On Feb 15, 4:24 pm, b...@nyx.net (Barry Gold) wrote:
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >Mark Ferguson <washington_resid...@whew.com> wrote:
> >> If the officer mislead on one issue should he be believed on
> >> others?
That's entirely up to you, the juror.
> >> He claimed something I did not think was possible
Then you don't have to believe it. You are not required to suspend your usual critical faculties by being on a jury.
> >> but I
> >> was forbidden by the judge to find out and as far as he was
> >> concerned I would simply have to either accept it as fact or not.
As is usually covered by the judge's instructions, you the jury are free to believe all, some, or none of any witnesses' testimony, and are free to give it the weight you feel it deserves based on all the factors you would normally bring to bear in judging the probable truth of a statement.
If what you mean by "forbidden by the judge to find out" you mean you were told not to do any independent investigation of the facts, such as by consulting the web, a dictionary, or an encyclopedia, or going to the scene of the occurrence to see it for yourself (other than as part of a court-approved, group "site visit" by the entire jury), you are absolutely right.
That would throw an unpredicted and unwanted element of chance into the proceedings since the judge and the 2 opposing lawyers would have no control over the context in which you viewed the additional information, whether it was legally relevant or possibly unfairly prejudicial to one side or other, and moreover, they would have no idea that you DID it and thus would not include any of the facts you independently looked up in their summary arguments at the end of the case, where the lawyers present for the jury's consideration the way _they_ each see all the relevant facts fitting together and meshing with the judge's instructions on the applicable law. You, in other words, will have created a loose cannon on the deck of the ship of the law if you go running around looking stuff up on your own.
> >What did you want to find out and how would you do it? It's the
> >lawyer's job to introduce that evidence if he thinks it makes a
> >difference.
Stu is right, and this point is both important and often overlooked: a petit jury trial is NOT really intended, as commonly assumed by lay persons, to be a full-blown "truth-finding expedition" in any absolute, wide-ranging sense. Of course, the witnesses are supposed to tell the truth, not lie. But the overall picture being presented at a trial, by each side, is a carefully selected collage, cut and pasted from the entire universe of possible relevant facts to include only those facts that each side wants you to know about, because that side's lawyer thinks it will help them win the case -- WINNING is what a trial on the merits is all about, not "getting at the truth."
That's partly because, with all the pre-trial procedures in place (that the jury never sees or hears about) which winnow out for early disposition most of the filed cases, those that are clearly going to tip one way or the other, the cases that _do_ actually get to a contested factual trial on the merits (at least on the civil side) are those that reasonably COULD be decided in either direction without being unduly unfair, since the evidence is pretty close to being evenly balanced on those "scales of justice". (And in those cases, including a large number of criminal cases, that _are_ a slam-dunk cakewalk for one side or the other, questions of fine points of missing evidence such as that raised by OP really don't ever come into play).
Note, that DOESN'T mean that either side can get away with pure propaganda that whitewashes any warts on their own case and paints the other side as demons incarnate; if they try to do so, any halfway competent advocate on the other side will quickly call them on it and make them look foolish in front of the jury, losing all credibility, so the system tends to be self-regulating by reason of the push-pull of the opposing adversaries. If one side is asleep at the switch, though, such injustices can occur.
The legal proceedings that most closely match what most people consider a "truth-finding expedition" are the GRAND jury hearing considering whether probable cause exists to enter an indictment; the coroner's inquest (in GB and possibly some USA states) investigating the cause of a homicide to determine if any criminal charges should be brought; an inquisitorial (as opposed to adversarial) trial on the merits -- still common in juvenile court, family court, courts martial, and the Continental European "civil law" system; or pre-trial discovery depositions in a common law system. In those examples (except for the discovery process itself) there typically has been little if any pre-trial factual discovery, the persons deciding the facts are the same ones deciding the applicable law, and the factfinders (rather than the advocates) take a much stronger role in asking questions of the witnesses, trying to get rid of the chaff and find the kernel of what happened, looking for a basis on which they can decide the case.
Note, Monty Python and Joan of Arc aside, an "inquisition" doesn't just mean they whip you to make you confess heresy and then burn you at the stake if you don't. Its name simply refers to the "inquisitive" or purportedly wide-ranging and curious truth-finding nature of the overall proceeding.
In a common law petit jury trial, by contrast, the parties and their lawyers already know, before trial begins, what their opposing sets of evidence relevant to the various material facts are that they want the jury to find, since the _lawyers_ have already done the legwork of gathering what _they_ thought was relevant, and learned of the opposing party's evidence through pre-trial discovery of each other's documentary evidence and through sworn testimony already taken from parties and witnesses at depositions and through written interrogatory answers.
Thus, a modern common law trial is really a very carefully staged play, a theatrical event, at which each side's carefully chosen pieces of evidence presents, in toto, a narrative which that side wants you to accept as "the" explanation of the disputed factual question, "what happened?". The narrative presented is supposed to be based on TRUTH, of course, but it is a SELECTIVE truth. Anything someone else (such as an inquisitive juror) throws into the mix for the first time at trial would be like putting some improv standup comic on stage in the middle of a Shakespeare performance. All it can do is muddle things, not clarify them.
> I'm not sure what OP meant saying he "was forbidden by the judge to
> find out." There are mechanisms in place for a juror to ask questions
> of a witness -- usually submitting a question to the judge, and it
> will be asked if the judge decides it is relevant, competent, and
> material.
Absolutely. This has always been allowed at common law, in the discretion of the judge, and more and more judges these days are encouraging juror questions because even if the answer might be, "that's not legally relevant so we don't want you to consider that one way or the other during your deliberations", it sure helps both adversarial sides to know what it is that the particular jury WANTS to know but hasn't been told yet. Perhaps, if the juror's question is potentially relevant but not quite properly phrased, the lawyers can use it as a guide for asking further questions of the remaining witnesses in a proper manner that will (at least in part) respond to the juror's concerns.
> The advantage of this procedure is that it ensures that jurors -- who
> don't have a lawyer's understanding of what kinds of questions are
> allowed -- can't contaminate the proceedings with improper questions.
> The disadvantage is that it doesn't allow give and take -- if the
> answer is incomplete or otherwise prompts another question, the juror
> will again have to submit it, etc.
But some juries _do_ submit large numbers of questions -- hundreds, in one recent case I read about. There is at least as much back-and-forth with this procedure, cumbersome though it is, as in something like this moderated newsgroup, where you won't get an answer to a posted question for at least a day and an entire conversation may take weeks.
> I'm not sure what I would do if I submitted a question and judge
> refused to allow it. One option would be to simply assume the answer
> that is most harmful to the prosecution's case.
If there is a PERMISSIBLE presumption in that direction, rest assured the opponent will ask the judge to so instruct you. For instance, many states apply such a presumption against a party who has been found (by the judge) to have committed "spoliation of evidence", the technical term for Enronning or Ollie Northing your documents with a paper shredder, hauling the car with the defective airbag off to the crusher mill to be turned into tin cans, or pushing the "delete" button on electronic data.
Otherwise, you're not supposed to presume one way or the other, since that would be to base your verdict on a "guess, surmise or speculation" rather than hard evidence. Of course, if you feel that you NEED some essential factual element in order to find either way, and that element has not been presented to you in the carefully orchestrated trial you have just taken part in, the whole point is you then have to apply the BURDEN OF PROOF instruction given you by the judge; the party who had the burden to affirmatively establish that fact, and failed to do so, loses.
Perhaps that's what OP meant by saying he would intuitively hold the failure of proof against the prosecution; he would do so because it is the prosecution that has the burden of both coming forward with legally sufficient evidence to even present a disputed fact issue to the jury, and then of persuading the jury to actually believe that this evidence proves what the prosecution says it does. If they fail to do either of those, the defense wins.
You the juror may not know it at the time, but often one side (or both) at trial is FULLY AWARE that you are only getting part of the story you want to hear, and they like it that way just fine because they believe you will NOT be convinced by the sparse (or nonexistent) evidence actually brought out on a particular point by the party with the burden of proof, and thus they are confident you will rule in favor of the non-burdened party. As an example, criminal juries often want a definitive answer to the question "who dun it." Well, the defense doesn't have to prove that; rather, the proscution has to prove that the _defendant_ is who dun it. If they fail to convince you of that fact, you are supposed to find in favor of the defendant, even if the mystery hasn't been solved to your satisfaction and the answer you _want_ is still up in the air.
Real life trials are NOT like a Perry Mason re-run, where someone unexpected ALWAYS breaks down and confesses right there on the witness stand, freeing Perry's client; nor is it like a CSI episode, where the prosecution has definitive, scientifically overwhelming DNA proof that "defendant dun it." Circumstantial evidence is fine, if it doesn't leave room in the juror's minds for reasonable doubt about other possible explanations.
> But legally, it seems
> likely that the judge disallowed the question because it isn't even
> relevant -- or not material (doesn't affect the outcome) or not within
> the purview of the witness(*). So I should pretend that the question
> never occurred to me, I guess.
That's right. You can't ever "unring the bell", of course, but you can consciously decide that you will not include any speculation about the possible answer to that question as a basis for any of the positions you take in deliberations, or for your final verdict.
Another example: car crashes. In most states, any MENTION, by either party (within the hearing of the jury), as to whether or not the defendant had LIABILITY INSURANCE is completely taboo, and could spark a mistrial if a witness blurts out something or even a dismissal or default if the judge feels the party or lawyer did so on purpose.
Now, most people who drive know that most _other_ people who drive HAVE liability insurance. So, when those drivers get on a jury, what are they to make of the fact that insurance isn't mentioned at all, at the trial? This is a thorny area, since (especially with the recent "tort reform" propaganda poisoning juror's minds) many jurors come in with a preconceived notion that most plaintiffs are just trying to "get something for nothing", by seeking "pain and suffering" damages, since "of course" all their medical bills and collision repair have "already" been taken care of by the other guy's insurance and they just want to rub it in by asking the jury to give them the "cherry on top" which, jurors might then assume, will have to come out of the defendant's own pockets.
Of course, that is as far from the truth as could be: the reason there even _is_ a trial being held, is that there was NO pre-trial settlement with the defendant's insurance company (OR the defendant had no insurance, but the jury is not allowed to know which), and the insurer is making the plaintiff jump through all the hoops and prove his case to a jury before they -- the INSURER -- will pay the plaintiff a dime. Meanwhile, the insurer is paying for the defendant's lawyer.
Or, some jurors may assume the opposite. There was a post on this NG just yesterday by someone who apparently believed he was being cast to the wolves and would have to "go it alone", paying for a lawyer and/or any possible judgment against him out of his own pocket, where he recently got sued by a person injured in a crash even though the insurer's initial investigation "cleared" that poster of any fault in causing the crash.
My guess is, he figured the insurer was out of the picture after they made that determination and thus he was on his own. Of course, that isn't the case either; the insurer for the person sued will happily provide him with a defense lawyer free of extra charge in return for those premiums he's been paying, and (if the insurer contests the plaintiff's claim) they almost surely WILL force that claim to go to trial if they can't get it thrown out on summary judgment (but the insurer WILL pay a judgment if one is entered, after trial).
Jurors are simply not supposed to consider the issue of whethjer defendant had liability insurance one way or the other, not because it isn't a fact that most people already know OR that most people would WANT to know about a crash; rather, because the only possible conclusions they could draw from knowing that fact would be highly prejudicial to one party or the other, and legally irrelevant when all the jury were called upon to decide was whether the defendant was in fact negligent or not, and (if so) how badly the plaintiff got hurt, by putting a money value on it.
On the one hand, if they assume (or are told) that there IS insurance, the jury may tend to be MORE generous to the injured victim than they might otherwise be, since a mega-corporation, not Defendant Dave the Distracted Driver, is whose pocket the payments will be coming from. Judges generally quash this speculation with an instruction that "all persons, including corporations, stand equal before the law and you are not to take into account their social standing, their relative wealth or poverty, [etc] during your deliberations or in reaching your verdict; you are to base your verdict only on the evidence presented at trial."
OTOH if the jury assumes or is told there is NO insurance coverage for defendant's liability, they may (wrongly, in the eyes of the law) exonerate a clearly liable defendant and/or cut out some of plaintiff's damages claim, denying him some of the compensation he proved he was entitled to, simply because the jury presumed and didn't want all that money to be coming out of Defendant Dave's own pocket, as a presumed result of which he would lose his house to a judgment lien, his wages would be garnished, his children would starve, etc.
What's so hard about just not considering this fact, one way or the other, at all? That's what the judge tells jurors to do.
> What would you do if you had an unanswered question that mattered _to
> you_ even if the judge didn't think it material?
I would hope OP would nevertheless obey the judge's instructions and consciously exclude any speculation about the possible answers to his question from his deliberations on the issues he was selected to decide. But we lawyers know, from bitter experience, that there often are a few jurors who just don't get that message and who go off on a legally irrelevant tangent yielding unpredictable results.
With no particular person in mind, I will conclude that those who complain most loudly about "runaway juries" and "frivolous claims winning millions of dollars" or "murderers caught red-handed going free on a technicality" ought to take a close look in the mirror and see whether the outcomes of those trials they complain about would have been different, and more in line with their self-perceived concepts of ultimate justice, if the jurors in those trials _had_ more closely followed all the judge's instructions, including the ones to avoid any speculation about factual matters not in evidence.
--
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Mike Jacobs
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