Monthly Archives: March 2014

A Hung Jury: When a Stalemate Becomes Your Best Option.

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Hung juries are generally considered to be a rare outcome to a trial. However, even though it is not a true resolution, it can be considered your best outcome. Hung juries are even rarer when you are dealing with civil cases, where the only thing that you obtain is money. If you are likely to lose a case, a hung jury may be your best option. I have had three criminal cases end with a hung jury and had a civil case that nearly met the same fate when a jury told the court they were hopelessly deadlocked. The jury ended up reaching a verdict after being sent back for further deliberations. Following a hung jury, oftentimes, cases will settle or in a criminal case, the defendant will pled to a lesser charge. In other instances, a case may simply die on the vine and is never tried again. If you are criminal defendant, that is a good outcome. Based upon my experience in this area, I would recommend you do the following things if you want a hung jury:

1. Pick a diverse jury with strong personalities : Assuming you cannot stack the jury with persons favorable to your client’s point of view, you should strive to pick persons who are very different from one another. In order to hang a jury you only need one vote for no verdict. You want persons with strong personalities. If you have weak-willed persons on your jury, they will eventually succumb and capitulate to the majority. If they have similar backgrounds, they are more likely to come together. Conflict is your friend, if your goal is to have the case end in gridlock. The more different two people are the more difficult it is for them to connect with one another.

2. Polarize the Jury: In order to do this you need to find emotional triggers that are likely to evoke a strong response in those persons favorable to your position and persuade them that this is a matter of principle. This theme needs to be driven home at every stage of the trial during jury selection, opening statement, direct examination, cross examination, closing and as part of instructions. You need to present the jury with a clear choice.

3. Find a Good Villain: They say: “When the law is against you, you argue the facts. When the facts are against you, you argue the law. When the facts and the law are both against you, you find someone to give holy hell to and hope that the jury in its outrage ignores the law and the facts.” It ultimately requires that you find a good reason to brand the process unfair, unreasonable or plain biased. If you can find that hook, you have a chance at a hung jury and maybe even an acquittal.

4. Empower Each Juror: The jurors need to be told that in order for a verdict to be rendered a unanimous decision must be reached and juror’s oath requires that they stand alone if the party’s burden has not been. Get each juror to promise that they will hold out if they do not morally agree with the verdict. Empower the jurors by letting them know that they each have the responsibility to hold out for the verdict they believe should be returned and should not surrender their position just to leave earlier. Your client will live with the verdict the rest of his life. Make sure the jury knows that they have the power to say no and owe it to be fair and impartial.

5. Veto power: jury instructions need to tell the jurors know they can say no. Indiana has codified this power. Article I, Section 19 of the Indiana Constitution provides “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” The Indiana Supreme Court has approved the instruction: “You, gentlemen, in this case, are the judges of law as well as of the facts. You can take the law as given and explained to you by the court, but, if you see fit, you have the legal and constitutional right to reject the same, and construe it for yourselves.” Blake v. State, 130 Ind. 203, 29 N.E. 1077 (1892). It does not, however, give to them the right to disregard the law.” Id. at 204-05, 29 N.E. 1077. Remind jurors of this power they have and present a reason why the law is unjust as applied against your client.

6. Promises are Promises: During voir dire have the jurors each individually promise to hold out for a not-guilty verdict, no matter how long it takes, if this is the verdict that they support. Remind them of their oath in closing.

7. Argue Your Case with Fervor and Sincerity: If you don’t believe in your case, then how can you hope that a juror will hold out alone for a not guilty verdict, etc.

Even Chess Grand Masters have angled for a stalemate, if the board indicates they have no chance to win. Jury nullification is an important safeguard and the last resort against wrongful imprisonment and government tyranny. Sometimes a hung jury is the best outcome you can hope for and certainly beats a loss.

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Long Live the Attorney Irving Fink, My Hero

They say the law is a jealous mistress. Well this mistress has kept company with a living legend… Irving Fink. I am blessed to have Mr. Fink in my office and soak in his wealth of knowledge and wisdom. He has practiced law for six decades and still comes into the office four days a week to practice his craft. He use to come in five days a week, but decided to cut back a little now that he has reached his 94th birthday. Three score and 5 years ago, Mr. Fink became an attorney. That’s right folks, 1949. He has been married to his wife, Bea, even longer. Mr. Fink has championed the causes of “David against Goliath.” He is a published poet-laureate (See his book of poetry, To Stretch a Heart and Other Poems. Most importantly, he and his wife Bea, have successfully raised their children and have seen them attained professional recognition and success in their chosen fields. A few years ago, in his early nineties, Mr. Fink and a younger attorney in our office, Bill Levy (he was in his 80s at the time) successfully tried a case to verdict before a local jury against a national insurance company.

His positive outlook, joy for life and love of the law is truly a thing of profound beauty. His affection for poetry and a life well-lived, requires a quote from one of his poems reflecting on life and old age:

When new infirmities strike me
And I know I’m losing the race
I hope I’ll remain determined
To face what comes with grace.


-from “On Reaching Ninety-Two”

I hope that Mr. Fink is with us for years to come. But, when the time comes and Mr. Fink joins God, you can bet that if there is a Court of Reckoning in Heaven, Mr. Fink will be there representing the underdog with grace and wisdom gained from a life well-lived.

One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror?

20111004-080040.jpgJury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? Below is a checklist of reasons which can be used to disqualify a juror in Indiana Courts:

Jury Objection Chart 6

Case Law in The State of Indiana

“In criminal cases the court must sustain a challenge for cause if the prospective juror: … is a defendant in a pending criminal case.” Ind. Jury Rule 17(b)(2). However, Indiana appellate courts will reverse a trial court’s decision regarding challenges for cause only where the decision is arbitrary or illogical and results in prejudice to the defendant. Smith v. State, 730 N.E.2d 705, 708 (Ind.2000). If a defendant uses a peremptory challenge to strike a problematic juror and does not complain that the use of this peremptory challenge prevented him from challenging another juror who was later seated, the defendant has not shown prejudice and any error will be found to be harmless. Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993). This means that you need to have used all of your challenges and must be able to point to a later juror you were prevented from striking who is problematic. Otherwise, your objection is waived.

“A [criminal court] defendant is entitled as a matter of right only to an impartial jury, Ind. Const. Art. I, § XIII, and not to one of his precise choosing where the issue is merely replacing a regular juror with an alternate.” Jervis v. State, 679 N.E.2d 875, 882 (Ind.1997). Indiana Trial Rule 47(B) allows alternate jurors to replace regular jurors “who, prior to the time the jury returns its verdict, become or are found to be unable or disqualified to perform their duties.” Trial courts have significant leeway in determining whether to replace a juror with an alternate, and we will reverse only if there was an abuse of discretion. Harris v. State, 659 N.E.2d 522, 525 (Ind.1995); Ferry v. State, 453 N.E.2d 207, 213 (Ind.1983).

Constitutional Issues Regarding the Use of Peremptory Challenges

You cannot strike a member of a jury panel who is part of a protected class without being able to state a non-discriminatory reason for the use of your challenge. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L.Ed.2d 89 (1994), the Court extended Batson (prohibiting the use of peremptory challenges along racial lines) to gender issues as well, holding that gender, like race, is an unconstitutional proxy for juror competence and impartiality. In so doing, the Court employed traditional equal protection analysis, observing that “the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial.” Id. at 136-37, 114 S.Ct. 1419. The J.E.B. Court rejected the justification offered by the state that jurors would be likely to sympathize along gender lines in a paternity action, declaring that “[w]e shall not accept as a defense to gender-based peremptory challenges the very stereotype the law condemns.” Id. at 138, 114 S.Ct. 1419. Emphasizing the harm that race or gender-based discrimination in jury selection causes “the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process,” the Court reasoned that “[f]ailing to provide jurors the same protection against gender discrimination as race discrimination could frustrate the purpose of Batson itself. Because gender and race are overlapping categories, gender can be used as a pretext for racial discrimination.” Id. at 140, 145, 114 S. Ct. 1419. This restriction applies to civil cases as well as criminal cases.

Implied Bias Due to Close Relationship to State

Woolston v State, 453 N.E.2d 965, 968 (Ind.1983) involved a juror who had a close relationship to the State Police due to his wife’s employment. The juror was familiar with three of the officers who were to testify for the State and knew that his wife had worked on some of the evidence in the case. The Court noted that a challenge for cause had been held to exist in cases where a juror’s spouse had been hired for future employment by the prosecutor and in another where the juror’s wife was a second cousin to a member of the prosecutor’s staff, the Woolston court found that, based on the juror’s relationship to the State, it was error for the trial court to deny the challenge for cause.

Outside Knowledge, Evidence or Expertise

A jury should not be permitted to introduce outside evidence or knowledge which they may independently possess. This problem arises where a jury such as doctor, nurse or scientist has expertise which will be at issue in the case. Allowing this type of juror to bring expertise to the case, would be equivalent to allowing the juror to act as an expert witness who is never disclosed to either side and who cannot be cross-examined by either party. If the juror cannot leave this expertise, specialized information and such opinions behind in deciding the case, they are being allowed to act as an expert witness in the jury room. While there are no cases directly on this point, there are plenty of analogous authorities supporting such an objection. By analogy, judges are not permitted to act in this fashion. Our courts have held that where a judge based a verdict in a bench trial on an unannounced view of the accident scene he violated Federal Rule of Evidence 605. Lillie v. US, 953 F.2d 1188, 1191, 34 Fed. R. Evid. Ser. 938 (10th Cir. 1992). Likewise, it has been held where Judge relied upon his own personal experience as to the effects of anesthesia in determining the voluntariness of a confession, he violated the prohibition against being a witness under Federal Rule of Evidence 605. US v Lewis, 833F.2d 1380, 1385, 24 Fed. R. Evid. Ser. 432 (9th Cir. 1987). Indiana Rule of Evidence 606 provides that:

Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

This rule of evidence concerning jurors is comparable to the same rule of evidence which prohibits judges from acting as a witness. I.R.E 605. Additional rules to consider are the following excerpts from Indiana’s Jury Selection Rules:


RULE 5    DISQUALIFICATION

The court shall determine if the prospective jurors are qualified to serve, or, if disabled but otherwise qualified, could serve with reasonable accommodation.  In order to serve as a juror, a person shall state under oath or affirmation that he or she is:

(a) a citizen of the United States;
(b) at least eighteen (18) years of age;
(c) a resident of the summoning county;
(d) able to read, speak, and understand, the English language;
(e) not suffering from a physical or mental disability that prevents him or her from rendering satisfactory jury service;
(f) not under a guardianship appointment because of mental incapacity;
(g) not a person who has had rights to vote revoked by reason of a felony conviction and whose rights to vote have not been restored; and
(h) not a law enforcement officer, if the trial is for a criminal case.

Persons who are not eligible for jury service shall not serve.  Upon timely advance request from the prospective juror, the court may excuse from reporting for jury service any person whose bona fide religious conviction and affiliation with a religion prevents the prospective juror from performing jury service.

RULE 6  EXEMPTION

A person who has completed a term of jury service in the twenty-four (24) months preceding the date of the person’s summons may claim exemption from jury service.

RULE 17   CHALLENGE FOR CAUSE

(a) In both civil and criminal cases the parties shall make all challenges for cause before the jury is sworn to try the case, or upon a showing of good cause for the delay, before the jury retires to deliberate.   The court shall sustain a challenge for cause if the prospective juror:
(1)  is disqualified under rule 5;
(2)  served as a juror in that same county within the previous three hundred sixty-five  (365) days in a case that resulted in a verdict;
(3)  will be unable to comprehend the evidence and the instructions of the court due to any reason including defective sight or hearing, or inadequate English language communication skills;
(4)  has formed or expressed an opinion about the outcome of the case, and is unable to set that opinion aside and render an impartial verdict based upon the law and the evidence;
(5) was a member of a jury that previously considered the same dispute involving one or more of the same parties;
(6) is related within the fifth degree to the parties, their attorneys, or any witness subpoenaed in the case;
(7)  has a personal interest in the result of the trial;
(8) is biased or prejudiced for or against a party to the case; or
(9) is a person who has been subpoenaed in good faith as a witness in the case.
(b) In criminal cases the court shall sustain a challenge for cause if the prospective juror:
(1)  was a member of the grand jury that issued the indictment;
(2)  is a defendant in a pending criminal case;
(3) in a case in which the death penalty is sought, is not qualified to serve in a death penalty case under law; or
(4) has formed or expressed an opinion about the outcome of the case which appears to be founded upon
a.  a conversation with a witness to the transaction;
b.      reading or hearing witness testimony or a report of witness testimony.

(c) In civil cases the court shall sustain a challenge for cause if the prospective juror is interested in another suit, begun or contemplated, involving the same or a similar matter.

RULE 18   NUMBER OF PEREMPTORY CHALLENGES

(a) In criminal cases the defendant and prosecution each may challenge peremptorily:
(1)   twenty (20) jurors in prosecutions where the death penalty or life without parole is sought;
(2)   ten (10) jurors when neither the death penalty nor life without parole is sought in prosecutions for murder, and Class A, B, or C felonies, including enhancements; and
(3)   five (5) jurors in prosecutions for all other crimes.
When several defendants are tried together, they must join their challenges.

(b) In civil cases each side may challenge peremptorily three (3) jurors.

(c) In selection of alternate jurors in both civil and criminal cases:
(1)   one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated;
(2)   the additional peremptory challenges under this subsection may be used only in selecting alternate jurors; and
(3)   peremptory challenges authorized for selection of jurors may not be used in selecting alternate jurors.

(d) If it appears to the court that a particular peremptory challenge may have been used in a constitutionally impermissible manner, the court upon its own initiative may (a) inform the parties of the reasons for its concern, (b) require the party exercising the challenge to explain its reasons for the challenge, and (c) deny the challenge if the proffered basis is constitutionally impermissible.

Be prepared and ready, so that you can keep that one bad apple off your next jury. Good luck!

Assuming… How Experts Try to Make an Ass Out of You and Me.


Assumptions are a nefarious tool of “hired gun” experts. If you do not critically look at the underlying assumptions of the expert, you could be allowing the expert to take unfair advantage of your client’s case. Assumptions are the foundation upon which an expert opinion rests. A house with an unsound foundation lacks structural integrity and is potentially dangerous to the occupants. The same is true for experts. You can hit them where they live, if you can show their assumptions are unsupported by the evidence or science. Your starting point is identifying what assumptions the expert is making. Is there a more accurate source for this information?

Guesses Versus Actual Evidence
For example, an expert in determining speed uses a table for the coefficient of friction for a roadway based upon the type of surface it has, asphalt. He is assuming that all black top roadways have the same coefficient of friction. However, this varies from roadway to roadway. The most accurate way to find the coefficient of friction is to actually measure it. Textbooks on accident reconstruction in fact recommend that you do this if possible. Or an expert uses photographs to find specific locations for purposes of scene measurements. However, instead of using the more time-consuming, exact and accepted method of triangulation, he “assumes” that he can just “eyeball” the site. The expert may fail to find the type of camera and len’s length that was used to take the scene photographs. If a zoom lens is used, it can lead to visual distortions of what is being depicted. Everyone for example has seen a picture of what appears to be a “giant” moon when the camera shot is taken with a telephoto lens.

Assumptions About Credibility
Is the expert choosing between two conflicting pieces of evidence and selecting the evidence that best supports his client? If two eye-witnesses have testified to different versions of what occurred, the jury, not the expert, has to assess the witnesses’ credibility and weigh the evidence in order to determine the outcome.

Garbage in Garbage Out
Has the expert missed or ignored critical evidence that could affect his determination of causation or etiology? When a doctor makes a differential diagnosis, he has to eliminate other conditions or illnesses that could give rise to the same symptoms. For example, a person is claiming permanent brain damage from a collision. However, the same person has a long history of alcohol abuse and atrophy of the brain. This condition can lead to the same sort of cognitive problems/symptoms as a traumatic brain injury per the Diagnostic and Statistical Manual of Mental Diagnosis. However, the expert is unaware of the condition. Per the DSM-V this history is listed as a condition which must be eliminated for an correct differential diagnosis to be made. The doctor or neuro-psychologist has assumed that the person has a normal brain prior to the collision. This faulty assumption rocks the very foundation of the expert’s opinion and undermines his credibility before the jury. Most expert’s will agree that in order to reach accurate opinions, you must first have accurate and complete information.

Real Science versus Junk Science
Has the expert embarked upon and reached an opinion through means or methods which are not accepted in the scientific community at large? Is there main stream science which supports their means of reaching such a conclusion? Has their method of analysis been shown forensically to reach correct determinations. If the hired gun did a paper review of a file and determined that your client was not injured or will not have medical problems in the future, has the expert ever conducted a study in his cases to see how accurate his opinions are? Has a scientific journal found or study ever been performed validating medical records reviews as accurate predictors? Does the doctor or expert agree to accept professional responsibility if his conclusion is incorrect and your client is denied future medical benefits or can no longer work due to their injury? In other words, is the expert willing to put his money where his mouth is?

Does the method meet the requirements under Rule of Evidence 702 and the Frye Test or Daubert Analysis? See Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469, (1993). The Daubert rule states, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” In Daubert, the Court stated that evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid. The older Frye test announced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), is met if the evidence sufficiently established that the method has gained general acceptance in the particular field in which it belongs.

Is the evidence relied upon by the opposing expert, the sort of evidence generally relied upon by experts in the field to make a determination as required under Rule of Evidence 703. This rule provides that:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Assuming Expertise in an Area Outside Their Field of Expertise
Is the expert venturing outside of his field? Is he really an expert on the matter he is testifying about? Void dire the expert on his qualifications and have the court exclude him if possible, or narrow his expertise and render his opinion useless or unreliable. Just because you are an expert in one area, does not make you an expert in all areas.

Arguing the Unfairness of Assumptions to the Jury

A good argument I have heard made on the unfair use of assumptions goes something like this:

When you are deliberating over your verdict, and thinking about and weighing the evidence in this case, ask yourself whether or not you are making assumptions. Ask yourself whether you are allowing opposing counsel or his so called expert to put their thumb on the scales of justice. This is something you must carefully guard against – you must make sure this “thumb” plays no part in your deliberations or in your verdict.

Think of this thumb as the “thumb of injustice: injustice because it allows the opposing party to prevail without actually presenting proof of anything or relying on real evidence. This thumb also represents all of those assumptions that they are hoping you will make in this case about the accuracy and reliability of their so called “scientific evidence”. If, when you are thinking about the evidence, lack of evidence or conflicts in the evidence in this case, you believe that assumptions are playing a part in your deliberations and you allow it to continue and to affect your verdict, then the only thing that can happen is an unjust verdict. If you allow these assumptions to enter the deliberation room, then there is a very real possibility that the verdict you reach will not be based on the evidence, but will be based, instead, on nothing more than a series of inappropriate assumptions, and assumptions are not evidence.”

Remember, when you assume, you make an “ass” out of “you” and “me.”

I hope these thoughts help you spot faulty assumptions being made by experts and their weaknesses so that you can take advantage of the opportunities they present on cross-examination.

When Compromise Must Be Avoided

Justice oftentimes is victimized in the name of “compromise” and “fairness”. Have you ever been in a negotiation in a case with a mediator and asked for a range for settlement purposes. The natural inclination is to equally split the difference and assume that you are willing to do so. However, a range is just that, a range. A continuum where a compromise could be reached. That point is not necessarily in the middle nor would this be fair. Without guidance a jury has a tendency to do just that, compromise and split the difference between your client’s number and that suggested by the other side.

What about trading in an old car. Everyone has faced this same dilemma. Should you have to accept less than what your car is worth by splitting the difference between its real value and the sum offered by the used car dealer? Isn’t it worth, what its worth? Should someone be able short change you through such a tactic? Of course not.

If two teams were playing each other in basketball and one team is violating the rules through excessive contact and fouling, would it be unfair for that team to have substantially more fouls called on it, than the other team which was playing by the rules? Should the foul count really be even under such circumstances? Would it be fair for the referee to give in to the coach of the team that was excessively fouling and breaking the rules just because they whined and complained loudly? Of course it would not be fair… in fact it would be wrong. Why should it be any different in a jury trial where a client’s future well-being is at stake?

Splitting things down the middle just is not always fair. In the Old Testament, 1 Kings 3:16-28, King Solomon had to decide between two woman who both claimed to be the mother an infant son. The two women appeared before King Solomon for purposes of settling the dispute. After deliberating, King Solomon demanded his sword be brought forward and announced his decision to the split the baby in half if the two women could not agree upon whose child the infant was. Each woman would receive one bloody lifeless half of the infant’s body. Upon hearing this terrible verdict announced, the boy’s true mother cried out, “Oh Lord, give the baby to her, just don’t kill him!” The spiteful and deceitful woman who wrongfully made claim to the infant, responded, “divide it!” King Solomon upon hearing this, declared the first lady as the infant boy’s true mother, for spitting the baby down the middle would have been a terrible injustice.

Moe Levine, a prominent New York trial attorney guided jurors around this tactic of “compromise” and “fairness by division” arguing:

If my client’s case is worth, $100,000 and you compromise and give him $50,000 instead, then this leads to one half justice and one half injustice. If you have given 90% justice, you have at the same time given 10% of injustice. My client is entitle to full justice in this case. Nothing more and nothing less.

Compromising and splitting things down the middle here would be justice denied for my client.

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