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Questions, rabbit trails and how to know when a bear is “disturbed”

Wednesday, December 30, 2009
posted by Rita Handrich

Attorneys often ask how we keep mock jurors so engaged and focused over long days of evidence presentation and discussion. The answer is simple if a bit tongue in cheek: we keep them busy and they know there’s going to be a test (in the form of group discussion) at the end.

Obviously you can’t be handing out questionnaires and engaging actual jurors in discussion of their reactions to evidence presented as it unfolds at trial. But there are things you can do that dramatically improve juror focus and engagement. Here are two strategies to increase juror engagement.

Let them ask questions: In Tennessee, jurors can ask questions if the judge allows it. The questions must be submitted and attorneys and judge confer to determine legality. A recent jury submitted one question following more than an hour of testimony from a psychiatric expert witness: “Does he know right from wrong – yes or no?”. Juror questions can cut to the heart of the testimony.

If you can’t have jurors asking questions, use pre-trial research to identify what their questions will likely be and address those questions as you walk witnesses through testimony. “In your expert opinion, Dr., does the defendant know right from wrong, yes or no?” Answering the questions jurors wonder about ensures you more than likely know how the ‘holes’ jurors see in the story are being filled in. Jurors appreciate knowing the facts that matter—and when they do, it’s much easier for them to refute “conspiracy theories” or idiosyncratic interpretations of evidence in the deliberation room.

Identify potential rabbit trails: Jurors can be distracted by the oddest things! Part of your job is to ensure they do not wander off on “rabbit trails” that lead nowhere and are ancillary to the story itself. An example of this type comes from San Francisco and a jury deliberating on a charge of “disturbing dangerous animals” after a mentally ill man snuck into the home of two female grizzly bears at the San Francisco Zoo. The question was whether the defendant had known he was entering a bear enclosure. Jurors however, became preoccupied by how one would know if you had indeed “disturbed” a bear and eventually acquitted the defendant.

This is obviously an unusual story for a jury to hear. What is more important is that the jury became sidetracked and engaged in a lengthy discussion of how one knows if a bear is disturbed. Walking the jury through the charge via over-sized exhibits is a terrific way of helping them to focus their attention in deliberation. Let them know what the operative (i.e., important) terms are in this case. Then, when faced with a rabbit trail, jurors can appreciate the humor in a “define disturbed” segue but return quickly to the (relevant) task at hand.

Responding to juror questions by providing evidence and testimony to answer them allows jurors to focus on the facts rather than on their fantasies about ‘why’ certain things happened. Walking jurors through the jury charge teaches them what the task is they are charged with completing. Both of these tactics reduce juror stress and uncertainty as they walk to the deliberation room. Answer questions and give them direction. It’s not that hard.

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