By Dr. Ken Broda-Bahm:
The cooler sat in the courtroom throughout the trial. A 40.5 gallon Igloo fishing cooler, it was a key piece of evidence in the murder trial of an attorney, Tom Capano, charged with killing his lover who was the Delaware Governor's scheduling secretary. A recent story in Delaware Online focuses on one of the jurors, speaking out now for the first time almost two decades after the trial. That juror, Erin Reilly Lee, got inside the evidence -- literally. See, it turns out that the volume of the cooler was important, because Capano's defense was that his lover, Anne Marie Fahey, was actually killed by another of his mistresses in a jealous rage, and Capano said he just panicked and placed the body in the cooler without giving it much conscious thought. Cross-examination, however, focused on the fact that getting a body into that cooler would have been quite the chore, involving twisting limbs and breaking bones. It wouldn't have been, the state claimed, something planned and worked at, not the distraught act of a disoriented bystander.
So the juror, Ms. Lee, tried it out during deliberations. When the rest of the jury decided that she was the one most similar in size to the victim, perhaps even a bit smaller, she became the ideal candidate. And the verdict? "There's just no way," she said, and since the defense did not square with her own hands-on test, "you lose all your credibility." Capano was convicted and died in prison. That circumstance might have been unusual, but the motivation for jurors to try it out themselves is actually pretty common. I recall one recent case where we held a mock trial focused on the fit and retention system for a sports helmet. As samples of the helmet in question went back to the mock juries, we got to watch all three juries pick a person to try out the helmet as others tried to pull it off without unclasping it. Of course, jurors had heard about the company's own biomechanical testing, as well as the expert opinions from each side. But all of that paled in comparison to jurors' own ability to try it out themselves. That is something litigators should account for: If there is a way for jurors to test a case theory by manipulating the evidence themselves, they will do so.