Many international lawyers and law students, particularly from civil law jurisdictions, can be sceptical about the use of juries in criminal trials. Part of this scepticism generally comes from a lack of understanding of exactly what a jury does in a criminal trial. When you understand that the function of the jury is to determine facts, and then apply the law that the judge tells them they must apply to those facts, it becomes a little easier.
Whether you agree with the use of juries or not, they remain an important part of the legal systems in several common law countries and jurisdictions, particularly in the area of criminal law. This week, we have been following the trial of Derek Chauvin, the former Minneapolis police officer who is charged with the murder and manslaughter of George Floyd. Mr Floyd’s death sparked protests around the world last summer, with their focus being primarily on social issues rather than strictly legal ones.
As a trial lawyer, whether prosecuting or defending, you need several skills. Of course, you need to know your case, inside and out. You need to know the law relating to the charges that are brought. You need to have an intimate knowledge of the rules of evidence and procedure that apply in your jurisdiction. What is sometimes overlooked, even by trial lawyers, is that you also need to know your jury. Ultimately, it is the jury who will decide the fate of the defendant.
But what does ‘knowing your jury’ mean? In relation to this, the system of jury selection which operates in the United States almost certainly gives trial lawyers on both sides a better profile of the individuals who are going to make up the jury than the system which operates in England & Wales. It is unlikely to ever give either prosecution or defence the kind of jury that will guarantee one outcome or another, but it does allow for the kind of insight which English trial lawyers do not get. And this insight is crucial.
In the absence of knowing something about the backgrounds and possible biases of individual jury members, all you can do as a trial lawyer is try to work it out from what you observe from the moment the first juror is sworn until you sit down after your closing speech at the end of the trial. Indications such as nods, note-taking, and body language should be assessed. We’ll come to why in a moment.
How, and why, juries reach their decisions remains a mystery, at least in England. Research into ‘real’ juries is illegal, primarily because of the risk of ‘contaminating’ jury deliberations. But, even if it were possible, it may not help very much. Juries are composed of human beings, obviously, and everyone is different in many ways. Yes, they have emotions and, to anyone observing the Derek Chauvin trial this week – especially during the first three days – it was obvious how the prosecution lawyers were seeking to tap into the emotions of the jury as the State opened its case and called its first witnesses.
Ultimately, as a trial lawyer, you are seeking to persuade a jury to reach a conclusion of some kind. Many lawyers spend a lot of time honing their trial skills – including all those matters we suggested earlier – but not enough on understanding the psychology of the jury, both as a body and as individuals within that body. For example, they think that all the members of the jury will be looking at the case through the same lens. That is understandable, but it is not realistic. Let’s look at one example.
A young woman – the complainant - of 21 makes an allegation that she has been sexually assaulted. This kind of allegation is clearly serious and will raise emotions. But, the emotions, and the way individual jurors look at a case like this will differ. A young woman juror will look at the evidence through different lenses from, say, an older male juror. The young female juror might try to imagine herself in the complainant’s situation and ask herself a set of questions, such as:
· What would I have done in that situation?
· Would I have been in that situation in the first place?
· Why should any woman be put in that situation?
among many others.
An older male juror would undoubtedly be viewing the evidence from a different standpoint. He might see the complainant as his own daughter, for example, and how he would feel – and what he might do – if his own daughter were the complainant.
And it will be the same in the Derek Chauvin trial.
As a lawyer in a trial, you know you cannot go into the jury retiring room and try to persuade them any longer. You have said all you can say. In that situation, you need a ‘proxy’, and preferably more than one, to do that for you in that retiring room. Sixteen years as a lawyer conducting trials in England teaches you that you need to carefully watch each member of the jury, try to assess which of them might be most responsive to the points you consider important, and do your best to make them your proxy in the jury retiring room. And knowing the possible lenses that those jurors may be looking at the evidence through is also crucial to this process.
Building rapport with a jury is essential. One of the interesting features of the Chauvin trial is the apparent imbalance between the prosecution ‘team’ (several high-profile lawyers, rotating shifts at the podium as they ‘direct’ the witnesses) and the defence lawyer, Eric Nelson, who is dealing with this case essentially alone. There are many reasons for this. On the one hand, it presents the appearance of a kind of ‘David’ versus ‘Goliath’ situation. That, of itself, would not – and must not – play any part in how a jury view the evidence or the case. However, what it has done is allow the jury to see Eric Nelson repeatedly, and for Nelson to use this to build rapport with them. This began with the jury selection process, three weeks ago. And it will continue until Mr Nelson sits down, having delivered his closing speech.
One thing is for sure. This is a jury under immense pressure – perhaps under more pressure than any jury ever has been. One juror has already indicated the stress they were feeling and their inability to sleep. She probably isn’t alone. Every juror will know that there will be ramifications, outside the courtroom, whatever verdicts they return.
© Cambridge Legal English Academy 2021