Expert Witness Looks at a Jury From the Inside


Several years ago, I got called for jury duty. Unlike almost everyone else who complains when called for jury duty, I was thrilled. I wanted to be on a jury.

If I was going to have to do my civic duty, I wanted to get something out of it, rather than just sit in the jury pool room all week. After spending time testifying as an expert witness in front of juries, I would now have a chance to be the jury and get a real-life look at what happens in the jury room.

My wish was granted and I was seated on a jury for a misdemeanor criminal case that lasted about a day, then came the moment of truth. The jurors sat down in the jury room and looked at each other. It was clear that at least 10 of the 12 had no idea what was supposed to happen next.

I appointed myself foreperson and began leading the discussion. The facts of the case were pretty clear. The evidence was somewhat limited, and the case really came down to the testimony of the defendant and one witness. The defendant had almost no credibility.

His “story” didn’t make any sense, and anyone applying logic to his testimony had to conclude that he was lying.

We spent quite a bit of time trying to educate jurors about how they’re supposed to come to a decision. Yes, testimony is evidence. No, the testimony of the defendant and the witness don’t “cancel each other out” just because they say opposite things. Yes, we are supposed to use common sense and apply logic to what we’ve heard. Yes, we can and should assess the credibility of each person who testified when deciding whether or not we believe them.

I learned a lot that day during our deliberations.

1) Everyone won’t understand the basics about the case. It would be fatal to assume that jurors understand even one thing about the case or the issues at hand. The more complex the case, especially in terms of complex business transactions, heavily scientific evidence, or reliance on a significant amount of circumstantial evidence, the less the jurors probably understand by the time closing arguments end.

I argued with one juror for nearly an hour about what evidence was. He believed evidence included only the pieces of paper that were submitted by the prosecution. He did not believe that testimony was actually evidence. Even as I read the jury instructions to him, which stated that testimony was part of the evidence we should consider, he argued that it wasn’t really evidence.

If you’re lucky, you’ll have at least one person in the jury room who has a good command of the facts and is able to string together the logic of the case. What if you’re not so lucky? It’s anyone’s guess how a jury with little understanding of the case would actually come to a verdict.

2) Logic and reason don’t necessarily apply. Don’t expect that jurors will use common sense when assessing a case, be it criminal or civil. It’s not a given that they will be able to “connect the dots” in your case.

Even when asked to consider whether a particular part of the defendant’s testimony made sense, some jurors said that his story “could” have been true. When asked what the chances were, everyone agreed that they were slim to none. But that ever- so-slight chance that it “could have happened that way” equaled “reasonable doubt” to several of the jurors.

3) Jurors can (and do) believe one thing and cast their vote the other way. After deliberations had ended, I asked the jurors on the case how many believed the defendant really committed the crime. All of them said yes, but all had voted “not guilty.”

How is that possible? They voted not guilty because there was a “chance” that he might not have committed the crime even though their instincts and their analysis of the evidence said he, in fact, had done the deed.

4) We all watch too much television. From movies that sensationalize the jury process to news reports of a defendant being railroaded or improperly convicted, these kinds of things taint the minds of jurors. Jurors mistake “any doubt” for “reasonable doubt.” They don’t want to be the jury that got it wrong. They don’t want to send another person to prison when they’ve heard that the prisons are already overcrowded.

5) Jurors will let their biases rule their decisions. No matter what the jurors said during questioning, expect their personal biases to taint their decisions in the jury room. We had one person refuse to convict someone of her own race.

We had three people say they weren’t willing to “play God” with the defendant’s life, and that the Bible doesn’t allow them to vote “guilty” because that would be “judging” someone. One person suspected some grand conspiracy against this person and others similarly situated.

Even when it was pointed out that the jurors told the court they’d be able to convict someone if the evidence showed he was guilty, they now were saying that they didn’t care.

They were willing to do the opposite of what they said they’d do, because of their personal bias.

6) Uncertainty is certain. The only sure thing you know with a jury trial is that the outcome is uncertain. After my experience in the jury room, it’s no wonder that plaintiffs and defendants are most likely to settle their cases without a jury trial. There is no telling how a jury will view evidence, testimony and the attorneys presenting the cases.

This experience made me a better expert witness. It made me realize how important it is to make a connection with people on the jury. It’s important to reduce testimony to the least common denominator, explaining things in the easiest and most understandable terms. It’s never wise to assume that the jurors understand the facts of the case.

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