I was listening to “This American Life” the other day and heard a story of how this person had defended himself in court and won even though by all accounts he shouldn’t have. The reason, the prosecutor said, was that the defendant had a huge amount of time in front of the jury and was doing a ton of objectionable things (like asking witnesses if they thought he was guilty, alluding to sentencing issues, etc). Why didn’t the prosecutor object? He did, but not as much as he would have liked to since he didn’t want the jury to see him as a bully.
Court in front of a jury is like theater and having spent a lot of time observing and as a juror at one time or another, I have decided that most of a jury trial is about connecting with the common people on the jury. The law hardly matters. Arguments that make perfect logical legal sense mean nothing to a jury if they don’t like the lawyer presenting them. I wouldn’t be surprised if lawyers sometimes bring in writers and directors to coach their presentations.
Another issue is one of sequestration. Juries almost never are sequestered in a hotel like they were in the old days. They are free to go home at night and are instructed not to learn about the case or discuss it. In the age of 24 hour news and google and facebook this is hardly realistic. In a very public case, it’s just plain silly to assume the jury is in the dark about the case outside the courtroom.
Thirdly is the problem of juries in long trials. I think that in long trials, juries become harder and harder to sway. After a while they simply want to be done with it all. So, when they end up in deliberations, it’s usually quick and there is no long discussions a la “12 Angry Men”.
Here’s another issue, bathroom and smoke breaks. A jury is subjected to rigid time rules set by the judge. There is a couple of breaks and a lunch and that’s it. If a juror has to go to the bathroom or wants a cigarette, they sit and wait. How much attention are they paying then?
Lastly is my favorite issue of all “the jury will disregard that statement”. Uh yea. Once something is said, it is out there. I’m sure lawyers on both sides of the aisle utter things out loud all the time in front of juries knowing full well they will be objected to. But the damage has been done already.
So how do we solve this? Glad you asked. It’s simple. We hold the trial normally except with one big change. No jury. The trial is captured on videotape. Once it’s over, it’s edited down so that there are no overruled objections (or no objections at all). There is no spurrious statements, there is no time wasted with sidebars and witnesses being sworn in, etc. The entire trial is packaged onto a DVD and then given to 12 jurors to watch in individual viewing rooms. They can pause to take breaks, and perhaps even rewind if they missed something or want to see it again. They don’t even know who the other jurors are until they finally meet for delberations after viewing.
Anyone else have ideas about this? Please comment or write me.