Tuesday, December 4, 2007

Recipe for a Hung Jury

Anne Reed writes here about a jury foreman who felt so bad about convicting the defendant she agreed to pay her fine. Anne then adds her thoughts about empowering jurors to hold to their vote in the jury room.

Empowering jurors is key to success in trial work. The real art of empowering jurors probably developed in death penalty defense work where jurors where trained to hold to their "life" vote at punishment, resulting in a hung jury. A capital jury hung on punishment would then result in an automatic life sentence. Anne suggests letting jurors know "how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in." She suggests "helping them rehearse in their minds how they'll do it, if they need to." But there is much more to empowering jurors to hold on.

Certainly, individual jurors must be taught during voir dire that their vote is important. Their vote, whatever it may be, can be based upon any fact or factors important to them. That the verdict of the jury is not one verdict but 12 individual verdicts, which are based upon individual judgment and reflection.

However, another key component of training jurors to stand firm is to commit other jurors - the jurors in the majority - to respect the vote of someone else. And not only respect the vote of a holdout, but to teach stronger jurors to actually protect the vote of someone who has an idea different from theirs. Roughly, the voir dire go something like this:
Lawyer: Mr. Potential Holdout, you of course, believe the verdict of the jury is not one verdict, but twelve individual verdicts. [Yes, I do.]

Lawyer: Based on the jury instructions given by the judge, the law will demand each juror not violate their individual judgment and conscience just to reach a verdict. Do you believe your vote is important and deserving respect from other jurors, even if you are only one of twelve? [Yes, of course.]

Lawyer: Thank you. Now, Ms. Strong Majority Juror. You certainly believe each member of the jury deserves respect? [Yes, of course I do.]

Lawyer: You certainly believe their vote, even if different from yours, deserves respect and even protection from other jurors who might want to bully the holdout into a verdict? [Yes, absolutely.]

Lawyer: Then, can I count on you to protect the vote of a fellow juror even if you do not agree with it? [Yes sir, you can.]
Getting twelve people to openly committed to these ideas is a recipe for a hung jury. Although the lawyer still needs some facts to hang their hat on, the idea of empowering jurors to stand firm is a great strategy in the appropriate case. Regretfully for Joyce Buffaloe, the foreman of her jury had not been empowered, and other jurors not conditioned, to respect and protect the vote of a hold-out.

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