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.

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.