The Practice

By Richard A. Ginkowski

Richard A. Ginkowski is a state prosecutor in Kenosha, Wisconsin, and a past-chair and current member of the Criminal Justice magazine editorial board. If you have practice-related tips you’d like to share, please feel free to contact the author at dickg@execpc.com.

For several years my office has sent "exit poll" questionnaires to jurors in cases we’ve prosecuted. Where deliberations are lengthy and often contentious, the "report cards" from the jury are frequently all over the boards. Nonetheless, from years of anecdotal research, we’ve found some common issues that should concern—and challenge—judges, prosecutors and defense attorneys:

• Jurors may be candid about specific voir dire questions (i.e., "Are you related to any law enforcement officers or parties in this case?") but are less likely to disclose potential biases.
• Jurors frequently don’t hear, understand, or follow jury instructions.
• In this age when television shows such as Law and Order can show a crime committed, solved, and prosecuted in one hour minus commercials, jurors expect that the case they’re going to hear will be presented visually and efficiently.
• Jurors don’t like it when they perceive that lawyers and judges waste their time.
• Prosecutors: Jurors often want to know whether the accused has committed similar acts in the past.
• Defense attorneys: Jurors like to hear a defendant’s version of the case (but, if the defendant testifies, perceived untruthfulness can be held against the accused).
• Judges: Jurors look to you for leadership.

How extensive—and probative—voir dire is depends on the jurisdiction and the trial judge. When controlled exclusively by the judge, it’s especially difficult to learn much. When lawyers are allowed to ask general "group voir dire" questions, the potential for candor improves, but is still lacking. Individual voir dire is generally more probative, but also rarer.

In my experience, the first round of voir dire questioning by judges usually consists of "stock questions" that seldom produce much in terms of a reasoned response. Simply stated, jurors may be willing to admit whether they’re related to a police officer or a party in the case, but are less likely to disclose potential biases.

This is only human nature. Being biased or prejudiced is perceived as some sort of evil and, like anyone else, jurors can feel awkward when asked generally if they have any biases.

Here’s where the prosecutor, who is usually second up to the plate, is challenged to confront these issues in human terms. Frequently I’ll start out something like this:

"I’m going to ask some questions to learn more about you and your qualifications to be a juror in this case. There are no right or wrong answers—we just want to find out more about you. We’re also not here to put you on the spot. If, say, you don’t want to blab to the world that your son got arrested for having pot, just tell us that you have something you’d like to discuss with the judge and the lawyers in the conference room.

"Let me start by asking, how many of you are Green Bay Packer fans? Okay, you can put your hands down. Now, how many of you like some other team?

"That’s interesting. A few minutes ago the judge asked you if anyone had any bias or prejudice and nobody raised their hands.

"You see, a bias or prejudice isn’t always something bad—like racial or religious discrimination—and everyone is biased to some extent. When I ask you questions today, please think of whether there is any bias or prejudice you have that might relate to something important in this case or your ability to be an open-minded juror.

"Here’s an example of what I mean. I once had a new 1977 Chevette that broke down so much that I carried my bicycle in the hatchback. I fought General Motors repeatedly over that car and I haven’t owned a GM product since. Now, if somehow GM was involved in this case, I should tell the judge and the lawyers about how I feel."

What I’ve done here is break the ice and tell the jury it’s okay to discuss their prejudices. Sometimes I’ll have jurors disclose their feelings about a particular person, law, or issue. I then will ask the panel, "Does anyone else feel like this?" This occasionally inspires a dialogue among the jurors.

After going through my general and specific questions about the case and related issues, I’ll focus on some issues related to how jurors perceive the trial and their responsibility:

"How many of you watch ‘lawyer shows’ on television? Is anyone going to be disappointed if I tell you that this trial won’t be settled in an hour minus commercials? Instead of being like TV, this trial probably will be more like putting a puzzle together. Not all the pieces may come together sequentially. Is anyone going to have a problem with that? How many of you watch Cops? Are any of you going to be concerned that you won’t see a video of what happened at the scene?"

Next, I will take on some of the other juror concerns:

"This trial is important to everyone. We generally don’t get a second chance to present our case, so the attorneys are understandably concerned when something is happening that they consider improper. The judge will instruct you that lawyers have the right and duty to object. It’s not that we’re being rude when we do, but we’re just doing our job. Does anyone not understand this?"

Finally, although jurors’ questionnaires and judicial voir dire usually ask whether prospective jurors can adequately hear or if they have any other condition that might prohibit them from being a juror, one point frequently overlooked is whether a juror suffers from a learning or other disability that might impair his or her ability to sit through a trial and recall the evidence.

In a recent trial a juror responded to my question about learning disabilities to indicate that he has attention deficit disorder. The judge then told the jurors that they would be allowed to take notes and he encouraged them to do so.

Jurors may be less than thrilled to get a jury summons, but they’re even less pleased when they have to cool their heels in the jury room or be bored with what they perceive as redundant evidence or arguments.

Judges are understandably concerned about their calendars and keeping the caseload moving. Nonetheless jurors generally don’t appreciate waiting in the jury room while a trial is interrupted to hear other cases. Judges can ease that anxiety by hearing those matters before the jury reports for duty.

As lawyers we may think we’re gifted orators, but jurors are seldom impressed by lengthy or redundant
arguments.

In My Cousin Vinny, the character played by Joe Pesci scores points for his unique yet compelling cross-examination. However, the prosecutor’s opening statement presented by Lane Smith is likewise a good model of trial advocacy. Within a minute or so, he presented a brief yet thorough summary of the prosecution’s case. He didn’t bore the jury with a lot of hot air, but got into the case up front. Jurors appreciate this.

In a child abuse case a few years ago, two nuns and a minister were excused for cause during voir dire because they said they felt that if a man is truly innocent, he would profess it loudly and vigorously. (And I had considered using peremptory strikes because I felt they’d probably be "bleeding hearts" favorable to the defendant!)

In our research, we found that no matter how strenuously jurors are told that the prosecution has the burden of proof and the defendant can sleep, if he or she wants, during the trial, the fact is that jurors want to hear the defendant’s story. Many times jurors have told us that they might have given a defendant more consideration had he or she testified.

Of course, often there are many good reasons why a defense attorney may wish to counsel a client against testifying, but nonetheless the verdict in a close case could be tipped in favor of conviction when a defendant doesn’t tell his or her story to the jury. If a defense attorney knows that the client won’t testify, this subject may be something he or she may wish to spend more time on during voir dire.

Bear in mind, though, that if a defendant takes the witness stand his or her testimony must appear truthful and reasonable. In a "she-said-he-said" domestic violence case without corroborative evidence a jury convicted the defendant who denied, in the face of documented evidence that he was personally served with an order of protection, that he had ever seen it. The jury feedback I received after the trial clearly indicated that the defendant’s lack of candor was the tiebreaker.

Another tiebreaker may well be "other acts" evidence. Criminal practitioners know that courts are leery in many cases to allow prosecutors to present this evidence because of the fear that it might convince a jury that if a defendant did it before, he or she probably did it this time as well.

That’s why the rules of evidence limit the circumstances when it’s appropriate to present "other acts" evidence to a jury.

Jurors, however, often want to know if there were prior incidents. In an elder abuse case that resulted in an acquittal, jurors asked whether the defendant had assaulted his mother in the past, even though such evidence was not allowed or introduced at trial. Most of the postverdict questionnaires returned to me suggested strongly that introduction of "other acts" evidence might well have resulted in a conviction.

Of course, jurors are routinely instructed about the law that the prosecution has the burden of proof and the defendant has the presumption of innocence. They are, nonetheless, human and often do want to know the rest of the story.

Judges routinely see their role during a trial as a referee moving the contest along and blowing the whistle when one of the attorneys goes offsides.

As we know, judges cannot and should not even appear to take sides during a trial. Still, jurors look to judges for leadership. Probably the best way judges can do this within the bounds of the law is to be clear and concise in communicating with the jury.

It sometimes amazes me that a judge who previously may have been an effective trial advocate can turn jury instructions into a mumbled drone of confusing language. Judges should take heed and make sure that instructions are clearly written and presented.

Although I don’t always concur with feedback from jurors—sometimes the feedback from individual jurors is significantly contradictory and makes me wonder if we were at the same trial—I have nonetheless used this information to modify how I try a case to a jury.

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