As a non-lawyer, and as a generally law-abiding citizen, my main interaction with the criminal justice system is going to be as a juror. But over at a public defender, Gideon is saying that jurors don’t really understand the presumption of innocence:
I have come to believe that that is hogwash. Jurors are smart enough to know what to say. They’ve also been reading the same newspapers and watching the same news. There’s still this cultural divide between “them” the defendants, and “us” the jurors. Someone’s been arrested and is going to trial? Well, there must be something to it or why else would the State waste its time?
The presumption goes to the State. If the State, in its benevolence and infinite wisdom has decided to pursue this matter, then, well…
I don’t feel that way at all. And what’s this “divide”? Maybe if the defendant was some kind of obvious species of scumbag — a marked gang member, giving us all the stink-eye, or a raging psychopath — but when I was a juror, I thought I had a lot in common with the defendant. After all, I didn’t really want to be there either, but the prosecutor insisted we take a part in his show.
If you had a client in whose case you believed the State’s evidence could not sustain the burden, would you dare rest without putting on any evidence? Do you have that much faith in jurors?
I have this belief – it may be a naive belief – that most trials are won not because the jury upheld the presumption of innocence, but because the defense overcame the presumption of guilt.
It is human nature to want to hear both sides of a story and then decide which one is more believable. To force the jurors to perform their duty in a manner that is contrary to this human need is merely wishful thinking, no matter how forceful the instruction from the judge.
That last part has the ring of truth. The human decision-making process does not perform well under highly artificial conditions. That’s why we get fooled by things like math riddles and gambling. So it makes sense that we wouldn’t do well in a situation where we can’t hear both sides like we would in a normal conflict.
Still, even without legal training, I don’t think the presumption of innocence is that difficult to follow. I’m pretty sure I could do it. I’m pretty sure I have done it.
Meanwhile, Scott Greenfield quotes jury consultant Harry Plotkin, who thinks jurors have the attention-span of weasels on meth:
What matters most, more than ever these days, is that you keep your jurors engaged in the trial and focused on the things you want them focused on. Jurors try their best, but they won’t pay attention to everything you present to them in a trial, and they’ll remember even less by the end of the trial. So your jurors’ attention spans are limited, their memories are limited, and–perhaps most importantly–their patience is limited, and that’s the main focus of this month’s tip.
They’re cynical too:
Aside from how quickly they demand information, Generation X and Y jurors are generally more cynical than older jurors. They grew up in a world with lawsuits, corporate scandals, and written contracts for every agreement instead of handshakes and trust. They’re not necessarily more prone to favoring plaintiffs or defendants, but they tend to be more critical of plaintiffs, less trusting of defendants, and tend to have higher expectations of what the litigants “should have done” better.
Scott adds:
While this cynicism cuts both ways, the defendant will be the one left without any showing to satisfy their demand for evidence. If they come into court cynical, then there is little expectation that they will honor the presumption of innocence or the burden of proof. They will sit back and demand that both sides satisfy their curiosity, and do it on their terms.
I am puzzled by this. I could be a juror — I have been a juror — and that’s not how I did it. I went in understanding that I might never know the truth, but I knew I had a job to do, and I think I did it. So why are Scott and Gideon and so many other defense lawyers saying these things?
I can think of three explanations.
First of all, maybe Scott and Gideon and all the other criminal law bloggers are wrong. Maybe jurors are a lot smarter than they think. Maybe they are generalizing from a few bad experiences, or maybe they are disappointed in their own performance as lawyers and reaching for explanations other than their own incompetence or the maniftest guilt of their clients. In other words, maybe all these lawyers who I rely on, who I trust and admire, are morons who don’t really understand juries.
The second explanation is more positive: Maybe I’m different from other people. Maybe — unlike most people — I really get our system of justice. Maybe where other people would walk into a jury room filled with prejudices against the defendent, I would enter with a true presumption of innocence. Maybe I alone would require clear proof of every element of the crime — untainted in whole or in part by reasonable doubt — before I would convict. In other words, maybe I’m special.
The third explanation is the worst: Maybe I’m exactly like those other people. Maybe, I make the same mistakes they do, and maybe I fool myself into thinking I’m doing it right, just like they do. Maybe I’m failing to do my part, just like everyone else.
It’s that second one, though. Right?
[Update: Just to be clear, because Scott sounds a little pissed off in the comments, I don't really think the first explanation is likely. Nor the second one, for that matter.]