Defending People

Anne Reed writes at Deliberations about The Dysfunctional Jury. She asks, “what can you do about it?” and suggests:

1. Watch them . . .
2. Teach them. If you need consensus and unanimity, use your closing to offer the group tools to get there. . . .
3. Coach them. On the other hand, if you know you may need a holdout to hold out no matter what, you can use part of your closing to challenge jurors to rise to the kind of resolute conviction that holding out requires, while patiently defusing the chaotic atmosphere that can make holding out more difficult.

In criminal jury trials, it is usually the pro-state jurors who are bullying the pro-people jurors into changing their decisions (why? maybe because compassionate jurors are more likely both to vote “not guilty” and to respect others’ rights to their own opinions). We can protect the pro-people jurors by creating a environment in the jury room in which bullying and other uncivil behavior is unacceptable.

That, we can do by describing at every opportunity, from voir dire to closing argument, what will happen during deliberations in terms of polite discourse and respect for the views of others. Yelling and cursing should be unacceptable in the jury room; inside voices and taking turns should be the rule. If the jurors are conditioned to think of deliberations in those terms, they are more likely to follow the ordinary rules of social behavior (which we all learned in kindergarten) in the jury room.

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