In the voir dire phase, the judge asks the jury panel questions to uncover any biases, prejudices or predilections that will prevent them from being fair. The bottom line for a judge is that the jurors must start the trial with a "clean slate." It is evidence that is added to that slate throughout the trial and at the end of the trial the jurors evaluate the evidence on their slate in light of the law and answer the questions on the special verdict form which constitute the verdict of the jury.

However, the attorneys have a different approach to voir dire.

First, attorneys are looking for jurors who will be receptive to their case and return a verdict in their favor. They want jurors who will be "biased" in favor of their case. They ask questions of the panel to ferret out those who will not be inclined to accept their theories and propositions.

Second, attorneys will attempt to "sell" their case to the panel in their questions. It might not be what answers they hear that are as important as the impression they make on the panel.

Third, when attorneys find panel members who appear very receptive to their case, the attorneys will often ask them open ended questions that will get those jurors to give lengthy answers to sway others on the panel to their position.

The bottom line is that the attorneys want the jury to return a verdict for their client. They want to win for their client - and there is nothing wrong with that. However, the judge must ensure that they "win" within the "rules."

In my next post, I will discuss the responsibility of the judge in the second phase of the trial - The Opening Instruction Phase.

Jury Trial: The Voir Dire Phase

By John DiMotto

In my last post, I discussed the importance of a judge establishing a trust relationship with the jury. The jurors need to have someone they can count on and look to for guidance in how they should conduct themselves. That person is the judge - the "referee" who enforces the rules and makes sure that everyone "plays" by them. The judge is not partisan. The judge does not take sides. The judge does not have a "horse in the race." It is a powerful role and every judge must make sure that he/she conducts himself/herself in a manner that reinforces for each member of the jury the awesome responsibility they have to follow the rules of the courtroom set forth by the judge and the instructions of law that the judge delivers to the jury so that the jury decision is only based on the facts as the jury finds them, in light of the law with the jurors using their common sense and long experiences in life.

After the judge has fully explained the nature of the case, the length of time for the trial and the format of the trial, the judge then begins the questioning of the individual jurors - the process by which information is obtained from each prospective juror so the lawyers can determine who will and who will not serve on the jury. This is Voir Dire. This is where the prospective jurors are asked to "speak the truth" about themselves and their views. This is the process by which the likes and dislikes of the jurors is discovered. This is where any biases or prejudices or predilections can be uncovered and revealed. It begins with the judge conducting the questioning.

Some judges are very active and ask many questions. I am one of these judges. I believe that based on my "trust relationship" they will be candid and will provide complete and accurate information in response to my questions. I believe that jurors understand that I am independent of the position of the parties and I am confident that they will be open and honest with me in response to my questions and that when I am finished they will so respond to the questions of the lawyers. I make it clear that the lawyers have the right and the duty to fully participate in the process and questioning and that jurors must respect that and answer each question of the lawyers with the same candor they used in answer to my questions.

The judge"sets the table" for the lawyers. It starts and ends with the judge.

In my next post, I will address voir dire from the lawyers perspective. Their goal in voir dire is different from the goal of the judge.

Judge-Jury Relationship. In the Courtroom.

By John DiMotto

The most important duty of a judge - the judicial gatekeeper - in a jury trial is to establish a relationship of trust with the jury panel from the moment the panel enters the courtroom. While the lawyers and the judge may know the nuances of the case, both factual and legal, the jury comes into the courtroom "in the dark." When they walk into the courtroom, they often do not know what to expect and often do not even know what type of case they will be hearing. The judge must not just welcome the jury panel but create a comfort level so they can focus on their role -- to determine the facts.

When the jury panel enters my courtroom, I spend between 15 and 30 minutes just familiarizing the jury panel with the nature of the case, what a jury trial entails and how they should approach their role. I give them a brief synopsis of the type of case (ie. Personal injury automobile accident lawsuit); and what they must decide (ie. liability - the issue of fault - and damages). I explain to them how they came to be selected (ie. from public records) and that everyone who is called must serve - no one is too important to avoid jury service. I even tell them I have served on a jury so I know what it is to be a juror - that I have sat in jury box and have done what they are about to embark upon. I explain to them that they must decide the case only on what they learn, see and hear in the courtroom. I spend a lot of time telling them that they must "isolate themselves from the outside world" so they do not jeopardize the integrity of their verdict and I do so with multiple examples of what can happen if they do not follow my instructions. I explain the seven phases of a trial so they know where they are in the case and where they are going in the case. I am upfront about the time commitment they must make and how I appreciate their sacrifice. I let them know that I will be as upfront with them as I possibly can and will give them explanations about what is going on and will go on as best I can. By gaining their trust, I will gain their respect for the case, the system and the process.

In my next post, I will further discuss the voir dire process and what it can accomplish.

Judge-Jury Relationship: Jury Assembly Orientation

By John DiMotto

Important to making the jury comfortable and at ease in doing their job is how the judge interacts with and relates to the jury panel as a whole and then to the jury that is empanelled. Jury Orientation is critical.

The majority of people who are called to jury service are there for the first time. Unless they have an understanding of the law, beyond TV or the movies, they come to the courthouse with some trepidation because they are not sure what to expect. It is up to the judiciary to allay their fears and concerns and to reduce their trepidation, anxiety and apprehension. This is done by providing the jurors with information. This may sound obvious, but it is not always done effectively.

This process starts in the Jury Assembly. In Milwaukee County, the new jury panel is welcomed by a representative of Jury Management, a member of the judiciary and then they view a video about jury service. I enjoy taking part in this jury orientation because it gives me an opportunity to give the panel an insiders view of the process and what their service entails. I prepare them for the video by giving them my take on jury service from the perspective of a a judge, a "former" trial attorney and a "former" juror. (I have been called to jury service four times and served once - when I was a judge.) I tell them that I am going to give them the "real" scoop on what they should expect. When I have completed my remarks and can sense they are already more comfortable because I have begun to chip away at "the unknown" which contributes to their anxiety. Providing the jury panel with information on what they should expect provides them with "light at the end of the tunnel." If the jurors know what to expect, "what follows what," they will be more at ease and can concentrate on their task - deciding their case - without being distracted by "the unknown."

As important as a judge's participation in the jury orientation in jury assembly is, what is even more important is how a judge relates to his/her jury panel in his/her courtroom. How a judge relates to the panel in his/her courtroom makes all the difference between a prepared and an unprepared jury.

In my next blog, I will address the judge-jury relationship in the courtroom.

Judges, Lawyers and Jurors - The Communication Gap

By John DiMotto

Yesterday in my blog I discussed the importance for a judge to fully prepare for a jury trial in order to take "good" control over the trial to ensure that it moves along efficiently and fairly. An important aspect of the preparation is to have understandable jury instructions and to make sure the lawyers present their cases in ordinary English.

It is easy to forget that the legalese lawyers and judges routinely use is often a foreign language for the jurors. What the jury is told by the lawyers in their presentation - voir dire questions, opening statements, closing arguments and presentation of the evidence, particularly expert testimony, will only have an effect if it is understood by the jurors. What the jury is told by the judge in terms of their service and law in the judge's presentation - comments to the jury panel during voir dire, opening instructions before opening statements, final instructions, will only be effective if it is understood.

In Wisconsin, the judiciary has three Jury Instructions Committees. Criminal, Civil and Juvenile. These committees have the responsibility to meet regularly to discuss changes in the law and draft standard instructions to be used as a template by judges. At times the standard instructions must be modified or tweaked to meet the demands of the case and evidence, but for the most part they are used statewide. Use of these instructions ensures uniformity statewide.

I was a member of the Wisconsin Criminal Jury Instructions Committee for ten years. I was its Chair for my last two years. During my time on the Committee, thanks to the guidance of our Committee Reporter, David Schultz, we adopted a "Plain Language" approach to writing jury instructions. We worked to eliminate much of the legalese that created havoc with the jurors. We wrote, or rewrote instructions in common sense, ordinary English that ordinary, nonlegal people - jurors - could understand. This approach has also been adopted by the Civil and Juvenile Committees.

Because of my tenure on the Criminal Jury Instructions Committee, I am sensitive to the need to use language in my communication with jurors that they will understand and I encourage lawyers to do the same. If judges and lawyers do not factor in their use of language during a jury trial, they do a disservice to the litigants, witnesses, community and the jurors. The Communication Gap must be bridged in every case.

Getting Ready for a Jury Trial

By John DiMotto

It is not just lawyers who get ready for an upcoming jury trial. Judges do the same. They must if they are to do their job.

Every case has interesting "turns and twists." Unique evidentiary issues arise throughout the trial, issues that can be anticipated by a judge who carefully analyzes the file before trial. Failure to do so may result in the judge needing to send the jury to the jury room while he/she hears arguments on the issue from the lawyers and then, sometimes, the judge needs to do some quick research on the issue. Lack of anticipation and preparation does a disservice to the lawyers, parties and jury.

The preparation for a trial by the judge encompasses attention to jury instructions and special verdict form concerns. Every case is different and the law governing each case is different. Judges must put together jury instructions that are tailored to the case. Many people are of the opinion that there are standard jury instructions that judges use and that judges don't have to spend much time on them. Nothing could be further from the truth. While there are many standard "boilerplate" instructions, the critical instructions must be tailored to the evidence and the issues in the specific case being tried. If a judge works on the jury instructions before trial not only will the judge be on top of the case, but the judge can move the case along efficiently and, hopefully, error free.

In the final analysis, good judicial preparation can accomplish three things: efficient use of court time; respect for the lawyers, litigants and the jury; an error free trial that will bring finality to the case.

Italian Experience

By John DiMotto

For the past two and one half months, I have been posting about my Bench and Bar Experiences. A "View from the Bench." However, for the past 12 days, I have had another view that I would like to share - a "View from Italy."

Earlier this month, I celebrated my 60th Birthday. My wife, Judge Jean DiMotto, decided to make it very special and set up a trip to Italy. She made it extra special and really surprised me by flying our daughter and her boyfriend all the way from Sydney, Australia to be with us in Italy.

We flew in to Rome and took the "fast train" to Florence where we stayed for the first 5 days. We went to the Uffizzi Gallery and the Accademia. Saw the Duomo, Santa Croce Basilica, Santa Maria Novella Basilica, Ponte Vecchio and more. Had great, truly authentic Italian food at restaurants where the locals eat. On one of our days in Florence, we took the train to Venice and spent the day. It was actually the first day of Carnevale and St. Mark's Square was abuzz with activity. Our daughter and her boyfriend took a side trip one day to Pisa. You can guess what photos they took there.

On the sixth day of our trip we took the "fast train" back to Rome and spent the last five days there. We toured the Ruins (Colloseum, Roman Forum and Palantine Hills), Piazza Venezia, Spanish Steps at Piazza Spagna, Piazza Barberini, Via di Populo, Pantheon, Via del Corso, Trevi Fountain, the fountains at the Piazza Navona, Triton Fountain, to name just a few of the sights and sounds we took in. Ate at some terrific restaurants and had some of the best Gelato, Espresso and Cappuchino ever.

So you see, a judge does not just experience the law, a judge also experiences life which, in turn, makes us a better judge of people and events.

Ciao.

A Few Days Off

I have a few projects that I will be working on for the next few days so I will not be posting again until February 15th. I look forward to addressing jury trial "judicial" concerns when I resume.

The Civil Case Final Pretrial

By John DiMotto

During the first appearance before a judge in a civil case, the judge puts in place a scheduling order that governs how the case will proceed. Numerous deadlines are set to make sure the case stays on track for a trial unless the attorneys are able to settle the case short of trial. (Most cases settle because the lawyers and the parties want to control the outcome of the case rather than have the case decided by a jury or a judge.) One of the deadlines is setting the case for a final pretrial conference.

The final pretrial is a meeting between the judge and the lawyers where the judge is given an update as to the progress of the case and whether it looks like it will be settled or will go to trial. The judge inquires as to the outcome of mediation which is ordered in all cases. The value of mediation, if it does not settle the case, is that it usually refines what issue/s are in play and helps the lawyers focus on what is really important. Sometimes the lawyers will ask the judge for his/her advice or thoughts which the lawyers will factor into future discussions while the case awaits the trial.

At the final pretrial, the judge will usually set two dates. A date to resolve Motions in Limine and a date for either a court trial or a jury trial. There is usually between 90 and 180 days between the final pretrial and the trial. During this time the lawyers continue to work on the case and attempt settlement. A majority of the cases do settle between the final pretrial and the trial.

The value of the final pretrial is that the judge can weigh in on the progress of the case and make final decisions on juror notetaking, juror questions, peremptory challenges, etc so that when the day for the trial arises, the case will go forward without further delay.