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Limiting the Damage

So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme.  So what should you do?  

Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose.  The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:

 “If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”

The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”).  As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited.  Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:

During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.

Evidence relevant for some legitimate purpose,  can only be excluded if it violates the precepts of Indiana Rule of Evidence 403.  Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.

Keep these thoughts in mind the next time you need to limit the damage…

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I’ve Been Called for Jury Service… What Do I Do Now?

 THOMAS JEFFERSON (1789):  “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

My last blog post made me realize that potential jurors need guidance.  What is their role? What should they do if called to serve?  Jury service is the greatest civic responsibility we have.  Our service is necessary, if we want to live in a free democratic society.  Citizens have braved criticism, threat of punishment and public ridicule to give their verdict to insure liberty and justice for all.

The right to trial by jury is so important that it is guaranteed twice in the U.S. Constitution under the 6th and 7th Amendments for criminal and civil trials, respectively. Grand jury protection is required for the issuance of criminal charges in federal court under the 5th Amendment to the U.S. Constitution.

Here are some do’s and don’t to keep in mind:

1.    In the days leading up to your jury service, don’t read the newspaper or watch television or read the news.

2.    Dress like you respect the proceeding and be on time.

3.     Accurately and completely answer your jury questionnaire.  This is the primary source of information the attorneys will use in deciding if you should serve.

4.     Pay close attention to the questions asked by the attorneys during jury selection.  Fully and accurately answer the questions asked as someone’s well-being or liberty hangs in the balance.

5.    If you have a physical handicap such as language difficulty, eyesight or hearing problems, then let the bailiff and parties know of your limitations, even if not asked.

6.    Do not discuss the case with your fellow jurors until the Court says that you may.

7.    Tell the Court or parties if you have been subpoenaed as a witness in the case, are interested In a similar suit begun or planned, have an opinion as to the outcome of the case due to information received from a witness or news report, if you are a defendant in a criminal case, biased for or against a party, related to a party, are a felon or in law enforcement or otherwise cannot be fair.

8.     Jurors must be fluent in English and able to read and hear.

9.     Do not conduct research on your own or as a group,

10.    Do get rest.

11.    Do not use dictionaries, the Internet, or any other resource to gather any information about the issues in this case.

12.    Do not investigate the case, conduct any experiments, or attempt to gain any specialized knowledge about the case.

13.     Do not receive help in deciding the case from any outside source.

14.     Do not use laptops or cell phones in the courtroom or in the jury room while discussing the case,

15.     Do not consume any alcohol or drugs that could affect your ability to hear and understand the evidence,

16.     Do not read, watch, or listen to anything about the trial from any source whatsoever, including newspapers, radio, television, or the Internet,

17.     Do not listen to discussions among, or receive information from, other people about this trial, or

18.     Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

19.     Do not talk to any of the parties, their lawyers, any of the witnesses, or members of the media. If anyone tries to talk to you about this case, you must tell the bailiff or judge immediately.

20.     Do not discuss the case with anyone other than your fellow jurors.

21.     Do not abandon your opinions on what you believe is a just verdict just to get out of there.

22.     Be courageous. You are the embodiment of justice.

24.     Be respectful of your fellow jurors opinions, listen carefully and keep an open mind.

25.     Follow the judge’s instructions.

26,    Report anyone to the bailiff who fails to obey the court’s rules.

27.    Remember you cannot be punished for hanging a jury’s verdict.  Follow your conscience.

Good luck!

A Recipe for an Effective Closing Argument

20120115-144530.jpgBelow is a summary of some thoughts dealing with closing arguments which I would like to share.  Like a good meal, a closing argument is something which requires careful preparation and a judicious mix of ingredients in the appropriate quantities.   Below is my recipe for an effective closing argument.

Goals

            While it may seem intuitively obvious, the central goal of any closing argument is to prevail on behalf of your client. Any other objective is secondary. This is your last opportunity to speak with the jury and you don’t want to waste it. Below are some thoughts concerning how to best compile the central goal on behalf of your client.

Strong Opening Grab their Attention

As far as I am concerned, you want to begin strong and end strong. You are the director, producer and central author of the closing argument. Syd Field is the author of a number of books on screenwriting. His principles have equal application to the formulation of closing argument. In his book, Screenplay: Foundations of Screenwriting he talks about how important the first 10 minutes (approximately 10 pages) of your script are.  Screeners of scripts will typically look at the first 10 pages of the screenplay and if they don’t like it, they quit reading and toss the script to the trash pile.

Jurors are not much different. If you haven’t caught their attention in the first few minutes of closing argument, they are probably going to start daydreaming about what they will do once they’re out of the trial. Instead of spending a bunch of time at the beginning of closing thanking jurors or their service, I would recommend grabbing their attention with a snappy introduction while you have their undivided attention.

Themes

Themes act as a unifying thread of your case. It is a thing that motivates the jurors to take action. There are number of potential themes.  Watch movies and see how things are developed and the best ones. In fact, I have a book that contains nothing but quotes from various movies which I tried to interject in my closings to make them more interesting and compelling. Below is an example of a closing argument that I gave which dealt with the themes “profits over safety” and “accepting responsibility”.  This is the same case discussed earlier in my materials on direct and cross examination.  Here is the introduction:

This is an important case.  It’s important for a lot of reasons – most importantly, as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. King did not accept responsibility.  Mr. King ignored facts.  Mr. King ignored laws.  Mr. King was concerned about one thing and one thing only and that was himself.  One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety.  There are a lot of good reasons why we have our safety laws, but as I discussed you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.  Below is a short list of some common themes:

Safety –  We do not allow profits to take priority over safety.

Keeping Promises – A man’s word is bond.

Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.”  That is what happened here.

David & Goliath [Right v. Might]  –  Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

 Right vs. Wrong –  You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

Failure to Accept Reality –  Don’t Confuse me with the facts, my mind is made up.

Greed/Selfishness –  Such things often lead people to take short cuts and ignore their responsibilities to others.

Struggling to Overcome Impossible Odds –  Everyone cheers for a person who bravely soldiers on against difficult circumstances.  Perhaps your client was seriously injured and has struggled to regain some semblance of his life.  His efforts are heroic and worthy of the jury’s admiration.

Themes in cases are virtually endless and only confined by your imagination.  All great literature, including the bible, strike various themes that describe why we and what we should do.  Tap into these themes and use them to unify your argument.

Keeping Your Promises

As you move through your closing, it is important to link back to the themes and promises you made in your opening statement to show that you have fulfilled the obligations assumed in your opening statement. That is one of the reasons why you don’t want to promise anything in your opening statement that you can’t deliver on during the course of the trial.

Likewise, if your opponent has made promises and failed to fulfill them, you want to be able to point this out to the jury.  That’s why you always want to keep good notes of your opponent’s opening and in some instances you may even want the court reporter to partially transcribe the opening to drive the point home so that it can be quoted verbatim from the official transcript of the court.

Provide a Clear Request for Action

At the end of your closing argument, you want to clearly request the jury to take particular action on behalf of your client. This request for action can be addressed as you move through your closing. However, I always have a strong ending in my closing requesting action on the part of the jury.  Closing argument is similar to a pregame speech provided by a coach to his/her players. You want to motivate the jurors to take the action desired on behalf of the client.

If you can’t clearly request action on behalf of your client, how is the jury supposed to do so?  Here, is an example of such a call to action:

Our client would rather have his life back than a $1,200,000 verdict.  I suggest to you this is a seven-figure case.  I’ll leave it to your discretion to go through and look at these damages and analyze the jury instructions.  This case has been a heavy burden on our client.  It’s been a heavy burden on the attorneys to work it up, as you’ve probably seen these last four days.  But today we sit down and the job becomes yours.  And we appreciate your time and your attention to the case and know that you’ll do justice for him.

How Can I Help You?

I remember seeing Kent Rowe Sr. of South Bend, Indiana give a fairly dramatic introduction to defense closing argument in a serious personal injury case.  He looked at the jury and  asked:  “How can I help you?”  He stood there a moment, paused, and once he had the eyes of all of the jurors he moved forward and did just that… helped the jurors.  He answered questions about how they go about their job in looking through the evidence and applying the facts to the Court’s instructions.  He showed them how to handle the form of verdicts.  He posed and answered questions that were likely on the jury’s mind concerning the issues in the case.  By opening in such a fashion he crawled into the jury box and truly helped them to fulfill their duty to the justice system.

That is what we are called to do every time we deliver a closing argument… Help the Jury   reach the outcome we desire for our client.

Challenges to the Composition of the Jury Pool

A fox should not be on the jury at a goose’s trial. – – Thomas Fuller

A right to trial by jury is guaranteed under both state and federal law.   In a civil matter, a trial by jury is provided for under Article 1, Section 20 offox and goose 2, and the 7th Amendment of the U.S. Constitution.  These provisions  assure a citizen the right of trial by jury in matters tried at law.

In criminal matters,  the right to trial by jury is provided for  under Article 1, Sections 13 and 19 of Indiana’s Bill of Rights and the 6th Amendment of the U.S. Constitution.   The Constitution of the United States and the Indiana guarantee defendants in criminal cases and litigants in civil cases the right to a trial by jury.   Indiana law states that all litigants have the right to a jury selected from a fair cross-section of the community and that all eligible citizens shall have both the opportunity and obligation to serve.

Questions of equal protection under Article 1, Section 23 of the Indiana Bill of Rights and the 14th Amendment to the U.S. Constitution may be implicated when segments of society are disproportionately  excluded from service in the formation of the jury pool, or as through the exercise of a party’s peremptory challenges to systematically eliminate a particular class of people from the jury on the basis of race, creed, religion, sex or sexual orientation. Indiana Jury Rule 18 addresses how the Court is to deal with such problems.To secure an impartial jury, the Sixth Amendment requires that the venire be drawn from a fair cross-section of the community. Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 107 L.Ed.2d 905 (1990); Patterson v. Alabama, 294 U.S. 600 (1935), (held that an African-American defendant is denied due process rights if the jury pool excludes African-Americans). The Impartial Jury Clause of the 6th Amendment and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution require that the jury pool  fairly represent  a  “cross-section of the community”.   Glasser v. United States, 315 U.S. 60 (1942), (held that exclusion of women (other than members of the League of Women Voters who had taken a jury training class) from the jury pool violated the Impartial Jury Clause of the 6th Amendment, and not, the Equal Protection Clause of the 14th Amendment, under the  “cross-section of the community” analysis).   Questions of equal protection under Article 1, Section 23 of the Indiana Bill of Rights and the impartiality requirements of Article 1, Section 13 of the Indiana Bill of Rights may  be implicated when segments of society are disproportionately  excluded from service in the formation of the jury pool.

Ultimately, the quest is to obtain a fair and impartial jury.  This goal influences our court rules, statutes and case-law.  I hope this information provides a good starting point for any inquiries or challenges you need to make in securing a fair jury for your client.

Use of Peremptory Challenges and the Improper Exclusion of Juors

Ending racial discrimination in jury selection can be accomplished only by eliminating peremptory challenges entirely.  – – Thurgood Marshall

Number of Peremptory Challenges:  There’s no such thing as a free lunch and likewise, even the free strike of jurors provided by the use peremptory challenges is not its own costs and problems. However, there will be people that you cannot establish good cause to remove from the panel and will have to remove by use of peremptory challenges.  In capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges.  In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.

Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”).  In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges.  In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges.  In all state civil cases, each side has 3 peremptory challenges.  When several defendants are tried together, they must join their challenges.  Indiana Jury Rule 18.

As to alternate jurors, 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. Id.

Race:   Peremptory challenges based on race violate the juror’s Fourteenth Amendment right to equal protection of the law and require a retrial. McCormick v. State, 803 N.E.2d 1108, 1110 (Ind.2004); Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997). A defendant’s claim of racial discrimination in a peremptory strike triggers a three-step inquiry. See Bradley v. State, 649 N.E.2d 100, 105 (Ind.1995) (citing Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986)).

First, the trial court must determine whether the party has made a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96–97, 106 S. Ct. 1712. To make a prima facie case of purposeful discrimination, the complaining party must show that the excused juror was a member of a cognizable racial group and present an inference that the juror was excluded because of his or her race. McCants v. State, 686 N.E.2d 1281, 1284 (Ind.1997).

Second, after the complaining party presents a prima facie case of racial discrimination in the use of a peremptory challenge, the burden shifts to the opposing party to present a race-neutral explanation for striking the juror. Batson, 476 U.S. at 97–98, 106 S.Ct. 1712. A race-neutral explanation means “an explanation based on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality). Although the opposing  party must present a comprehensible reason and offer more than a mere denial of improper motive, “the second step of this process does not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767–768, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). If the reason is not inherently discriminatory, it passes the second step.  Id. “[T]he issue is the facial validity of the opposing party’s explanation. Unless a discriminatory intent is inherent in the opposing party’s explanation, the reason will be deemed race neutral.” Id. “[An opposing party] simply has to state his reasons as best he can and stand or fall on the plausibility of the reasons” proffered. Miller–El v. Dretke, 545 U.S. 231, 236, 125 S. Ct. 2317, 162 L.Ed.2d 196 (2005).

Third, the Court must determine whether the complaining party has established purposeful discrimination. Miller–El, 545 U.S. at 236, 125 S. Ct. 2317; Batson, 476 U.S. at 98, 106 S. Ct. 1712; McCormick, 803 N.E.2d at 1110. This third step involves evaluating “the persuasiveness of the justification” proffered by the opposing party, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. 1769.  Disparate treatment of similarly situated jurors satisfies this burden of showing the strike was racially motivated. Snyder v. Louisiana, 552 U.S. 472 (2008)(held  trial judge had acted improperly by allowing the prosecutor to peremptorily strike all African American jurors from the panel because the reasons given for striking the black jurors applied equally well to the white jurors the prosecution did not strike).

The analysis of Batson v. Kentucky has been applied in areas other than race and in civil cases. See Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)(civil case).  Below are some examples:

Gender:  J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994), (held women could not be systematically excluded from a venire).

Sexual Orientation: SmithKline Beecham Corporation v. Abbott Laboratories, 740 F.3d 471 (2014)(held in civil case distinctions based on sexual orientation are subject to the “heightened scrutiny” standard of review and that “equal protection prohibits peremptory strikes based on sexual orientation). Given the 7th Circuit’s scathing critique of anti-gay-lesbian-transgender restrictions on marriage and their application of heightened scrutiny as part of their equal protection analysis, it seems likely that a properly supported challenge on this basis would be upheld in our local federal courts.  See Marilyn Rae Baskin V. Penny Bogan,  ___  F. 3rd  ___ (7th Cir. 2014).

So chose wisely and exercise your challenges without improper animus or bias.

The Problem of Juror Bias

“A jury verdict is the quotient of the prejudices of twelve people.” Kenneth Grubb, Attorney

Anything I missed?   Juror Bias is a difficult problem that must be ferreted out by the trial attorney in almost every trial. Quite honestly, this can not be effectively done without the cooperation of the jury. I will often close my voir dire with a question such as this:

I have limited time to ask you questions. I learned long ago that I need your help to do the best job I can for my client. I may not have been smart enough to ask something which would have an impact, even a little on you coming into this with an open mind. Is there anything you would want me to know about your background that you are aware of that if you were in my client’s position here?

Is there anything you would want me to know about your opinions or philosophy that you are aware of that I have not asked about, that if you were my client, you would want me to know about?

The trial court shall sustain a challenge for cause if the prospective juror is biased or prejudiced for or against a party to the case. J.R. 17(a)(8). This is no small matter. If found after the trial has begun, it may require the grant of a mistrial. “Generally, proof that a juror was biased against [a party] or lied on voir dire entitles [a party] to a new trial.” Thompson v. Gerowitz, 944 N.E.2d 1, 7-10 (Ind. Ct. App. 2011)(med mal case), citing to, Lopez v. State, 527 N.E.2d 1119, 1130 (Ind.1988). To warrant a new trial, there must be a showing that the misconduct was gross, and that it probably harmed the defendant. Id.; see also Ind. Trial Rule 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). “The issue of juror misconduct is a matter within the trial court’s discretion.” Lopez, 527 N.E.2d at 1130. If substantial evidence showing a juror was possibly biased is brought to the trial court’s attention in a timely manner, it is incumbent upon the trial court to conduct a hearing, out of the presence of the remainder of the jury, to determine:

(1) whether the juror is biased; and

(2) whether the hearing itself has created a bias in the juror. Id.

The court should then allow the affected party to challenge the juror for cause, and should excuse the juror and declare a mistrial if bias is found to be present and infected the jury. Thompson v. Gerowitz, supra. However, establishing juror bias can be particularly problematic. Below is a discussion of some areas of potential bias or prejudice on the part of a juror.

Insurance     Voir dire questions regarding ownership in a specific insurance company or whether the potential juror was insured by that company are proper. Wisner v. Laney, 984 N.E.2d 1201 (Ind.,2012), citing with approval to, Stone v. Stakes, 749 N.E.2d 1277 (Ind. Ct. App. 2001), trans. denied.

I.R.E. 411 while not controlling, provides guidance on this topic as well, since the restriction on the introduction of evidence of insurance is not absolute and makes exceptions for proof of other matters. The court in Stone v. Stakes noted that Indiana Evidence Rule 411 states that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.” Id. at 1281. However, this rule “does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as . . . ownership, or control, or bias or prejudice of a witness.” Id. (quoting additional language from the evidentiary rule). The court further noted that although Rule 411 is an evidentiary rule not strictly applicable to voir dire, “it provides some guidance in this area regarding what categories of inquiry are acceptable. Rule 411 does not limit the allowable evidence regarding insurance only to financial interest, but also allows evidence going to bias or prejudice.” Id. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the Court stated:

[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.

Id. at 621. In this day of endless insurance company commercials, it seems unlikely such questions are any less relevant or any more likely to be unfairly prejudicial to a defendant than they were back in 1926. Questions embracing this topic would be appropriate provided the questioning is not prolonged or designed to attain some improper end.

Implied Bias – Juror’s 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. Noting 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 where the juror’s wife was a second cousin to a member of the prosecutor’s staff, Woolston found that, based on the juror’s relationship to the State, it was error for the trial court to deny the challenge for cause.

Knowledge of Matters Outside of the Court Record

Jurors are required to decide a case only based upon the evidence presented at trial and are not to consider matters outside the record. This point is made clear by a number of different provisions. For example, under I.R.E. 606(a), “[a] juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.” If a juror has specialized or particular knowledge outside of the record, they are not permitted to use it in either deciding the case or in their deliberations with other jurors, since to do so makes them in essence a silent witness in the case.

By analogy, judges are similarly prohibited from acquiring knowledge outside the record in deciding a case. Lillie v. US, 953 F.2d 1188, 1191, 34 Fed. R. Evid. Ser. 938 (10th Cir. 1992)(held where Judge based verdict on an unannounced view of the accident scene he violated Federal Rule of Evidence 605); US v Lewis, 833F.2d 1380, 1385, 24 Fed. R. Evid. Ser. 432 (9th Cir. 1987)(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).

Under Indiana Jury Rule 24, in a criminal case, if the court receives information that a juror has personal knowledge about the case, the court shall examine the juror under oath in the presence of the parties and outside the presence of the other jurors concerning that knowledge. If the court finds that the juror has personal knowledge of a material fact, the juror shall be excused, and the court shall replace that juror with an alternate.

When jurors possess knowledge as a result of their education or occupation, it is important to question the juror and make sure that they will decide the case based upon the testimony in court and not the knowledge they possess from outside of the courtroom. Otherwise, they become a witness whom no one had a chance to depose, question, rebut or impeach.

Likewise, knowledge of a case garnered from the press or other outside sources becomes problematic and must be dealt with under Indiana Jury Rule 24 (in criminal cases) to see if the juror has formed an opinion and if that opinion can be set aside and the case decided solely on the evidence presented at trial. Individual voir dire is required in addressing such matters.

In all criminal prosecutions, the accused shall have the right to a public trial, by a fair and impartial jury. See Indiana Constitution, Bill of Rights, Article 1. Bill of Rights, Section 13 and United State Constitution, Bill of Rights, Amendment VI; Ward v. State, 810 N.E.2d 1042, 1048 (Ind.2004), cert. denied, 126 S. Ct. 395 (2005). “At the heart of the decision on a motion for change of venue is the right to an impartial jury.” Ward v. State, supra; Lindsey v. State, 485 N.E.2d 102, 106 (Ind. 1985). A defendant must demonstrate the existence of two distinct elements:

(1) prejudicial pretrial publicity and

(2) the inability of jurors to render an impartial verdict.

Ward v. State, supra, 810 N.E.2d at 1049. “Prejudicial pretrial publicity is that which contains inflammatory material which would not be admissible at the defendant’s trial or contains misstatements or distortions of the evidence given at trial.” [Emphasis Added]. Ward v. State, supra, quoting from, Burdine v. State, 515 N.E.2d 1085, 1092 (Ind. 1987). In protecting a defendant’s right to a fair and impartial jury, the trial court may consider granting a change of venue, or change of venire as a means of achieving this end. When a change of venire occurs, the location of the actual trial does not change. However, a juror pool from outside of the affected area of pretrial publicity is brought in to serve.  Such motions need to be promptly raised (within 30 days of the initial appearance) or a party risks waiving the issue and being required to show good cause for failing to raise the matter earlier.

Regarding the examination of potential jurors, under IC 35-37-1-5 (b), “If a person called as a juror states that the person has formed or expressed an opinion as to the guilt or innocence of the defendant, the court or the parties shall proceed to examine the juror on oath as to the grounds of the juror’s opinion. If the juror’s opinion appears to have been founded upon reading newspaper statements, communications, comments, reports, rumors, or hearsay, and if:

(1) the juror’s opinion appears not to have been founded upon:

(A) conversation with a witness of the transaction;

(B) reading reports of a witness’ testimony; or

(C) hearing a witness testify;

(2) the juror states on oath that the juror feels able, notwithstanding the juror’s opinion, to render an impartial verdict upon the law and evidence; and

(3) the court is satisfied that the juror will render an impartial verdict; the court may admit the juror as competent to serve in the case.”

Covering these points should assist you in identifying and establishing juror bias. Good luck.

Jurors: Helping Them, Help You.

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“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
Thomas Jefferson to Thomas Paine, 1789.

Jurors… They are truly the heart and soul of our justice system. No invention known to man has a greater potential to add to the cause of justice than a jury. They represent a microcosm of democracy. All typically must agree on the outcome. There must be compromise and a degree of open-mindedness, if there is to be a resolution at all. Most arrive wishing they were somewhere else and leave transformed by the process of being asked, in the name of justice, to render a decision that will profoundly effect the lives of the litigants before them. Their collective intellect, wisdom and conscience is more powerful and productive of good than any single man sitting in judgment of another person’s actions or decisions. Under English law, jurors stood between the crown and it’s subjects. They acted as a check on tyranny by the crown against the people. The following analogy about the “Old Man, the Boy and the Bird” demonstrates a jury’s awesome power. I first saw this analogy recited years ago on “Sixty Minutes” by renowned trial lawyer, Gerry Spence. It is a fitting way to end a closing argument as Spence liked to do:

“I’m going to tell you a simple story, about a wise old man and a smartaleck young boy who wanted to show up the wise old man for a fool. The boy captured a little bird. He had the idea he would go to the wise old man with the bird in his hand and say, “What have I got in my hand?” And the old man would say, “Well, you have a bird, my son.” And he would say, “Wise old man, is the bird alive or is it dead?” The old man knew if he said, “It is dead,” the little boy would open his hand and the bird would fly away. If he said, “It is alive,” the boy would take the bird in his hand and crunch the life out of it and then open his hand and say, “See, it is dead.” So the boy went up to the wise old man and he said, “Wise old man, what do I have in my hand?” The old man said, “Why, it is a bird.” He said, “Wise old man, is it alive or is it dead?” And the wise old man said, “The bird is in your hands, my son.”

When is an Exhibit Sticker More Than an Exhibit Sticker?

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An exhibit sticker can do much more than identify an exhibit for the record. It can actually be used as an organizational tool to aid the jury in understanding what the exhibits are being used to prove, as well as, better understand your case and how it is being put together. When I was a federal prosecutor I handled a number of “complex” fraud cases and had to come up with my own system for tracking my evidence and proof for each count of the indictment and the various overt acts of the conspiracy count.

I used my indictment as a narrative tool to help the jury follow my evidence and cross-reference which exhibit helped prove which count and corresponded with the various overt acts in my conspiracy count. My conspiracy count was organized like a short story with each event (overt act) referenced on the exhibit sticker along with any separate substantive count for other the crimes separately charged.

For example, Exhibit 44 – OA (d) – CT 15 would tell the jury that the Exhibit 44 was being used to prove overt act (d) of the conspiracy count and Count 15 of the indictment. I would also annotate my copy of the indictment’s substantive counts. At the bottoms of each count on my copy of the indictment, I would list the witnesses that authenticated the exhibits, provided forensic testimony, or other supporting evidence as well as list the corresponding overt act of the conspiracy count. This allowed the jurors and court to easily follow my proof at trial. It also permitted me to easily address any motion for a directed verdict by specifically identifying the witnesses and evidence that proved each count.

By keying the overt act to the exhibit, the jury could easily move through the proof and see that I had established each count. The jurors had no trouble following my story. I numbered the exhibits in chronological order to fall in line with my overt acts. I numbered my counts chronologically as well. The jury could take the exhibits delivered to them by the bailiff which were submitted to them in numerical order and work through the indictment with little confusion. This would lead to rapid verdicts on very complicated cases. This also built up trust between the jurors and myself. They knew I cared about them and wanted to make their job as easy and efficient as possible. This system avoided confusion in the jury room. Using this numbering system with my organizational system discussed in my earlier post entitled: “How to Stay Organized During Trial” allowed me to gain control of the courtroom and the trust of the jury and judge.

One caveat, I would make sure you explain the system both in opening and closing, and ask the jurors to pay special attention. Invariably, jurors assume someone else will be taking down notes and fail to focus on your explanation. I learned this lesson the hard way when the only note taker on the jury was removed prior to deliberations and no one else had paid close attention to my explanation. The jurors sent a note to the judge asking for me to explain the numbering system again. The judge refused to honor the jurors’ request. Eventually, they figured out the system and made short work of the case.

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