Friday, December 23, 2005

Why Criminal Defense Attorneys Hate Josh, Part III

"Dealing with Jurors' Expertise"
Leonard Post
The National Law Journal [click link for printer friendly version]
December 23, 2005

As blanket occupational exemptions for jury duty become a relic, litigators are split on whether there's a need for specific jury instructions to keep jurors from relying on their expertise in evidentiary matters.

One court system -- New York's -- instructs professionals to keep their expertise outside jury rooms. No other court currently singles out professional jury-deliberation conduct in jury instructions.

The issue is pressing enough that jury researchers are completing a research project that will recommend several jury instructions to let jurors know how they can use and not abuse juror expertise, rather than simply admonish them to pretend they are blank slates.

Automatic exemptions from jury service for certain professionals have been removed from most state and federal courts over the last several years as a way to ensure that juries are drawn from more representative cross-sections of communities. Courts have found that it increases the number of people available for jury service and spreads out both the educational value and the burdens of jury service, which may include time, expense and lost income.

POLICING VIOLATORS

Litigators disagree on the latitude professionals should be given.

Roger Crane, a litigator in Nixon Peabody's New York office, said the instruction gives New York jurors permission to police violators.

"If a juror has applicable professional expertise and uses that expertise to make a new point in deliberations -- which may be wrong -- there is no ability by either side to respond to it," Crane said. "The result is that you have a verdict based on one juror's conclusion -- not 12."

He noted that New York's jury instruction "warns the other jurors to guard against somebody making an argument in support of a position based on their own particular expertise.

"As a practical matter, the jury instruction is the weapon the judge is giving the other jurors to blunt such arguments: 'The judge has said you're not supposed to do that. if you keep doing it we'll report you.' That's a powerful tool," Crane said.

But Alan Klein, a litigator at Philadelphia's Duane Morris whose practice is now mainly products liability defense, does not want jurors with occupational expertise to be singled out in a jury instruction.

"The general instruction about being fair and impartial and weighing the evidence against their life experiences is enough. I like having an intelligent jury. I've never attributed a verdict -- win or lose -- to a juror going over appropriate bounds."

'A SOCIETAL BALANCE'

Ira Raphaelson, a litigator in the Washington office of O'Melveny & Myers, said that "[w]e need to struggle to find a societal balance between the interests of having professionals serve on juries and the dangers that ... [they] may hijack the jury process with misinformation.

"Hopefully, judges can instruct jurors in a meaningful way that just because a doctor is sitting on a malpractice case doesn't mean that the doctor's evaluation of the facts should be given more deference than any other jurors, while at the same time not giving the doctor's view of the facts less deference than any other juror," Raphaelson said.

Few appeals courts have attempted to draw a line that defines the limits of experience jurors are allowed to bring to deliberations.

In 2000, New York's highest court overturned a conviction for criminally negligent homicide because two nurses on the jury shared their professional opinions about the effects of blood loss, a disputed material fact that had been the subject of expert testimony.

The New York Court of Appeals, in finding juror misconduct, said that "Other jurors are likely to defer to the ... expertise and evaluations by professional jurors, over and above their own everyday experiences, judgment and the adduced proofs at trial."

The court acknowledged the conundrum faced by professionals: separating life experience from expertise, and that "the personal mental processes" of jurors would not be subject to impeachment. However, it held that "the substitution of [jurors'] own professional opinions becomes fatal when shared with other jurors." People v. Maragh, 94 N.Y.2d 569.

At the behest of the Maragh court, both the New York state civil and criminal jury commissions drafted instructions that differentiated between ordinary and professional opinions.

Civil: "[Y]ou may not communicate any personal professional expertise."

Criminal: "[I]t would be wrong for you to rely on that special expertise to inject ... a fact not in evidence, or an opinion that could not be drawn ... without that special expertise."

Judge Leonard B. Austin of the Nassau County, N.Y., Supreme Court commercial division who is a member of the state civil jury commission, presided over a business dissolution case in which the lawyers allowed an accountant to sit on the jury.

"Why they left the accountant on I'll never know, but the lawyers were quite satisfied," Austin said. He added that if he were a juror, he'd try, but he's not sure if he could separate his professional knowledge from evidence he had heard in a business case.

IN SEARCH OF A BETTER WAY

Most jurors would find the New York mandate to separate professional from other experience impossible, said Shari Seidman Diamond, a professor at Northwestern University School of Law who is a specialist in juror conduct.

Diamond, a senior research fellow at the American Bar Foundation who is conducting a study on the role of professionals in jury rooms, has been the lead researcher in several studies that have mined data from videotapes of 50 real voir dires, civil jury trials and deliberations in Pima County, Ariz., from 1998 to 2001, as well as questionnaires given jurors and judges after the trials.

Diamond is currently looking at the tapes to observe the interplay of occupational and work expertise on those deliberations, and has found that 22 percent of the jurors had occupational or work experience backgrounds that related to evidence in their trials.

"Jurors are told they're supposed to use their experience and common sense -- that may include their professional training," said Diamond.

"Even if we say 'Forget your professional knowledge,' jurors couldn't do it and I don't think it's desirable," Diamond added. "The question is where the boundaries are. We can't ask them to do things that are psychologically impossible -- we ask them to do enough mental gymnastics.

"I think we can do better than we do now [in most state and federal courts], which is not to tell them anything," said Diamond, who expects that at the study's conclusion she will recommend an alternative approach: instructing jurors how to deal more realistically with juror expertise and experience.

NOT A PROBLEM

California's high court saw its first occupational juror misconduct case in 1990, but found the error harmless.

In a capital case, a law enforcement officer told his fellow jurors that just because there was no evidence presented in the trial's penalty phase that the defendant had a juvenile record didn't mean he didn't have one, because juvenile records are sealed.

In fact, the court said, as a matter of law, juvenile records are not sealed for penalty-phase purposes. People v. Marshall, 50 Cal. 3d 907.

In California, juror expertise is covered in a general instruction, but with far less emphasis than New York's.

Wisconsin Circuit Court Judge Gary Carlson said jurors are told that they "may take into account their experiences in the affairs of life." He takes that to include anything they might know, including any particular expertise.

"Lawyers who allow a juror with professional expertise on a jury in a case that involves that expertise ought to have to live with the results," said Carlson.

"I would not give a special jury instruction because I would not want to single out a juror. 'Juror X, you may know things, but forget about them.' You'd be highlighting the issue," he said. "That juror may now feel compelled to bend over backwards one way or another.

"We don't want idiots ... . We want intelligent jurors who deduce facts and come to conclusions from everything they've come to know in life: background, knowledge, experience. I don't think we expect professional people to do any less. Why would we?"

Carlson differentiates between weighing the credibility of testimony they've heard and giving testimony.

"The trajectory of a bullet, for example, bouncing off this organ and that. 'You're a doctor,' a juror might say to another. 'Is that the way it works?' 'No,' the doctor says. 'The spleen's on this side, not that side. It couldn't happen that way.' That's a credibility issue," Carlson said by way of example.

In post-verdict discussions in a medical malpractice case, a juror who was an emergency medical technician volunteered to other researchers that he knew from his medical experience that the defendant doctor had caused a permanent limp by his improper treatment of a fracture.

"But what if his knowledge had come from a personal experience, say that his brother had had?" asked Tom Munsterman, the director of the Center for Jury Studies of the National Center for State Courts. "Could he have used his experience in that circumstance?"

Munsterman suggested that the fix might lie in allowing jurors to ask questions, which more and more courts allow.

"The EMT could have asked the expert why the doctor had chosen that course of treatment," he said.

In addition, Munsterman said, research has shown that juries are "very good at self-policing," deciding whether a particular discussion is allowed.

LAWYERS ON JURIES

Oregon has never had occupational exemptions, said Clatsop County District Attorney Joshua Marquis, who co-chairs the capital litigation committee of the National District Attorneys Association and is the association's vice president. That's fine with him.

"We want representatives of the community, not just retirees, government employees and people who work for huge corporations. We pay such crap," he said. He likes doctors, EMTs and nurses in particular.

"They tend to be practical people who know bullshit when they see it," said Marquis.

But he eschews lawyers who "cannot resist the temptation to insert themselves as litigators, especially if they weren't litigators."

He noted that the only murder case he'd ever lost had a lawyer on the jury.

"They're terrible jurors -- I should hit myself in the face with a stick if I ever let a lawyer on a jury again."

Marquis said he doesn't see how a jury instruction on the use of expertise would effect a cure.


further reading:
Part I
Part II
Part IV

2 comments:

  1. Can you say "Jury Nullification!?" Why aren't all juries told they have that power Josh?

    ReplyDelete
  2. Jury nullification is NOT allowed, at least in Oregon.
    Ever heard the expression "A nation of laws, not a nation of men?"
    It stands for the proposition that we don't allow individuals (including DAs or judges) to pick WHICH laws they want to obey.
    IF you are part of the legal system, as a lawyer, judge, or more importantly a juror it would be very wrong to say "Well I don't like all these silly laws protecting women from being beaten by their boyfriends. A woman who stays deserves that," or something equally lame.
    Jury nullification was used to make sure that the white men who murdered civil rights workers got off scott free.
    If you think a law is wrong you have a couple choices; you can decline to participate and tell the judge the truth: "I can't be fair, I think this is a stupid law," or you can work to change the law.

    ReplyDelete