The ABA Journal has this interesting article about how a law professor's article for the New Jersey Law Journal resulted in an overturned jury verdict. A New Jersey appeals court ruled that the professor's explanation of legal concepts to his fellow jurors had a tendency to influence the verdict.
The appellate court opinion, found here, overturned a trial court finding that the professor's involvement was not uniquely important.
I disagree with the appellate court's decision. Whenever a juror is selected to participate in a jury, he brings his own background along with him. The appellate court does not contend that the law professor was instructed not to use his legal background in participating in jury deliberations. Moreover, both sides decided not to use a peremptory strike to remove him. Having taken a calculated gamble that the law professorwould be favorable to their side of the case, I don't think that the losing party should be able to challenge the resulting verdict on appeal.
Do we really want to encourage every losing party and their counsel to run around badgering jurors about the deliberations in hopes of persuading one to sign an affidavit saying that someone used an impermissible argument? The law professor's explanations don't amount to extrinsic evidence being brought into the jury room, they're just another part of deliberations.
As a side note, why on Earth does New Jersey print its opinions on Courier type and underline case names--both of which make it appear that it still uses a Selectric typewriter to prepare its opinions? The typeface was very unappealing and hard to read. Additionally, as Justice Scalia notes in his book Making Your Case, there is no reason (or excuse) for underlining cases when italics are easier on the eyes.
How many jury verdicts are based on the "expertise" of a non-lawyer who convinces his fellow jurors he knows the law?
Not to mention the fact that historically, people adopted underlining when using typewriters because typewriters didn't have italics like the nice printing presses.
In other words, underlining became commonly used because a typewriter's font technology primitive for its day.
Now that it isn't, there is no reason to use underlining except ignorance.
I think it's a close case, but I'm ok with this decision. If I were the plaintiff's lawyer, I'd be really pissed off at this moron for his preening article about how much influence he had on his fellow jurors.
I'm amazed the lawyers for both sides let this guy through. I wonder if he had a reputation as a pro-business politician, and that's why the defense was willing to take him.
I forget the name of Learned Hand's opinion, but he wrote a great one about why we dont ever impeach the black box of the jury verdict. I think its right.
It seems that New Jersey has a different procedure that allows free-wheeling inquiry into what the jurors talked about. I can see downsides to treating jury deliberations as a "black box" that you can't inquire about. But, on balance, I think it's better than allowing what happened in this case. If you start reversing cases because a law professor explained his understanding of proximate cause, where do you draw the line? Every juror brings his ideas about the law or the facts, and most of them share it in deliberations. That's just part of the jury process.
So the Judge said something alone these lines in instructions to the jury: "You are to determine questions of fact. You must rely on me for questions of law, unless Juror #4 says otherwise as he's on the Court of Appeal above me."
Here is a post regarding a case from New York from a few weeks ago where the 4th Department reversed a teacher's convictions for first-degree sexual abuse and endangering the welfare of a child after teacher-jurors improperly testified that teachers are trained or informed never to touch students:
The Accusations Fly: New York Court Finds Teacher Jury Impeachment Was Proper
Some courts do use "privilege" language when discussing the anti-jury impeachment rule, but it is a rule of (in)competence, not a rule of privilege. If it were a rule of privilege, it would be waiveable and would apply at all proceedings.
For what it's worth, in McDonald v. Pless, the Supreme Court's last significant word on jury impeachment before passage of the absolute anti-jury impeachment rule, the Court found that:
and that the anti-jury impeachment rule it was adopting was only applicable in criminal appeals:
A bad idea to let lawyers serve on juries.
Now, (2), (4), and (5) are consistent with prior precedent, but jurors are generally allowed to impeach their verdicts based upon allegations such as allegation (3).
Indeed. And it's not just legal knowledge - if the case is about an 18 wheeler accident and a juror used to drive an 18 wheeler, the jury is going to be exposed to the viewpoint of an 18 wheeler driver. You can argue whether that is a bug or a feature, but it seems odd to be surprised by it.
Also, some fraction (half?) of people will just go along with any strongly presented opinion. I bet there are a lot of six person juries that happen to end up with one leader and five followers.
Well I guess that settles it :-).
Would you agree if there are allegations that the verdict was tainted by racial, religious, or other bias? See
Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense.
The other day Kobe Bryant had to show up in Santa Monica for jury duty, and was quickly excused. Some of the local newsies were all upset that he got out of sitting on a jury just because he's Kobe Bryant. Well, duh. Who the hell in the judicial system wants the sideshow of having him sitting in the juror box for a trial???
I can't imagine KB having any undue influence in deliberations - no, his opinion would be no less valid than any of the other 11.
Beuller? Beuller?
Jurors are supposed to be impartial, not ignorant. Knowledge of a subject area does not imply disposition for or against any party in a case.
It may turn out that a physician might be predisposed to find for the defendant in a med-mal case, but that can be handled on voir dire, and with preemptive strikes.
Isn't that another way of saying "they" didn't have any questions? IOW, individual jurors had questions but as they wrestled with it as a group, those questions disappeared. Obviously, in this case they disappeared because the lawyer/juror explained them. But are you really going to say that can be overturned, but the paralegal explaining the jury instruction shouldn't (or someone just convincing everyone else that his explanation is correct).
Sounds like deliberations to me.
Also note that the misconduct was specific to the juror's arrogating to himself, in contravention of the instructions, the role of "legal tutor" to the panel.
It is not like a nurse-juror who explains ER procedures during deliberation; or an engineer in a case about a faulty bridge; or an accountant in a tax case. Reliance upon a fellow juror to flesh out factual concepts is not what this opinion was about.
This is true, but for better or worse, when people study a subject long enough or have enough experience with it, they unavoidably form opinions about that subject. Some of those are the same opinions that most anyone would hold if they had enough information, and some are idiosyncratic.
I guess this just underscores the point that Judge Cassell and many of the commenters have already made: it's up to the lawyers to sort this out in voir dire, not up to the courts to enforce ignorance.
Obviously you would never want to prevent juries from using all their prior knowledge during deliberations. A jury that come from some kind of Cartesian position of pure ignorance could never conclude anything of use. Indeed, juries are expected to use their common sense experience, e.g., If the defendant was in Moscow 15 minutes before midnight he wasn't in Chicago at midnight.
Yet, for someone with a technical background many questions of science and technology are equally natural and are no less 'common sense' for them. Yet somehow when I go to a jury room I'm expected not to make use of this knowledge?
Not to mention the fact that the rule doesn't even make sense. What does it mean to say that I'm not allowed to use my expertise as a mathematician in the jury delibierations. Unless the court wants to instruct me to refrain from using logic I can just sit down and go through the proof of whatever mathematical issue is in question.
But this kind of thing comes up all the time, whereas hardly any court cases involve law.
I don't see why it would be any more acceptable for a lawyer than for a nonlawyer juror to do the same thing; all jurors are instructed not to do outside research. As for professional curiosity, there's plenty of time after the trial to google to one's heart's content.
When that happens, then an expert witness, not subject to direct or cross examination by either side, has become the deciding factor in the case. If he tells the other jurors that something is a fact, the parties have no opportunity to show why what he says isn't actually true in all circumstances (or any, perhaps). This violates the due process rights of the litigants, as well as the right to examine the witnesses against one. The juror becomes an (unimpeachable) witness in the case.
Isn't voir dire the time to pick a jury both sides think is fair?
I just don't see how you can keep the juror's experiences out of the jury room. If it's a traffic accident case, probably every juror is going to analyze what they heard in light of their own driving experience. If it was a boating accident, and only some of the jurors have boating experience, what are they supposed to do? Try to figure out what their opinion would have been if they had never been on a boat?
Some years ago, as a member of the jury pool (but not the jury) in a civil case I also saw a retired civil court judge empanelled on the jury. Not only was he a retired judge, but he was actively practicing as an arbitrator in the very area of law the case was about.
The judge in the case became visibly gleeful when he heard he had a retired judge on the voir dire panel. That was obvious to any casual observer. He all but dared either party to challenge the retired judge. I think if either party had knocked the retired judge off the panel, the trial judge would have made the trial go very badly for his client.
The trial judge seemed to be of the opinion that a retired judge on the jury would reduce the temptation for either side to make specious arguments to the jury, and would speed up jury deliberations. I didn't stick around for the rest of the trial, so I don't know what it was like. But I did hear afterward that the jury returned a verdict very quickly.
However, if this were an embezzlement case and I, as a software engineer who builds accounting software, were to explain accounting principles to jurors, would that lead to an overturned verdict? Why or why not? What if I am just a small business owner but know enough GAAP to run my business? Where does this end?
Can we have jurors self-disqualify by simply signing an affidavit that they have specialized knowledge relating to the matter in question?
I went in with a jury to deliberate years back, and somebody was confused, about some verbiage on the juror form I believe it was. So one of us had the bright idea to ask the bailiff for a dictionary so we could educate this guy. Big mistake. Next thing you know, we're hustled back in front of a courtroom full of surly staff, called back from lunch I suppose, and an equally surly judge, in need of a decent haircut, which we may have unwittingly postponed. So he reads us back the long jury instruction monologue, and sends us back in, dictionaryless.
I don't think those guys want anybody encroaching on their turf in matters of law, lawyers or no.
Let's suppose he didn't tell the other jurors anything, but simply applied his own knowledge to his own internal deliberations. Would anybody argue that that was a "due process violation"? Obviously not. But wouldn't that also deprive the parties of the opportunity to show why what he thinks isn't actually true? What's the difference? Surely the issue can't turn on whether his allegedly-mistaken beliefs influence one juror or six jurors, can it?
and
I think those judges should be spanked :-)
IIUC, judges like to use time tested boilerplate to prevent appeals - but when you have a jury struggling to do the right thing, and they can't make sense out of the boilerplate, the judge has a duty to try and provide better instructions. Just repeating the boilerplate ensures that the jury returning your verdict did so without understanding the instructions.
I am not entirely sure. Suppose we have an embezzlement case. Suppose I have a fair degree of accounting process knowledge. Suppose there are big arguments in court over what accounting best practices and industry standards are. Is it improper of me to discuss accounting procedures with fellow jurors especially where they may be quite technical? Or suppose there are securities fraud cases and I know relevant FASB rulings off the top of my head. Would it be improper of me if I point out that the defence misrepresented these rulings because the issue was clarified in later FASB rulings that neither side mentioned?
Suppose you have a medical ethics professor on a med-mal case and nobody strikes him. Should he be prohibited from explaining what the standard of care in a given place (in his opinion) is to fellow jurors?
When you have legal doctrines which basically say that certain groups of best practices must be followed, where is the bright line between discussion of legal concepts and discussion of concepts relating to these best practices?
This inevitably leads to a rule where one cannot serve on a jury if one has specialized knowledge relating to the best practices if such is decisive to the case in question.
Any argument to the effect that more knowledge is always better or that juries are after the objective truth seems to me to be inconsistent with that.
In every court case I've seen (as a 3L, so no large amount I will admit), strikes were handled outside of the jury's presence - at the very end of it they brought the jury back in and said #'s 1, 3, 5, etc. are serving, the rest of you back to the jury pool room in the basement of the courthouse.
jury returning your verdict did so without understanding the instructionsCourt of Appeals will not spank you.Locality must matter; the handful of times I've been there it was done with the prospective panel there. Arguments for cause were in a sidebar, IIRC, but peremptory challenges were right out in front of everyone. I wouldn't think it was likely jurors would care which side tossed which prospective juror; they're too busy praying they will get the tossed themselves :-)
The solution to the "juror asserts for sure that he knows something that isn't so" problem is to permit the jury to do research. However, that just increases the amount of possibly invalid, not subject to adversarial scrutiny, the jurors see.
It's a terrible system. The only thing worse is all the others.
But I do agree that one thing needs fixing -- judges should make sure that juries actually *understand* the relevant law. Not that they have a technically correct statement of it, that they understand it. Failing to do that is failing to do the job of a judge.
I will concede that my own view is a radical and inflexible one which does not reflect the consensus or general standard of care common among trial lawyers in my community, so I won't call it "malpractice." But I repeat my comment on last week's thread that any trial lawyer who willingly permits another lawyer onto one of his jury panels is taking a huge and foolish risk. I might indeed be persuaded to take a truck driver in a truck accident case, or a doctor in a med mal case -- although I doubt it. But the single rule of jury selection which I regard as categorical, never to be broken, is: "Don't let a lawyer on a jury if you can possibly help it."
C Miller (3.20.2009 12:28pm) is right on the privilege/competency issue, at least in Texas practice. In the prior thread, I linked Tex. R. Evid. 606(b), which reads:
A witness consulting a newspaper or dictionary himself is a classic example of disobedience to the court's instructions, but unless someone outside the jury influenced him to do so (e.g., by putting the materials into his hands), that's not considered "outside influence" as the Texas caselaw has interpreted that phrase in this rule. Obviously other states' laws may differ.
Re comments by Anonfun (3.20.2009 1:50pm) and others about what other jurors might presume about one side challenging or striking a lawyer or judge:
I know that some states permit prospective jurors themselves -- and indeed, the entire venire of prospective jurors -- to know which side has made which challenges for cause and to hear the grounds for them. That's entirely unnecessary and utterly foolish; I can't think of a single justification for sharing that knowledge with prospective jurors (although I'm willing to be educated if someone else can come up with one).
By contrast, the normal practice in most Texas courtrooms is that challenges for cause are made at the bench, outside the hearing of the jurors so challenged, and that any jurors excused for cause are released simultaneously with jurors who've either been stricken with peremptory challenges or not reached. Thus no excused prospective juror knows for sure whether he was excused by the court or peremptorily struck, and no one actually on the jury knows that he was the subject of an unsuccessful challenge for cause. Challenging anyone for cause within the hearing of the entire venire will, at a minimum, mark you as a courtroom rookie in Texas, and is likely to result in a severe dressing-down by the judge.
Houston Lawyer wrote (3.20.2009 11:47am): "From attorneys I've known who served on juries, the presence of a lawyer was a force for good." All I can say is that on the one occasion on which I've been on a jury, it was almost impossible for me not to commit jury misconduct by giving legal advice, since every one of the other jurors pleaded for me to do so and, indeed, they elected me the presiding juror. Precisely because I was trying to be a "force for good," I ended up giving my own views on every subject last, and briefly, but they still overwhelmed the any competing views that had been expressed and instantly became the "jury consensus."
And as I said in last week's thread: I don't want any other lawyer to have the unlimited opportunity to continue to argue the case to the other jurors -- in secret, AFTER all the other lawyers (including me and my in-court opponent) have had to sit down, and AFTER there's a judge present to hear and rule upon objections. That lawyer's idea of what's "good" might or might not be predictable to me or others from his practice area and professional history; but regardless of that, I simply don't want to permit that big a variable, over which I have little to no control or even influence, at that stage in any case!
Off topic but best line in the thread.
The entire notion is not that the jurors are smarter or in the best position to find the truth...if we wanted to get to the truth in every case we would hire professional jurors to sit on complicated sorts of cases like patent or anti-trust or toxic torts. And then we would make them write a report of their findings so that appellate courts could scrutinize those decisions and make sure that they were at least well reasoned as to any controversial aspect.
No, we have created Learned Hand's "black box" because we *want* the jury occasionally to achieve "illegal" results. It is an acceptable outcome -- although no lawyer or judge may encourage it -- for a jury to nullify a conviction or civil claim. Whether you call it "jury nullification" or the "mercy function" or a "public check on judges", it is the understood right of the jury occasionally to act renegade. Why? Because the founders didn't trust judges to do the job. And We the People do not trust politicians to make perfect laws. The existence of jury's then, is not to arrive at truth, but to imbue the process with the policitcal LEGITIMACY that no king or judge can ever have.
Now...in order for that to work, the jury has to have some rules to protect it. One is that they are *presumed* to follow all of the legal instructions given by the judge. That's because the appellate court can always evaluate what instructions were given. If the jury goes renegade, that's on their own time and not subject to reversal. If we made the verdict subject to reversal, then the whole point disappears -- the judges take back control.
Another is that the jury can't look outside its own box. Once the jury lets in outside evidence, then foreign information is introduced. For example, I'm a former criminal prosecutor. I can draw some execllent inferences about the "true" facts based on how information is presented (or NOT presented). Even if I am 100% right that the defendant had a big bag of drugs in his pocket that we didn't hear about because the police conducted an unconstitutional search, does that mean I should share that with the jury? No, because that would prejudice the defendant's rights. The solution is that I am sworn -- like every other juror -- to take the judge's instructions at face value and not to speculate about facts not in the case. If you can't do that, you shouldn't be on the jury.
The end result is that if we want the jury to have a mercy function at all, then we need not to look inside its deliberations unless something unusual happens. In order to not look inside, we need to know all of the inputs to the black box (evidence + legal instructions) in order for the appellate court to be able to review the conduct of the trial. When outside experience or information intrudes, it breaks the box open and ruins the balance that keeps jurys independent.
So go ahead. Defend the schmuck who had to be smarter than the judge -- he probably was. But recognize that you are trading back one of the most fundamental assumptions of the founders when you do.
If you had a choice (with one preemptive left) to take the medical ethics professor or the tax law practitioner in a med mal case, which would you choose? ;-)
Of course in this case, the juror noted that both sides could have struck him but didn't so that is a very, very different thing.
I think you are missing one big factor: the appellate court can reverse a conviction or a finding for the plaintiff but not a finding for the defence. The idea is that this is a check against politically mandated convictions by a central government, not that this is a matter of judicial control absent other considerations.
Ok, but back to my FASB example before. Suppose the argument is that a company committed securities fraud and the central argument is over whether certain FASB rulings were followed properly and in good faith. Suppose I know that they were and that this is further shown by later rulings (after the alleged misconduct) where the FASB offered additional guidance that the procedures under question were proper. Or suppose I tell the other jurors "no, it is not proper under American rules, but it looks like they followed IASB rules instead, which was not brought up but it looks like a good-faith mistake to me. I don't think this is fraud."
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IMO, yes, as you're introducing matters of law, and not just factual interpretation, matters of clarity, illumination, etc. If I were you, I'd have to send a message to the judge explaining the ethical dilemma here, and you do pose a good one. (Of course, as a smartass non-lawyer, I'm prone to crack that there's no such thing as an ethical dilemma amongst lawyers ! )
One other thing from another panel I was on. A juror (hamhandedly) tried to play lawyer and make a case in delibs, and I mentioned that the real lawyer, acting within the bounds of the process, didn't/couldn't/wasn't allowed to make that case, so why should she? Maybe I'm too trusting, but I do believe we're in that juryroom to respect the process that took place out in the courtroom, and give it full validity, not add or subtract from it. Both sides already took their shot, and there's no fair way to try the case afresh in the jury room. Introducing points of law does seem unfair somehow.
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ein: "Suppose you have a medical ethics professor on a med-mal case and nobody strikes him. Should he be prohibited from explaining what the standard of care in a given place (in his opinion) is to fellow jurors?"
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Standard of care? Yes. Legal standard of care? No.
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ein: "When you have legal doctrines which basically say that certain groups of best practices must be followed, where is the bright line between discussion of legal concepts and discussion of concepts relating to these best practices?"
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I don't know, there may not be a bright line. But you've bundled up the issues nicely, and I think illuminated the problem lawyers must be facing here (and perhaps other professionals). No bright line here, but you've outlined the red "zone". Excellent post.
In Wisconsin, we make our challenges on the jury list, then the judge reads the names of those jurors selected – thus, no-one on the panel knows who dumped a particular juror (I wonder whether this is how challenges are made in other jurisdictions?)
(I removed 'or information', because I agree about that, as far as research done after the jury is picked)
How can people exclude their experience? We (almost) all have the experience of driving, if it is a traffic case. If the jury is supposed to decide on the relative credibility of two witnesses with conflicting testimony, where neither version is contradicted by hard facts, then what besides their experience of human behavior are they supposed to use to decide?
If Elizabeth Loftus makes it onto the panel in a case where eyewitness identification is important, how can she possibly rewind her mind to the point before she started her research? How can a cop act as he would have before starting the academy? How can a lawyer act as he would have before law school? How could any of us put aside our experiences over the years in traffic?
I'm really trying to understand what is supposed to happen in the jury room, trying to decide who was at fault in the accident, given the facts presented, but with all the jurors trying to exclude their personal knowledge of driving.
In my jurisdiction, it is up to the judge to determine how they want to do jury selection, including both voir dire and peremptory challenges.
I have personally been involved in trials where there have been 12 jurors in the box and the rest in the audience--and when using a peremptory challenge you are taking a crapshoot because you do not know which person in the audience will replace the excused juror.
On the other hand, I have also been involved in trials where a panel equal to 12 jurors, 1 or 2 alternates, and ALL of the peremptory challenges is qualified. In this model, there is much more strategy involved, since the juror you REALLY, REALLY want may be in the 16th or 17th position and you have to strike other, otherwise-acceptable jurors to make sure the one you want is seated.
I have had cases where peremptory challenges are done verbally, so that everyone, including the juror being struck, knows which lawyer didn't want which potential juror. I have also had cases where the clerk has a list and you somehow indicate on a piece of paper who you want to strike.
Because of the potential for Batson issues, I prefer the jurors NOT know who struck them. A piece of paper being passed back-and-forth allows a Batson objection to made and ruled upon without the jurors knowing anything is going on.
Yes, it would be improper. You have no way of knowing whether those subsequent FASB rulings were merely not discovered by the lawyers for each side or whether there was some reason tot go by the earlier rulings. For example, precisely BECAUSE the guidelines in place at the time of the alleged fraud were unclear, it may be that the defendant isn't guilty of fraud for doing things one way. But if subsequent FASB interpretations clarified the matter to clearly declare that the way the defendant did them was the wrong way, some jurors might improperly use that against the defendant, even though the rule wasn't as clear at the time of the defendant's actions.
Yes. Standard of care relates to a locality, generally speaking. The doctor in a small rural hospital is held to a different standard of care than the doctor in an urban trauma center who has access to the absolute latest and greatest technologies and training. Both the plaintiff and the defendant undoubtedly provided expert testimony as to the standard of care for that field of medicine in that area of the country and state. Both plaintiff and defendant had an opportunity to cross-examine the other side's experts. Other medical ethics professors undoubtedly have opinions different from those held by the professor who is (unwisely) on the jury. His should not be definitive (and given human nature, they usually will be in this context) simply because he wound up on the jury.
Yep. That should be the rule. Situations where the "facts" known by the expert-juror are truly as clear and incontrovertible as 2+2=4 are exceedingly rare. Most such "facts" as I've seen discussed in both this and the other thread are not "facts" at all, but opinion dressed-up as expert "knowledge."
Jurors are to bring their everyday knowledge and common sense into a case. That's entirely proper; the jury system depends upon it. When one juror claims "expert" status in some relevant field, claims knowledge not possessed by any of the other jurors about a significant issue in the case, the other jurors are very likely to be heavily influenced by this "expert"... This renders it, functionally, a jury of 1, not of 6 or 12.
No, there's no hard and fast line one can draw between permissible "general knowledge" to be brought to the table and impermissible expert knowledge which should be left out of the jury room. But the absence of a bright line doesn't mean there shouldn't be a rule at all.
No, the expert should share his expertise and stand his ground. But the non-experts should be very skeptical of this purported expertise, which they have no way to verify, and stand their ground as well.
The non-experts must say: "I have no way to know that what you are saying is correct, so I cannot form my opinion based on it. Sorry. I will have to make my judgment by the facts that are in the record."
Remind me never to hire you :-)
Then based on your views, one can never sit on a jury if one has expert subject matter knowledge in a related topic. Otherwise one is either sworn to vote the evidence AS YOU SEE IT and persuade other jurors to do the same. I will buy that argument as long as the judge lets jurors speak up and excuse themselves from jury duty on this basis. (Your honor, I am an IT consultant but I work on accounting systems so I really shouldn't be on this embezzlement trial.) Otherwise there really is absolutely no way to ensure you don't have expert jurors.
I know lawyers really try to avoid such folks on a jury most of the time. However, once someone with such knowledge is on a jury, and is unchallenged.... Furthermore, for reasons which are epistemological as opposed to merely practical, it is impossible to keep such knowledge out of the deliberations once such a juror is impanelled.
This is why I asked for a bright line.
If I (with FASB/IASB expert knowledge) say (in the security fraud example). "Not guilty, and I can't tell you why because that involves pre-existing expert-knowledge," is that better or worse?
But what if a juror's everyday knowledge happens to include something covered in testimony during the case? This is not hypothetical, either. I was a member of a general court martial panel (jury equivalent) when a witness testified concerning a conversation with his commanding officer. I knew the testimony was inaccurate, because I happened to be in a meeting with the commanding officer at the time the conversation took place (it's a small world sometimes).
I dragged my heels at the next recess and once the other panel members left the room, told the military judge I needed to let the court know about this and let them handle it.
PatHMV:
"That should be the rule. Situations where the "facts" known by the expert-juror are truly as clear and incontrovertible as 2+2=4 are exceedingly rare. Most such "facts" as I've seen discussed in both this and the other thread are not "facts" at all, but opinion dressed-up as expert "knowledge." '
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It's likely more subtle than just presenting the "facts", though, and an arithmetical expression of that process is far too simplistic. It's opinion based on experience, and a temperament and a manner of thinking shaped from working with facts, and giving them appropriate weight.
Now, if a lawyer wants to throw that guy off, fine, let him. But since he's doing it for his own selfish reasons, to help his case, he should bear the cost of this, and we have no need to create a rule.
One more jury story. I once sat on a traffic fatality trial. Teen was racing down a neighorhood. street, hit a standing car, and died, and his family sued the other car's driver.
Defense brings in a traffic engineering proffy with a CV as long as my driveway, documenting the kid's speed was between 55 and 72 MPH. Plaintiff brings in family and friends and extra boxes of crying tissue, as well as circumstantial evidence that during the incident,the other car's driver was being serviced by a woman of ill repute.
I'm a civil engineer, and you can guess which testimony I found strongest. As his case was clearly leaning toward the emotional, that defense lawyer shoulda thrown me off, for his own reasons, and his mistake likely cost him at least $1M, and up to $5M, I estimate, because there was strong sympathy on that panel to award, until I gave weight to the evidence presented. But it should be his choice, not the law's, to throw me off.
Poor slob, I felt sorry for him. And the defense was giddy, they knew they got lucky, as awards in this county trend the other way for sure.
I'd just leave all this with the lawyers, and let them strategize their selections based upon their needs.
In the civilian world, IMHE, you are excused if you have so much as a nodding acquaintance with any of the principals, witnesses, the bailiff, ...
Let's also say I get on the jury hearing the case.
I operate both Crown and Raymond VNA trucks for a living.
I have personally experienced a Raymond truck descending fast enough to be potentially injurious.
I have also held conversations with the maintenance people at work and they are unanimous in opining that the Raymond trucks are 'cheap junk' when compared to the Crown trucks, never mind the Lansing's we used to operate.
Would it be wrong for me to bring my personal experience and knowledge of Raymond trucks up during deliberations?
To the point, if the Raymond Corporation claimed they had no knowledge of VNA trucks dropping at an abnormal rate of speed, would I be wrong in calling 'BULLSHIT' and pointing out that Raymond factory techs spent a week at my employer retrofitting the trucks with a sensor package to prevent high speed descents?
ITYM "that plaintiff lawyer", as it appears you influenced the jury to find for the defense.
I am reminded of a line in the mystery Trent's Last Case. Trent asks his friend Cupples whether he, as a juror, could have believed the fantastic story of an apparently guilty but actually innocent suspect. Cupples replies that it is a useless exercise, because he would not be a juror, but a witness - he has personal knowledge about the case, and would have to testify.
If one has personal knowledge about the facts of the case, that information should be presented as a witness. If one takes that knowledge into the jury room, then one becomes a crypto-witness - not on oath, and not subject to cross-examination.
In the specific case mentioned, it would be up to the plaintiff's attorney to establish the defective quality of Raymond VNA trucks, and to impeach Raymond's defensive claims.
If the plaintiff fails to do so, then the plaintiff would lose - barring the miracle of having a favorable witness on the jury. It is not the job of jurors to remedy the defects in either party's case.
Perhaps not. On the other hand, though, it IS the job of jurors to strive for a just and equitable result. We don't have jury trials for the love of the game, we have them because real people have real disputes resulting from real harms. If we say that adhering to the process is more important than achieving the correct result, then we've missed the point somewhere.
"We all know you ought to win but your lawyer wasn't as good as the other one so you lose" is not a desirable verdict in a properly functioning system of justice.
Part of the problem here is philosophical. In your ideal world we would have intelligent but entirely ignorant jurors looking at the evidence without ANY reference to contexts from past experience. Unfortunately this is fundamentally impossible.
The fact is that every juror brings with him/her a pre-existing context into which all of the facts presented are mixed in the course of pondering and deliberation. This is the process by which ALL human quests for theory follows, whether it is in the science lab, the philosophy classroom, or the jury room. In essence EVERY juror is a crypto-witness which seeks to apply his/her own experiences and pre-existing sets of views against the evidence to determine whether the individual is guilty or innocent.
"I know of financial rules which might suggest this is a mistake rather than fraud" or "As an automotive engineer, I can tell you that this piece of evidence suggests mechanical problems with the truck" might not be that different from "I heard the witness testify and he seemed credible." In both cases, the substance of the decision is made on the basis of past experience not subject to cross-examination.
In short the juror's evidence pool starts out contaminated, but it can't function without that contamination. If you want to ensure you never have specialized knowledge on the juror pool, the only thing that can be done is allow jurors to self-disqualify themselves.
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