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The Top Ten Myths of Jury Trials

By Jeralyn, Section Law Related
Posted on Sat Apr 05, 2008 at 11:18:48 AM EST
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Richard Crawford, a founder and past national president of the American Society of Trial Consultants (not a lawyers' group) lists his top ten myths about jury trials.

I haven't yet read them all, but No. 7 leapt out at me. " 7. A trial is about discovering the truth."

I agree that's a big myth but I would give a different explanation. Mr. Crawford says trials are about justice, not truth. One can hope truth (or justice) will be reflected in the outcome, but a criminal trial is only about a testing of the evidence and whether the prosecution can prove its case beyond a reasonable doubt.

Semantics, maybe, but it's an interesting list on the whole.

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    The Top Ten Myths of Jury Trials | 18 comments (18 topical)

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    Jurors (5.00 / 1) (#7)
    by waldenpond on Sat Apr 05, 2008 at 12:04:14 PM EST
    sure push some of this stuff.  I imagine I am a pain in the a@# when I am on a jurty.  I have done two trias and one grand jury.  When someone whined about the defendent not taking the stand and others agreed, my response was to scowl and say.. 'what is the matter with you, would you?'

    When others try to debate 'what really happened'  I go back to my notes and say... 'this evidence shows such and such, what evidence disputes it?'

    People waited for the coffee to be brought in and then wanted to vote by raising hands because they wanted to leave, a few of us thought the issue too important.  They passed out papers and tried to force a secret vote and I refused and crossed my arms, and others stepped up and wouldn't be bullied either.  When others tried to discuss newspapers or what they heard in the hallway outside of the court... me again.. 'what are you doing? that isn't relevant, I don't want to hear that.'  If someone had an opinion, I wanted to know exactly what part of the testimony led them to believe that.  If they couldn't back it up, I refused to record it.

    The grand jury lasted 6 weeks, two people left because they didn't want to put in the time, two more left during deliberations because they didn't want to put in the time.  It took us 5 days to reach a decision.  Like I said, I'm a pain in the a#$. woohoo!

    Mr. Chaffanbrass would agree (5.00 / 1) (#8)
    by Demi Moaned on Sat Apr 05, 2008 at 12:12:34 PM EST
    as I had occasion to comment before:
    "In such a case as this I do not in the least want to know the truth about the murder."

    "That is what the public wants to know."

    "Because the public is ignorant. The public should not wish to know anything of the kind. What we should all wish to get at is the truth of the evidence about the murder..."
    Got Jury duty Monday (none / 0) (#1)
    by Stellaaa on Sat Apr 05, 2008 at 11:22:59 AM EST
    Should I read it?  

    My one jury experience (none / 0) (#2)
    by hitchhiker on Sat Apr 05, 2008 at 11:27:58 AM EST
    was on a federal case about tax fraud.  There were 9 defendants, 2 of whom were defending themselves.  The rest of them had their own attorneys.  It went on for 2 months, and the prosecutors were --mostly-- spectacularly incompetent. The schemes were not that complicated, but they managed to make it all seem quite byzantine.

    We convicted 5 of those people (all of them were guilty) after 2 weeks of the most frustrating conversations I've ever participated in.  My takeaway is that justice and truth are very hard won, maybe especially in the jury room.

    IMHO (none / 0) (#3)
    by digdugboy on Sat Apr 05, 2008 at 11:33:04 AM EST
    trials are often about who has the better lawyer. In civil cases, anyway.

    No, not truth (none / 0) (#4)
    by nellre on Sat Apr 05, 2008 at 11:33:42 AM EST
    Lawyers manipulate the jury. The best manipulator wins the case.

    If it doesn't fit you must acquit - give the jury something simple, they're inept at critical thinking... or so they think... or so they wish.

    Jurors aren't stupid (none / 0) (#10)
    by myiq2xu on Sat Apr 05, 2008 at 12:14:13 PM EST
    and they usually see through the BS.

    The problem is the enormous evidentiary advantage that the prosecution has.  "Reforms" in the area of criminal law have really stacked the deck against defendants.

    Most cases depend on what the cop says and what evidence the cop collected.  Often the defense is prevented from questioning the prosecution witnesses until they are actually on the stand.

    Parent

    Grand Jury (none / 0) (#6)
    by waldenpond on Sat Apr 05, 2008 at 11:49:57 AM EST
    I sat on a grand jury and we did, many, many questions.

    I agree with that list (none / 0) (#9)
    by DandyTIger on Sat Apr 05, 2008 at 12:13:08 PM EST
    from my experience on a few juries. Actually I quite liked the experience. Very educational.

    One of the first things that you notice is of course something you should already know, that there is a wide range of capabilities of lawyers. I say you should know it, but I think I idealized the justice system before that and somehow had in my head that everyone would take that job seriously and put everything in every case. But in one of the trials I was in, the plaintiffs lawyer was really incompetent. In the jury deliberation I would hear someone say something negative about the lawyer and I would have to keep repeating to not find against this person just because you don't like his lawyer. There was definitely a lot of pressure in that case to wrap things up and go home.

    oh, and jury selection is (none / 0) (#11)
    by DandyTIger on Sat Apr 05, 2008 at 12:17:58 PM EST
    just the funniest thing I've ever seen. Especially in cases that are not high profile and don't have high caliber counsel. I've gone through lots and lots of those. The stories I could tell. Mostly what has been funny is the badly thought out armchair psychology and lame formulas that are used when there isn't a real expert in jury selection. They often get things exactly backwards. He should have had something about that on his list.

    Re: Innocence (none / 0) (#12)
    by myiq2xu on Sat Apr 05, 2008 at 12:20:05 PM EST
    Innocence will protect you in a criminal trial.

    My experience is that the truly innocent get the worst treatment from the system.  I always figured there were four kinds of defendants:

    1. Guilty as charged.

    2. Guilty but overcharged.

    3. Guilty with a non-innocent defense (illegal search, insanity)

    4. Innocent.

    Of the four, #1 and #3 get the best treatment because they usually get less than they deserve.  #2 usually gets about what they deserve, and #4 gets screwed, even if they ultimately are acquitted.
    Myth #6 (none / 0) (#13)
    by Lora on Sat Apr 05, 2008 at 12:37:02 PM EST
    From Crawford:

    6. Defense lawyers who defend those they know to be guilty are unethical.

    No, a person charged with a crime is never guilty unless and until a jury has said so and a judge has affirmed same. Our Constitution guarantees everyone the right to a vigorous defense or testing of the evidence and it would actually be illegal and unethical if a defendant were denied this right.

    I have trouble with this one.  I believe in certain cases it is unethical for defense lawyers to discredit witnesses to a crime the lawyers know or believe was committed, but their client pleaded "not guilty."

    What is guilty? (none / 0) (#14)
    by bernarda on Sat Apr 05, 2008 at 05:13:45 PM EST
    Do you ever watch reality programs like "Cops". Half the program is about cops spending enormous amounts of time to arrest small-time drug users or dealers. Total waste of tax-payer money.

    In almost all other cases, the second thing the cops ask is whether you have any drugs. The first is about a weapon of some sort.

    It is obvious that anti-drug laws are a catch-all for cops who really don't have anything serious against a "suspect". I don't know how many of these cases go before a jury, but if I were on that jury I would find "not guilty" regardless of the evidence.

    - But to another point. Ambrose Bierce wrote more than a century ago:

    "Jury, a number of  persons appointed by a court to assist the attorneys in preventing law from degenerating into justice."

    As for justice, he wrote:

    "A commodity which is a more or less adulterated condition the State sells to the citizen as a reward his allegiance, taxes and personal service."

    Don't faint (none / 0) (#15)
    by jimakaPPJ on Sat Apr 05, 2008 at 09:03:53 PM EST
    But I agree.

    uh.....I think we were speaking of a (none / 0) (#16)
    by jimakaPPJ on Sat Apr 05, 2008 at 09:08:21 PM EST
    petit jury.

    Parent
    unanimous juries (none / 0) (#19)
    by diogenes on Sat Apr 05, 2008 at 10:20:18 PM EST
    If the requirement for conviction or acquittal were 10-2 rather than 12-0, justice would much more often be served.  As it is, if ten people believe reasonable doubt was met and two people believe that preponderance of the evidence was met, then you have a hung jury.  

    Trials are about an appearance of due process (none / 0) (#20)
    by jerry on Sat Apr 05, 2008 at 10:58:41 PM EST
    Call me cynical, but my experience with trials and hearings in front of a judge with no jury in family court is that what is going on is a nod of the head to "due process."  Not to justice.  Not to truth.  And really, not even to due process.

    The chief question to be answered is never the best interest of the child.  The chief question to be answered is who will pay the lawyers bills.  Once that has been determined, everything else flows down from there.

    And Eugene Volokh has described how "best interest of the child" is in many ways a very evil, unconstitutional test that fails due process and equal protection since rarely do non divorced families consider best interest of the child.  And it is basically an untestable test that allows the judge to anything the judge damn well pleases.

    Apologies to TL, since the post was about jury trials.  But grrrr.  Family court is an abomination that should be declared unconstitutional and nuked from orbit.

    I just finished a hard-fought civil jury trial (none / 0) (#21)
    by scribe on Sun Apr 06, 2008 at 01:12:02 PM EST
    and can say this:
    (1) even with voir dire which the attorneys and judge think is the most searching they could come up with - wild cards slip through.
    (2) juries pay attention, but maybe not to what the lawyers want them to.
    (3) juries can smell bullsh*t in a heartbeat.
    (4) the quality and "tightness" of the presentation the lawyers make counts.
    (5) jurors might not "agree" with the result, in the sense they don't like handing down the verdict, but they will follow the law.

    And, no, I'm not going to tell you how the case came out.

    The Top Ten Myths of Jury Trials | 18 comments (18 topical)

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