Volume 20, Number 6
September 2003


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TRIAL PRACTICE

USING JURY FEEDBACK TO TAILOR TRIAL TACTICS

By Richard A. Ginkowski

Richard A. Ginkowski is a state prosecutor in Kenosha, Wisconsin.


For several years my office has sent "exit poll" questionnaires to jurors in cases we've prosecuted. From years of anecdotal research, we've found some common issues that should concern-—and challenge—judges, prosecutors, and defense attorneys:

  • Jurors may be candid about specific voir dire questions (e.g., "Are you related to any law enforcement officers or parties in this case?") but are less likely to disclose potential biases.
  • Jurors frequently don't hear, understand, or follow jury instructions.
    l In this age when television shows such as Law and Order can show a crime committed, solved, and prosecuted in one hour minus commercials, jurors expect that the case they're going to hear will be presented visually and efficiently.
  • Jurors don't like it when they perceive that lawyers and judges waste their time.
  • Prosecutors: Jurors often want to know whether the accused has committed similar acts in the past.
  • Defense attorneys: Jurors like to hear a defendant's version of the case—but if the defendant testifies, perceived untruthfulness could be held against the accused.
  • Judges: Jurors look to you for leadership.

Voir dire: Getting jurors to disclose biases. How extensive and probative voir dire is depends on the jurisdiction and the trial judge. When controlled exclusively by the judge, it's especially difficult to learn much. When lawyers are allowed to ask general "group voir dire" questions, the potential for candor improves but is still lacking. Individual voir dire is generally more probative, but also rarer. In my experience, the first round of voir dire questioning by judges usually consists of "stock questions" that seldom produce much in terms of a reasoned response. Jurors can feel awkward when asked generally if they have any biases. Here's where the prosecutor, who is usually second up to the plate, is challenged to confront these issues in human terms. Frequently I'll start out something like this:

I'm going to ask some questions to learn more about you and your qualifications to be a juror in this case. There are no right or wrong answers-we just want to find out more about you. We're also not here to put you on the spot. If, say, you don't want to blab to the world that your son got arrested for having pot, just tell us that you have something you'd like to discuss with the judge and the lawyers in the conference room. Let me start by asking, how many of you are Green Bay Packer fans? Okay, you can put your hands down. Now, how many of you like some other team? That's interesting. A few minutes ago the judge asked you if anyone had any bias or prejudice and nobody raised their hands. You see, a bias or prejudice isn't always something bad-like racial or religious discrimination-and everyone is biased to some extent. When I ask you questions today, please think of whether there is any bias or prejudice you have that might relate to something important in this case or your ability to be an open-minded juror.

Sometimes I'll have jurors disclose their feelings about a particular person, law, or issue. I then will ask the panel, "Does anyone else feel like this?" This occasionally inspires a dialogue among the jurors.

After going through my general and specific questions about the case and related issues, I'll focus on some issues related to how jurors perceive the trial and their responsibility: "How many of you watch 'lawyer shows' on television? Is anyone going to be disappointed if I tell you that this trial won't be settled in an hour minus commercials? Instead of being like TV, this trial probably will be more like putting a puzzle together. Not all the pieces may come together sequentially. Is anyone going to have a problem with that?" Next, I will take on some of the other juror concerns: "This trial is important to everyone. We generally don't get a second chance to present our case, so the attorneys are understandably concerned when something is happening that they consider improper. The judge will instruct you that lawyers have the right and duty to object. It's not that we're being rude when we do, but we're just doing our job."

Finally, although juror questionnaires and judicial voir dire usually ask whether prospective jurors can adequately hear or if they have any other condition that might prohibit them from being a juror, one point frequently overlooked is whether a juror suffers from a learning or other disability that might impair his or her ability to sit through a trial and recall the evidence. In a recent trial a juror responded to my question about learning disabilities to indicate that he has attention deficit disorder. The judge then told the jurors that they would be allowed to take notes and he encouraged them to do so.

"Don't confuse me with the law." In our research, we found that no matter how strenuously jurors are told that the prosecution has the burden of proof, the fact is that jurors to hear the defendant's story. Many times jurors have told us that they might have given a defendant more consideration had he or she testified. Of course, often there are many good reasons why a defense attorney may wish to counsel a client against testifying, but nonetheless the verdict in a close case could be tipped in favor of conviction when a defendant doesn't tell his or her story to the jury. If a defense attorney knows that the client won't testify, this subject may be something he or she may wish to spend more time on during voir dire. Bear in mind, though, that if a defendant takes the witness stand, his or her testimony must appear truthful and reasonable.

Another tiebreaker may well be "other acts" evidence. Jurors often want to know if there were prior incidents. In an elder abuse case that resulted in an acquittal, jurors asked whether the defendant had assaulted his mother in the past, even though such evidence was not allowed or introduced at trial. Most of the post-verdict questionnaires returned to me suggested strongly that introduction of "other acts" evidence might well have resulted in a conviction.

The judge as a leader. Judges routinely see their role during a trial as a referee. Although judges cannot and should not even appear to take sides during a trial, jurors look to judges for leadership. Probably the best way judges can do this within the bounds of the law is to be clear and concise in communicating with the jury. Judges should make sure that instructions are clearly written and presented.

Getting feedback. If permitted in your jurisdiction, exit polling jurors can, in time, provide helpful feedback. While personally contacting jurors after a trial may yield helpful information, questionnaires mailed to jurors with a stamped return envelope and the option to remain anonymous may be more effective.


FOR MORE INFORMATION ABOUT THE CRIMINAL JUSTICE SECTION
- This article is an abridged and edited version of one that originally appeared on page 76 of Criminal Justice, Spring 2003 (18:1).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/crimjust/.
- Periodicals: Criminal Justice, 64-page quarterly magazine; Criminal Justice newsletter, 3 times per year; White Collar Crime newsletter, 4-5 times per year.
- Books and Other Recent Publications: The Child Witness in Criminal Cases; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts; The Criminal Lawyer's Guide to Immigration Law: Questions and Answers on Representing Noncitizens; The Federalization of Criminal Law; The Environmental Crimes Case; Annual Survey of Supreme Court Decisions; Fourth Amendment Handbook, 2d ed.; Ethical Problems Facing the Criminal Defense Lawyer; Portable Guide to Federal Conspiracy Law: Developing Strategies for Civil and Criminal Cases; Practice Under the Federal Sentencing Guidelines; Juvenile Justice Standards, Annotated; ABA Standards for Criminal Justice; Less Boring Direct Examination (videotape); The Science of Cross-Examination (videotape).


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