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Bar News - September 20, 2017


Opinion: A Peek into the Black Box of the Jury Deliberation Room

By:

I use my computer every day. I enter lots of information into that little black box on my desk. I have no idea how it works or what goes on inside. I usually get the result I want out of it. But sometimes I get an error message I can’t make sense of, or worse, the computer crashes. It is frustrating, but I continue to rely on that black box like my life depends on it.

Jury deliberations are similar. In this country, we have put our faith in the jury process for hundreds of years. During the course of a trial, we submit testimony, exhibits, arguments, and instructions to the jury. Twelve individuals then retire to deliberate in secrecy. After minutes, hours, or even days, the jury returns a verdict. Sometimes we get a version of that “error message” in the form of a hung jury. Still, no matter how confounding or frustrating the outcome may be in an individual case, we continue to rely on juries to resolve the most difficult disputes that come to court. Is this faith in the jury system justified?

My anecdotal experience over the last six years has only strengthened my belief that juries are the best way to resolve often irreconcilable controversies. Superior court judges have a special vantage point to evaluate the jury process. We handle hundreds of cases and can compare outcomes over long periods of time. In addition, it is my practice to talk with jurors after the verdict about their experience. I am mindful of the state Supreme Court guidance and procedural rules about when and how unrecorded interactions with sitting jurors should occur. Nonetheless, there are plenty of opportunities for a trial judge to interact with jurors who are fresh from completing their service. Contact with jurors in this setting is enlightening, and I would like to take this opportunity to highlight my three consistent observations about jurors.

I often hear lawyers complain that jurors do not pay attention to jury instructions and instead decide cases based on emotion. Because of this misguided belief, lawyers too often focus on the facts of the case without connecting those facts to the specific wording of the instructions.

Yet, time and again, jurors have told me how difficult they thought their job was going to be until they heard the instructions and actually focused on the elements of the crime or the civil cause of action. Jury after jury has emphasized how the instructions formed the framework for their deliberations. Jurors have described how they catalogued the facts supporting a particular element of the legal claim and debated whether there was sufficient evidence to meet the party’s burden of proof. When deliberations began to stray, they turned to the wording of the instructions and (where applicable) the definition of certain terms of art to focus their attention.

In particularly emotional cases, jurors have commented how they felt bad for the losing side, but emphasized how they set those emotions aside by relying on the law as set out in the jury instructions to reach their verdict. With this in mind, lawyers should craft closing arguments that focus less on the emotion of the case and instead use the instructions to help guide the jury to a verdict.

Lawyers also commonly lament how unpredictable juror verdicts are, even in apparently strong cases. Sometimes I, too, am surprised by a verdict. But each time jurors have been willing to share their thought process with me, I am struck that the jurors properly relied on the evidence and law given to them. They just viewed the evidence differently than I might have. Or they expected more definitive proof of a particular element than was presented during the trial.

It is important to keep in mind that for many jurors this is their one-and-only experience with the legal system. They do not see case after case involving similar fact patterns. They have not become hardened to the realities of how difficult it is to prove some types of cases. The lawyer’s sense of what to expect from the evidence in a certain type of case is adjusted by experience over time – a perspective that jurors do not have. Lawyers (and even judges) can become jaded from repeated exposure to similar facts.

When a jury reaches an unexpected verdict, it is important to remember that proof beyond a reasonable doubt is not measured by a mathematical formula. Even “preponderance of the evidence” has a subjective element to it (how much weight to assign evidence on each side of the scales of justice). Jurors are ordinary citizens who act as the conscience of the local community, assigning meaning (and weight) to the malleable concepts as they think justice requires from their own viewpoint as novices to the legal system. A skilled advocate must always be mindful to adjust the jurors’ expectations about what is required to prove a case taking into account the jurors’ limited experience with the judicial process.

Finally, it is often remarkable how much more information 24 eyes and ears can absorb than a single person can take in. Jurors often ask me if they got the right answer. I always respond by telling them that they saw the same evidence I did. Law school did not make me any better equipped to evaluate who is telling the truth than the 12 jurors chosen to decide a case.

My response often leads to a discussion about how the jurors put together the evidence in reaching their decisions. A particular case illustrates this process. I preside over a lengthy trial involving a serious home burglary. The defendant testified in his own defense. The jurors commented how likeable the defendant was and how much they wanted to believe his story. The jury room was crowded with charts and maps and phone records, which the jurors sifted through to test the validity of the defendant’s account of his actions at the time of the crime. The jurors noted how individual jurors remembered different pieces of evidence and testimony. It wasn’t a uniform memory of the evidence that brought jurors to their verdict. Instead, the jurors described how they reached their conclusion through a collective analysis of their individual interpretations of the evidence that irrefutably demonstrated the defendant could not have been far from the scene of the crime as he claimed.

Surely no system is perfect, but the jury process has stood the test of time. Day-in and day-out juries across this state prove their worth. Juries continue to function as designed, well into the computer age.


Hon. N. William Delker is the supervisory judge at Rockingham County Superior Court in Brentwood. He previously served as a senior assistant attorney general in New Hampshire.

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