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Bar News - October 18, 2017


Morning Mail: More Insights on Juries

I have “witnessed” over 150 jury deliberations, without ever breaking a law or committing a felony.

Let me explain.

Since 1975, I have been teaching for the National Institute for Trial Advocacy (NITA). NITA offers trial skills programs across the United States and overseas. As part of the program, jurors listen to “mock” trials performed by the participants, all of whom are practicing lawyers. The participants and faculty members then “listen in” via an audio and/or video link, or actually sit in the room while the jurors deliberate.

Even sitting in the room with the jurors, within seconds we are invisible, and the jurors feel free to critique the lawyers, the judge, and the courthouse, as well deliberate.

My observations of jurors’ interactions are consistent with Judge Delker’s, which he wrote about last month in the Bar NewsBench Notes” column. Here are some additional observations:

  1. The jurors quickly separate the facts on which they feel they can rely from the other facts. Generally, any “fact” that is corroborated by a contemporaneous exhibit, is a fact on which a jury seems to put great weight.
  2. Jurors can figure out the difference between a “fact,” an “inference,” and a “conclusion,” particularly when the Court gives them guidance.
  3. Instructions after closing arguments are helpful to most jurors, but are more efficacious if given before the closings. Indeed, there is some thought that jury instructions (or at least a preliminary set of instructions) should be given before the evidence starts and before opening statements.
  4. Jurors discount testimony without corroboration.
  5. Jurors discard “hired gun experts.”
  6. It is an unwise idea to put a criminal defendant on the witness stand, except in a homicide case. More often than not, jurors will not believe the defendant unless his or her testimony is corroborated, and the defendant is believable.
  7. In criminal cases where the defendant does not take the stand, the credibility of the lawyers, and particularly defense counsel, is significant and can persuade the jury.
  8. Lawyers do not know how to argue damages, or how to explain to the jurors that a verdict involving money damages is the “coin of the realm.” Hence, the more guidance the lawyers can give in suggesting a number and backing it up with why that number works, the better. Arguing jury damages is an art form in and of itself, and certainly the ability of lawyers to suggest a number is helpful in that process.
  9. Finally, and contrary to popular belief, note taking does not assist the jury or jurors, and results in a debate about whose notes are more accurate, which is a distraction from the jurors’ collective wisdom.

Judge Delker’s observations are spot-on, and I concur heartily that 24 ears and eyes generally miss very little and reach the right conclusion.

My final observation is that trials to a jury are like faith; you either have faith in the system, or you do not. If you do, you try cases to the jury. If you do not, you “settle.”

Robert A. Stein
Concord, NH

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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