DTCI: Well and truly tried

Bobby J. Avery-Seagrave

They picked me. What were they thinking? As I sat in the “box” listening to voir dire from both the prosecution and defense, I reflected on the very slight likelihood of being chosen. While I was the 10th person called into the box for jury questioning, I thought my background as a defense trial attorney, coupled with the fact that my husband is a police officer, would be more than enough reason to be struck as a juror for a criminal murder trial. I thought wrong.

For the next five days (promised as only a three-day trial in the beginning), I was at the mercy of a Marion County Criminal Court as a juror. I arrived each morning as I was instructed, took breaks when the court permitted, and my day was over only when the court said it was. Even though I have experienced the rigors of trial from behind the defense counsel table in medical malpractice cases, this was a very different experience, not just because this was a criminal case, but also because I did not know what to expect. Unlike my own trial experiences, the witnesses were foreign to me, as were the exhibits and attorneys. I had not spent more than a year of my life working the case up to the point of trial with intimate knowledge of every aspect. In this instance, I knew nothing.

During the course of my five-day jury service, I gained priceless insight into the thought process of a jury. Certainly, the dynamic of a jury will differ due to the variety of personalities from jury to jury, but there were a good number of observations that I will take away from my experience and use in my practice.

First, do you know what happens to prospective jurors before we get to the attorneys? By the time we make it up to our assigned court in Marion County, we have already had a long, full morning consisting of fighting traffic, parking, going through security, standing in line to be checked in, finding a place to sit in a crowded room, trying to figure out how to complete paperwork on our laps without clipboards, waiting impatiently after paperwork is completed, watching a dull video about jury service, and then waiting some more until finally our names are called to go up to a particular court. As we form lines to go up to our assigned courtroom, the atmosphere is akin to a “lamb to slaughter.” Once we ride elevators up to our assigned court, we are directed to fill the courtroom. As we enter, everyone is staring at us. The jurors serving with me did not appreciate the way the attorneys stared as we filled the courtroom. They knew they were being sized up from the moment the attorneys first set eyes on them. Perhaps attorneys shouldn’t be so obvious.

Voir dire, however it is pronounced, is a great way to start planting seeds in the jury’s mind about the theme of your case. Following voir dire on our case, during our first break together, I was busy listening to all the conversations the jurors were having about the questions asked during voir dire. Even though some said a question was “dumb,” the question did evoke conversation among us as to its purpose. The defense asked us if we had seen the movie “Tangled,” but only two of us had. No more was pursued about the topic during voir dire, but back in the jury room, those of us who had seen the movie talked about how the lead female character used a skillet to hit the male character. The defense had succeeded in indirectly planting a mental image of a woman wielding a skillet, which was one of their defense theories.

Unfortunately, jury selection can also be the beginning of alienating members of the jury. Because jurors don’t know you, this is when we are getting a feel for the personalities of the attorneys. It goes without saying that attorneys should conduct themselves professionally while in front of the jury. However, an ounce of warmth can go a long way. While serving as a juror, I witnessed how an attorney eroded credibility with the jury when voir dire came across as a hostile cross-examination.

Obviously, attorneys understand that a juror has heard next to nothing about the case before the first witness is called, but do they understand what that really means and how opening argument is so critical to the rest of the trial?

As witnesses are called to testify, a juror, without a frame of reference, must process what each witness is saying and try to organize that information in relation to the rest of the case. As a juror, we have very little time to digest what each witness is saying before another witness is called. Because there is a limited amount of information that a person who has been summoned to sit as a juror can – or is willing to – absorb, a lot of details are simply lost by the average juror. Most are trying to be attentive, but even the most attentive juror is picking up only the main facts.

For instance, in our case, we did not know there was any significance to the victim’s picture appearing on his credit card. We listened to several witnesses talking about stolen items, but the details about the credit card were lost on most of us. To our jury this very small detail turned out to be incredibly important to bolstering the credibility of several witnesses.

Because the jury doesn’t know what details are most important to deliberations, but the attorney does, counsel must let a jury know in the opening statement to listen for something in particular. Give the jury a clear roadmap for the case. Weaving important facts into a story format helps us understand what we will hear and why it will be important. The most compelling opening argument came from the prosecution in our case because they told a logical story and weaved in pieces of evidence.

During the presentation of evidence, I was surprised by the extent the jury would speculate about matters that were either not allowed in evidence or inadequately explained. I suppose it is human nature to fill a void. I guess the question to attorneys is whether the void is better filled with the actual evidence, which may be slightly prejudicial, or with jury speculation, which might be worse.

I was reminded how important cross-examination is to the defense during my jury service. Jurors promise to wait to hear all the evidence before they decide, but many are really close to making up their minds before the case is turned over to defense. It is imperative that the defense make some points on cross-examination. When impeaching with prior inconsistent statements, bear in mind the jury does not know what the witness said before in a deposition unless you read it to us or have the witness read it. Also, do not misquote or take out of context prior testimony, because you will lose a lot of credibility with a jury. Our jury discovered this when there was an attempt at impeachment of a witness about a description of a gun. The attorney was leading us to believe the witness was actually describing a real gun in her prior statement, whereas her testimony at trial she could not. However, in the context of her prior statement, she was describing the appearance of a tattoo of a gun. To say the least, the jury was annoyed by this trickery.

A jury likes it when you help clarify issues that we have brought up during our questioning. Our jury asked an unusually large number of questions. From my own experience, I felt pressured to write questions quickly as the bailiff hovered and everyone stared, which is why some of our questions may not make sense or be very legible. If you get a feel for what information a juror would like clarified, please follow up our questions with your own so we can better understand the case. You will gain a few brownie points in the process.

Publishing an exhibit to the jury as you are covering the material is very important. In our case, a lot of pictures were discussed during testimony, but a lot of them were not published to the jury for us to see at that moment. Many times we would have taken away a lot more information if we had been able to view some of the photos at the time they were discussed with a witness. Use of electronic viewing equipment across the room failed to provide most of us with a vantage point to see the details. A blanket question as to whether the jurors can see won’t elicit a response as to whether they can see the details being discussed. If the details are important, enlarge the photos into big boards. As a juror, I appreciated the use of the boards during witness examination and closing argument.

Closing argument was an exceptionally welcome sight to this juror on the fifth day of trial. While we were all tired and ready for the whole thing to be over, we were drawn into both sides’ closing arguments. Both pulled the evidence together for us with their own theme. I observed during my time as a juror that there is a very fine line between effective use of a theme and being corny. Make sure you know where that line is because once the theme turns to the ridiculous, it has lost its effectiveness to hold the story together.

One other thing I grew to appreciate as a juror was an attorney pointing out to the judge that we needed a break. Jurors are intimidated by the judge and are hesitant to voice needs. The court went for long stretches of time without a break. We were hungry, thirsty, and needed a bathroom break. We stared at counsel table and watched as the attorneys and the defendant freely took sips of water. We were very jealous. This reminds me of a lesson one of my partners imparted to me during trial: we were not going to drink any water at the defense table, because the jury didn’t have the same opportunity and access to water. At the time, I didn’t really understand the importance of that rule until my experience as a juror. (Bob, you were right.)

The jury’s observations of counsels’ tables were not limited to whether the attorneys were drinking water or taking notes. More than I ever thought possible, jurors are watching us and judging our every move. We were noticing minute details about your appearance like a tie that is uneven, a flipped-up collar, or even how a hem line appears to be unraveling. If attorneys look tired or are throwing exhibits at opposing counsel, we jurors notice. After we notice all this, we don’t keep it to ourselves. We go back to the jury room and talk about it. At times I felt like I was back in junior high school with the number of insulting comments I heard coming out of my fellow jurors’ mouths. My only tip about this is that you really don’t want to know everything a jury talks about.

I think one fact that you must impress upon your next jury is that their individual opinion is important to the deliberations of the whole. There is a tremendous amount of peer pressure in a jury room during deliberations. At one point during our deliberations, one juror, who was annoyed by the fact it was after 5 p.m. on a Friday night, wanted to put to a vote whether we would allow time to view a gas station video, since only three jurors wanted to see it. This juror was quite animated while voicing frustration toward the three deliberating jurors. While this remonstrance was ineffective and we watched the video anyway, I could easily see how jurors would feel under pressure to go along with everyone.

Finally, I would like to thank the attorneys who, for whatever reason, held back the impulse to strike me from this jury. This was an enriching experience to my trial work. I would also like to think my presence on the jury helped the deliberations, because the jury was less intimidated by the process and more engaged. The jurors felt more comfortable submitting questions, because I was breaking the ice by submitting them. They also liked having someone who could help them read the jury instructions. After the trial, I heard several of my colleagues joke about my presence creating “a jury of one.” However, my respect for the jury trial process was such that I was committed to helping everyone feel comfortable sharing their opinions, even if they were not the same as my own. I think a lot of trial lawyers would feel the same way. So the next time you happen to call a lawyer into the box, hold back the impulse to strike simply because she is a lawyer.•

Ms. Avery-Seagrave is an associate in the Indianapolis firm of Zeigler Cohen & Koch and is a member of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the author.