Oregon State Bar Bulletin JANUARY 2013
Jury Service Revisited
By Timothy MB Farrell
I got the jury summons in the mail in September. It told me to attend an introductory session the following week. At first, I was not happy about the summons, the session or the possibility of being on a jury. But after my trial early in December, my parting thought was that this is an excellent learning opportunity for any litigator. Having only tried about six cases, I can say that the experience will make me a better advocate.
We have all read about the art of choosing a jury, usually expressed as unpicking the panel. Some of the basic questions and comments during voire dire were interesting and made those of us on the initial 12 selected from the pool give the matter of fairness serious thought.
My take away on voire dire is not to take it too seriously, but to take advantage of the process. Jurors want to do a good job and want to be objective. But if you’ve got a juror form that says the person worked with a witness, you need to ask about that, for no other reason than to let the other jurors know that they should not give the testimony of any one witness too much weight. Plus, you might find a reason to exclude the person for cause or help decide which juror to exclude without cause.
Look for cause, but in the process explain the jury system to the panel. So, for example, if there is an attorney in your pool, or even a professional who may know something about an issue in the trial, you also need to explore their area of expertise. In all likelihood, the other jurors will look to this person for advice in their deliberations. The jury needs to know that they should only look to the evidence and instructions given in the case and not look to outside sources. Indeed, this is probably a good time to let the jury know that if something does not make sense that they can ask for further guidance while they deliberate.
Do not frustrate the panel with too much voire dire. Move on. In opening statements, take a look at your panel. Is anyone taking notes? If so, after making your introductory comments about the case, set out the law element by element, bar review style. Once you see that this has been noted, state what evidence or testimony will prove your case. If this information gets into the jury room, then your job is half done.
The attorneys in my case did a competent job of presenting their case. But someone had to use their judgment to decide if the actions really constituted a crime — in this case, the crimes of desecrating a memorial and offensive littering.
In your case in chief, pick your battles carefully. Don’t be afraid to concede that something that is not in a cemetery, for instance, could be a memorial. Don’t waste the juror’s time with an everything-including-the-kitchen-sink attitude, hoping that the jury will hang their hat on a technicality. It makes you look reasonable.
People watch detective shows. If you say that the feces were human, you better have someone with lab coat come and establish this fact. This is part of the show.
As part of the show, keep the jury engaged. A little self deprecating humor by defense counsel when asked to see the officer’s notes kept our jury interested. Ask to see if he wrote anything bad about you. If so, keep it to yourself. If not, compliment the witness on his or her thoroughness.
If part of the law is a little vague, like the offensiveness of a certain act, make sure that a witness describes what is within bounds and that the accused’s behavior was clearly out of it.
Don’t spend too much time thinking about your closing statement. It should just be a restatement of your opening, then pointing to particular evidence or testimony that really hit home. Acknowledge any weaknesses in your case, but let the jury know that this is why they are so important — they are the ones that need to decide the matter. During deliberations, this will help the jury focus their discussion.
Having sat and presided over a jury, I definitely appreciated the opportunity, both from a professional standpoint and from a public service standpoint. If you can integrate these observations into your practice, you will serve your client. Similarly, if you cannot marshal the resources to make a good case, advise your client that a trial may not be in their best interest and that they should think more seriously about settlement or a plea.
ABOUT THE AUTHOR
Tim Farrell is president of the Mid Columbia Bar Association. He has a masters’s degree in maritime law and practices in courts around the country and the Western Pacific (Guam and Saipan). He currently lives in Hood River, where he windsurfs and snowboards (depending on the season). Reach him at email@example.com.
© 2013 Timothy MB Farrell