Getting in Their Heads

Eric Turkewitz at the New York Personal Injury Law Blog published a guest post about whether jurors should be allowed to ask questions at trial. Apparently that doesn’t happen in New York. It sure does here in Arizona, as we’ve heard about ad nauseam because of the Jodi Arias trial.

The guest-poster, Peter DeFilippis, concluded that increased juror participation would aid their judicial system in achieving the goal of providing justice for all. I can’t say that I disagree. I am a pretty big fan of jury questions because they’re wonderful little spoilers that help you know where to focus. I can also see how they help to connect jurors to what’s happening. The insight into the jurors’ thoughts that a system like ours gives the parties is both a blessing and curse, however.

It’s a blessing when you know you’re going to win. Once, I had an aggravated assault on an officer and resisting arrest case where my defense was that the officers beat the crap out of my client and had him wrongfully charged because that’s what bad officers do. It was a little more subtle than that, but you get the point. Anyway, a jury question like this came up:

Did any of the officers get disciplined for beating up the defendant?

Yep, I won that one. No surprise there. It was nice to know I was on the right track.

In another one, however, the jury had me fooled. My black client claimed the white victim was a lying racist who refused to let my client ride his bicycle on the sidewalk and was about to attack him when my client had to stab him in self-defense. The victim absolutely fell apart on cross-examination, and we got a jury question like this:

Did you refuse to let that poor black man ride his bicycle on the sidewalk because you are a white supremacist or for some other reason?

I really pushed that point for the rest of the trial, but in the end, they convicted my client. It turned out that, after lengthy deliberations, they decided there just wasn’t any conceivable version of what happened that would justify a stabbing, even though they agreed the victim was a terrible racist who probably deserved to get stabbed. At least the judge seemed to agree, and the sentence reflected that.

It’s also a blessing when you find out what you need to address, which happens more often than not. Of course, in those cases it’s unclear whether they’re asking because they want to confirm what they already believe and are going to hold accordingly no matter what, or because you won them over by addressing their concerns. Regardless, it’s nice to have some input from the people in charge.

On the flip side, it can be a very frightening thing. It will occasionally give you a terrifying look into the minds of people with the power over life and death. You realize how people care about the stupidest things (was it domestic or imported beer that the defendant stole at knife point from the convenience store?) and that juries would nullify all the time if they only knew the punishment (is the defendant looking at a lot of time for this? Why are we having a jury trial for this?). You also realize that people want to be told what to do.

I could go on and on about jury questions clearly indicating a desire to defer to authority to avoid accountability for things they’d never consider doing if they felt personally responsible for the outcome. In cases where the crime is highly technical or terms are unclear, juries want to know what to do. They don’t think about how they should probably acquit if they’re unsure about something being a crime or not. Jurors generally don’t see a problem when they’re having to ask if something fits the definition of a crime or not.

Take this question, which came up in an “innocent possession” case (imagine you found a baggy of cocaine on a playground surrounded by little kids):

Is it possession even though the defendant only possessed it to turn it over to police?

The courts, of course, think that “possession” is a word “of ordinary significance” and too obvious to define in just such a case.

Or take this one, which involves a specific term:

Does giving a fake name for the officer to look up count as using any written document or electronic data for the purposes of the taking the identity of another law?

In that case, there was an unpublished decision directly on point as well as other authority suggesting it doesn’t count. The judge had already denied the motion for judgment of acquittal, though, and she didn’t answer the question because it went to the ultimate issue the jury was supposed to find; the same issue that case law explains the jury would be getting wrong if it convicted on the undisputed facts of the case. The jury convicted without delay, however, and I imagine the appellate courts are already hard at work figuring out how best to affirm the conviction.

As scary as it might be, at least it’s nice to know. Jury questions certainly don’t make it any worse for the defendant, and they might even help. Getting in their heads is worthwhile even though you might not like what you find.

See also: posts at a public defender and Simple Justice on the subject of jury questions.