Lawyers should Prepare early in order to prevent jurors from conducting their own investigations into unanswered questions
In Alaska, a murder conviction against four young men hangs in the balance at that state’s Supreme Court after the revelation that jurors walked outside during deliberations to determine how far away an eyewitness could recognize someone.
In New Jersey, one juror was dismissed and nearly caused a mistrial in December after driving to the scene of a fatal shooting and timing how long it took to drive from one point to another.
In Albany last fall, a murder trial was halted after one juror set up his own ballistics tests at home, shooting into a pizza box and bringing the spent ammunition to show the rest of the panel.
And in the UK last year, a jury was dismissed in a manslaughter trial after one panel member not only visited the crime scene, but took photographs, made measurements and submitted a list of 37 questions to the judge.
Do-it-yourself jurors can create havoc.
Despite being instructed to consider only the evidence presented to them in the courtroom and to apply their life experience and common sense, some unsatisfied jurors apparently can’t help themselves. They have burning questions and they want answers.
When faced with an intriguing mystery, jurors, like most of us, want to figure it out. We hate unanswered questions. We worry about untidy details that don’t seem to fit.
That desire for the perfect explanation, one that evokes that “aha!” moment, is probably a product of our popular culture. For most of us, the mysteries we encounter are solved in 60 minutes of a television show, wrapped up in two hours at the movie theater or revealed after a few days spent burrowing into a crime novel.
But unlike TV, trials will sometimes leave jurors wanting. They may be told that a particular piece of evidence just can’t be explained. They may be suspicious of the explanations they are offered. And sometimes, jurors come up with questions that neither side has considered.
In recent years, more and more states have begun to allow jurors to submit written questions for witnesses in civil cases. The decision to allow juror questioning in any given case is typically left up to the trial judge, who will rule on whether the questions are proper. However, many courts have been understandably reluctant to do the same in criminal cases primarily because of concerns that doing so would improperly shift the burden of proof away from the prosecution.
Questions were probably inevitable in the recent murder trial of Ryan Widmer in Warren County, Ohio. (Ohio gives judges in criminal cases the discretion to permit juror questions, but news accounts give no indication that the Widmer jurors could or did submit questions.) Widmer was accused of drowning his new bride of four months by holding her head down in the couple’s bathtub.
According to the Cincinnati Enquirer, Widmer told police he had found his wife unresponsive in the tub, pulled her out and called 911, a call that lasted six-and-a-half minutes.
When police arrived, they found Sarah Widmer’s body dry except for her hair. The scene around the tub was also dry.
Defense experts testified that it was impossible to conclude with any certainty that her death was a homicide. They said she could have drowned after suffering a seizure or undiagnosed heart ailment. Friends of Sarah testified that she frequently complained of headaches and fell asleep in unusual places, including the bathtub, according to the Enquirer.
One particular defense witness may have piqued jurors’ interest. While testifying on cross, pathologist Michael G. Balko mentioned that he had recently conducted an experiment related to the case: He timed how long it took his skin to dry after a shower. It took seven minutes, he testified, the newspaper reported.
Widmer was acquitted of aggravated murder but convicted of murder and sentenced to 15 years in prison.
Now, a juror’s affidavit, filed just days after the verdict, could undermine the result. Juror Jon Campbell said on the first day of deliberations, one female juror told the others she had tried to duplicate Balko’s experiment. It took her 12 minutes to dry after her shower. The next day, another juror reported that after showering, she lay on the bedroom carpet and it took her more than 15 minutes to dry. Still a third juror reported trying the home experiment. The result: eight minutes to dry.
A fourth juror said he had checked his tub several hours after bathing his child and it was still wet.
Campbell‘s affidavit said he believed the experiments had influenced several jurors’ votes and that he had a “moral duty” to report what had happened.
Six members of the panel have now been subpoenaed to court for a hearing Friday on whether Widmer will get a new trial because of the juror experimentation.
Do-it-yourself jurors probably aren’t deliberately trying to sabotage a trial or brazenly flout judicial instructions. They just believe they need certain information to reach the right verdict.
The Press of Atlantic City reported that the New Jersey juror who conducted a timed test-drive at the crime scene told the judge that he was “trying to make an honest decision. I’m making a decision on somebody’s life here.”
In many cases, including some of those described above, the questions do-it-yourself jurors want answered are perfectly permissible: How long did it take to drive? How far away was it? Yet those questions weren’t answered during trial.
Anticipating jurors’ questions is a critical part of attorneys’ trial preparation. Knowing what puzzles, intrigues and worries jurors and addressing those issues could go a long way toward curbing jurors’ outside experiments.
Most courtroom veterans have a story or two about an unanticipated question that stymied a jury. Yet surprisingly few lawyers routinely engage in the very research that would help them anticipate those questions. They fail to conduct focus groups and mock trials.
In these sessions, lawyers hear from citizens chosen to reflect the demographics of the jury pool. They hear how participants react to the case, find out what issues are important to them—and discover what questions they have about the evidence.
It is not unusual for focus group participants to raise new questions, issues or concerns that attorneys had either overlooked or dismissed as unimportant. Viewing the case through the eyes of everyday citizens—who are not of a legal mind—can be an eye-opening and invaluable exercise.
Conducting focus groups and mock trials early enough in the process of preparing for litigation allows attorneys to adjust their presentations and prepare to address jurors’ concerns, to answer those nagging questions.
Doing so just might avoid some extracurricular juror experiments as well.
This article is reprinted with permission from the Apr. 22, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.