March 11, 2013

Use Juror Questions to Piece Together Your Case Challenges

By Dr. Ken Broda-Bahm: 

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I’m a little proud of the fact that, up to this point, I’ve managed to avoid writing about the Jodi Arias trial. But all that’s about to change, and not because of the volume of salacious detail that has emerged in the Arizona murder Defendant’s two weeks on the stand.  No, I’m writing now due to the more than 200 juror questions the Defendant answered over the course of two days at the end of last week. Charged with first degree murder in the June 2008 killing of her boyfriend, Travis Alexander (throat slit, bullet in the head, and 27 stab wounds), Arias is claiming the act was self-defense against an abusive pedophile. After facing the prosecution, she now faces a jury that appears to be just as openly skeptical of her story. 

In addition to gaining almost as much attention as the raunchy details in the Defense attorney’s direct and the prosecutor’s sustained grilling, the jury’s questions have also restarted the debate over the practice of allowing the jury to play an active role during the trial. Based on the volume of questions, the Arias trial provides a ripe opportunity to ask: Does it add value to allow jurors to ask their own questions or does it risk distraction and distortion of the jurors’ role? In this post, I’ll take a quick look at what the Arias questions might tell us about which perspective is more likely true, and also share some thoughts on how attorneys should be making use of these questions when they’re available. 

(More than) A Few Good Questions

For those of us on the civil side, it is no longer terribly unusual to see a handful of questions submitted by jurors and posed to a witness after being reviewed by court and counsel. But the dominance of the jury’s role in this ongoing trial is noteable not only for its venue (Arizona is one of only three states allowing juror questions in criminal trials), but also for its volume: 220 questions on the full sweep of issues covered in her direct and cross examinations. What has also been clear is the implication most observers have drawn from the content and tone of the questions. As the Arizona Republic noted, “The jury does not appear to believe her.”

Some of their questions had a clear mocking tone: “Did you ever see a doctor for your memory issues?” or “After all the lies you have told, why should we believe you now?” But the bulk of the questioning provides the kind of robust list of issues and challenges that you would expect to develop from a mock trial exercise. The questions echoed many of the themes covered in the prosecution’s cross-examination: why Arias didn’t report this history of alleged abuse to police, why she tried to cover up her trip to Mesa and other actions taken before the shooting, and why the fight that ended with Alexander’s death differed from all the other fights she claims dominated their relationship. Jurors expressed frustration with her abrupt memory loss, as well as her explanations regarding the “Law of Attraction,” or the belief that negative thoughts bring negative results (her reason for not documenting at the time many of the details that would have supported her testimony). 

There is no question that the jury’s list has been useful to the trial watchers across America, and also to the parties in the case. After questioning was done, for example, the Defense attorney circled back to many of the themes, giving Arias another chance to respond. But it is uncertain at this point whether that will be enough. Even as the Defendant remained upbeat, pleasantly answering questions with the tone of a job interview, the signs aren’t very positive for the Defense. As the Huffington Post noted, “the questions asked hold much more significance than the responses she gave because they show how much weight jurors are giving to the idea that Arias planned to kill Travis Alexander on June 4, 2008 and how little weight they are giving to her claim of self-defense.”

Do Questions Skew the Jury’s Role? 

As interesting as it can be, a jury’s role in conducting its own questioning isn’t universally supported. For example, former defense attorney for Michael Jackson and many other stars, Mark Geragos shared with CBS News some of the objections that lawyers are often prone to hold: “It becomes too difficult, too tempting for a juror to lose their role as an impartial fact-finder and slip into the role of an advocate, and I think that’s contrary to what the whole justice system is based upon.” Instead of passively receiving the testimony, critics say, the jury becomes actively involved in creating it. “In effect, you’ve deputized the jurors as investigators,” Geragos added.

There is some merit to that point. Once a juror is in the role of actively choosing questions to ask, their perspective is likely to shift.  My perspective, though, is that it is to some degree inevitable that they’ll be investigators and advocates, and is better for them to become that while they can still get additional information. If they find themselves in the deliberation room with perspectives unaddressed or questions that need to be answered, then there’s no recourse other than speculation.  

Chicago consultant Andrea Krebel (2012) makes this point in an article in The Jury Expert. Reviewing the state of court practice, as well as the state of the research, she makes the case for juror questions as a valuable part of the process. Looking at a number of studies testing the experiences of judges, attorneys, and jurors when questioning is allowed, she summarizes the benefits that tend to be realized: 

  • Better actual and perceived understanding
  • Better attention and engagement
  • Insight into jurors’ perception and comprehension
  • Greater satisfaction with the process and the results 

The perceived downsides (added time, loss of control, anger or distraction due to excluded questions, reduced neutrality) don’t appear to materialize, or at least don’t seem to loom large for attorneys and judges. Most who’ve experienced it (63 percent of attorneys and 69 percent of judges, based on the Seventh Circuit Jury Project Commission) support it. 

Use the Cues

The biggest advantage of juror questions is the ability it provides the lawyers to see the challenges and address them while there is still time. This appears to be how the attorneys on the Arias trial are using them, returning to the same themes in redirect and recross, and no doubt focusing on them in closing as well. “It really is a window into the juror’s mindset,” Phoenix criminal defense attorney Julio Laboy told CBS News, “It can help attorneys direct which way you need to go, what path you should take.” Attorneys should give equal scrutiny to those questions the judge allows and those that are set aside: If the jurors care enough to ask about it, then it is important by definition. 

Of course, it is possible to read too much or too little into the questions. For that reason, it is a good practice to involve someone who solicits and understands these types of comments and questions for a living: a trial consultant. After the Arias verdict is in, there should be a chance to find out from the actual jurors what they were after and to know what role the questions and answers actually played. But in the mean time, both sides need to interpret and react.

On the chance that the generally thorough job the Arias jurors did in this case raises the profile of the issue and encourages more states and judges to allow the practice, juror questions may continue to become more commonplace. In that case, the bread crumbs will be out there, and it is just up to the attorneys to follow them. 

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Other Posts on Juror Activity: 

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Krebel, A. (2012). Juror Questions: Why Attorneys Should Embrace Allowing Jurors to Ask Questions of Witnesses. The Jury Expert 24: 3. URL: http://www.thejuryexpert.com/2012/05/juror-questions-why-attorneys-should-embrace-allowing-jurors-to-ask-questions-of-witnesses/

Photo Credit: Rodaniel, Flickr Creative Commons

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