Studies are split on whether plaintiffs or the defense has the advantage with jurors who have served before.
The topics addressed during voir dire of prospective jurors vary from case to case, but one area of questioning is nearly universal: prior jury service.
Whether the case is civil or criminal, tort or felony, lawyers always want to know which panel members have experience as a juror.
Georgia judges typically permit questions to be posed such as these:
• Have you ever served on a jury?
• Was the case civil or criminal?
• Were you the foreperson?
• Without specifying what that verdict was, did your jury reach a verdict?
• Is there anything about your prior jury service that would make you unable to be fair and impartial in this case?
Sitting as a juror affects an individual’s future attitudes toward the justice system in a number of ways.
During their service, jurors learn the various players in the court system and their roles, gain familiarity with courtroom procedures and acquire at least some knowledge of legal concepts. Jurors also gain experience listening to and evaluating evidence and participating in deliberations to reach a decision.
Some jurors come away from their courtroom time with a newfound respect for the justice system and with a sense of civic responsibility fulfilled. Others, however, may find the process tedious or trying, the deliberations frustrating or troubling or the entire experience disillusioning or haunting.
Regardless, lawyers always want—and need—to know about prospective jurors’ past jury service. Many attorneys believe that repeat jurors tend to side with the defense in civil cases, and with the prosecution in criminal cases. They also expect that repeat jurors are more likely to be leaders on the jury and that a juror who has been a foreperson once stands a good chance of being chosen foreperson again.
Is there evidence—more than anecdotal—to support these widely held beliefs?
To answer that, we should look to the results of studies of juror behavior. The available research on the effects of prior jury service on verdicts, which includes both field studies (interviews with jurors or statistical evaluations of court records) and laboratory experiments (simulated trials or case assessments using undergraduate students or volunteers) were conducted in the 1980s. They focus solely on criminal cases.
Of those studies, most found that repeat jurors in criminal cases are more likely to vote to convict. Some studies also indicated that juries with a higher percentage of repeat jurors are more likely to convict.
One laboratory study found that repeat jurors’ votes were influenced by two factors: the seriousness of the previous case as compared to the second case, and the comparative strength of evidence.
The studies also revealed that repeat jurors are more likely to become forepersons—especially if they have served in that capacity previously.
Obviously, these findings are generalizations, but they underscore the need for criminal defense lawyers to scrutinize those who have previously served as jurors in a criminal case and to consider the number of repeat jurors who may wind up on the new panel.
One category of repeat jurors warrants even more scrutiny: those jurors who learned after the verdict that information had been hidden from them during trial.
Prior criminal records, evidence seized from an illegal search, evidence of other litigation or any irrelevant and prejudicial information is often excluded from trial for sound legal reasons. Yet one of the attorneys, or sometimes even the judge, often will reveal that information to jurors during post-trial discussions in the jury room.
Sometimes this disclosure will reinforce jurors’ beliefs in the righteousness of their verdict, while in other cases, it will call into question their just-rendered decision. In either case, it will inevitably change how they assess future cases. These jurors will feel duped or tricked. Next time around, they are likely to assume that secrets are being kept from them again, leading them to factor that assumption into their assessment of the evidence.
In short, revealing this information to jurors after trial—described by one public defender’s blog recently as the “post-trial reveal”—poisons the pool of future jurors.
Last month, a California juror who served on a civil trial described just such a situation on her blog: “[T]he things I’ve found out from one of the attornies [sic] since the trial has been over has seriously damaged my sense of justice and fair play. The judge did not let in several things that, knowing now, would have changed the outcome.”
Another juror’s blog reveals a similar story: “After the verdict, evidently, a judge can be more free with his opinions. He came back to the jury deliberation room and without actually saying the words, let us know that we had made a wise decision. He also told us that this was the defendant’s fifth offense.”
And finally, this juror, whose panel had just found a man guilty of raping a child, wrote that both the judge and the prosecutor shared some new information with jurors after the verdict. “Turns out this sick bastard has two more pending rape charges. … The judge also assured us there was nothing about the case that could be appealed successfully.”
The post-trial reveal can also be an ethical violation.
State Bar of Georgia rules provides that after a jury is discharged, a lawyer “shall not ask questions or make comments to a member of that jury that are calculated to harass or embarrass the juror or to influence his actions in further jury service.” A violation of the standard is punishable by a public reprimand.
The American Bar Association’s Criminal Justice Standard 3-5.4 contains similar language directed at prosecutors who speak with jurors after a verdict.
A few additional voir dire questions about prior jury service may help lawyers spot those repeat jurors who feel they been deceived in the past. Ask if they learned anything during—or after—their prior jury service that might affect their feelings toward either side or toward jury service in the current case.
Since Jury Watch’s column of Feb. 13 about jurors on the Internet, the problem has mushroomed to the point of derailing, or threatening to derail, case after case.
In Florida, a federal judge declared a mistrial in a drug case after discovering that nine jurors had done Internet research on the case. A judge in Philadelphia considered, but rejected, a request for a mistrial based on one juror’s Facebook postings during the trial of a political corruption case. And an Arkansas company tried unsuccessfully to set aside a $12.6 million verdict because a juror had sent multiple Twitter messages on the case during trial.
In response, some courts are instituting measures to address the problem.
Rhode Island recently revised its juror handbook, according to the Providence Journal. The new guide will warn jurors against conducting Internet searches, participating in chat rooms or posting on blogs about the case. Jurors will also be told they may not discuss the case “either personally or through computers, cell phone messaging, personal electronic and media devices or other forms of wireless communication.”
The Michigan Supreme Court went even further, issuing new jury instructions. Beginning Sept. 1, judges must instruct jurors not to use cell phones or any other electronic device during a trial or in deliberations. That includes all electronic communications, including text and Twitter messages.
This article is reprinted with permission from the July 13, 2009 issue of the Fulton Daily Report © 2009. Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
