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Empowering Jurors… Justice or Injustice: A Book Every Attorney Should Read!

I just finished reading Justice or Injustice: What Really Happens in a Jury Room and it has some profound lessons for every trial attorney… Especially those in the criminal arena.

It is a short piece of non-fiction about a juror’s participation in a capital murder case and outlines the dangers that can occur when jurors do not know their right to hang a jury and hold onto their heartfelt and honest  opinion on a just verdict.  Compromise while expedient is not necessarily fair and just. Jurors are under tremendous pressure and really need our help and guidance in understanding the process and their rights.  David Ball, a jury consultant, refers to this as arming jurors by referring to evidence and testimony they will use in their deliberations. See Theater Tips and Strategies for Jury Trials by David Ball (Author)

As trial attorneys, we need to empower jurors by letting them know that they have an absolute right to disagree, hold-out and hang a jury if necessary to serve the ends of justice. If we do not explain this, then our clients could end up on the wrong end of a coercive verdict. A group of jurors uncertain about their right to disagree eventually capitulate to the majority out of doubt and fear over disagreeing with the majority in the case of Kimberly Renee Poole.  According to the author, the jury foreperson pushed the minority to change their verdict of “not guilty” primarily focusing on character evidence of the defendant’s background as a stripper and swinger claiming she deserved jail.  Alone afraid, uncertain, tired, and nicotine deprived the last hold-out (the author J.L. Hardee’s) surrenders to a guilty verdict. After the trial, it was learned that the foreperson had a close ties to the prosecution which were not disclosed in voir dire. His post verdict efforts to reverse what happened are discussed but ultimately unsuccessful.

Although one was not given in the case, the story also demonstrates the danger of an Allen Charge or dynamite charge as it is sometimes referred to by the courts.  See Allen v. United States, 164 U.S. 492 (1896). Such a charge is used to encourage jurors in the minority to reconsider their position.  About half of the states in the United States prohibit such a charge because of its potential to unjustly influence and interfere with the jury decision process.

So arm your jurors with knowledge of their important obligation and responsibility as a juror including the following:

1.    Their factual decisions are forever.  This is your client only chance to get this right.  Except in rare instances, appellate courts review legal rulings not factual findings.

2.     Lady Justice is blindfolded for a reason.  She is not influenced by station of life, background, color race, appearance, wealth, sex, religion or creed.  Her protections are bestowed on every single citizen. Jurors are sworn to decide a case fairly and impartially without bias prejudice. If someone tries to decide the case based upon something other than the judge’s instructions and the evidence relevant to those legal issues, then they should be reported to the court immediately.

3.     While jurors should not be afraid to honestly reconsider their position during deliberations, they are fully within their right to disagree with their fellow jurors.  No one will punish them for doing so.

4.      While this may be the most difficult thing they have ever been asked to do, they must be strong and courageous if justice is to prevail as your client’s fate is in their hands.

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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 Preservation of Challenges for Cause

The great thing about our system of democracy is when they call you for jury duty, you have to come… It’s an honor and a privilege. I was called and I’ve got to be here.    – – Antonio Villaraigosa

Pursuant to Indiana’s long-standing rule, a claim of error arising from the denial of a challenge for cause is waived unless that party used any remaining peremptory challenges to remove the challenged juror or jurors.   In Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983), the Indiana Supreme Court stated “[o]ur law on this issue is well settled. We have consistently held that to preserve any error the defendant bears the burden of demonstrating that at the time [he or she] challenged the jurors for cause,[he or she] had exhausted [their] peremptory challenges.” Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind. 2002). The rationale for this approach is that “where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venire person, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. To guide attorneys through the field of venire challenges, our supreme court devised a clear and predictable road map.  You must use any available peremptories to correct erroneous denials of challenges for cause if they are available. If on appeal you then prove both the erroneous denial and that you were unable to strike another objectionable juror because you exhausted your peremptory challenges, you are entitled to a new trial. Id. at 1237.

Failure to correct the problem yourself, if possible through the use of a peremptory strike, waives any error caused by the trial court’s denial of your challenge for cause.

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.

Mastering the Rules of Evidence: Is it really important?

Early in my career, the “rules” of evidence were derived by reading case-law and the handful of statutes that addressed privilege and competence. If you wanted to know the “rules”, you had to research and read case-law. The only ready compendium were books like Graham’s Handbook on Federal Evidence. Today, litigators in every state and federal.court have a set of rules modeled after the ones used in federal courts.

If you want to master the rules, you need to read them through, beginning to end before every bench or jury trial. This will remind you of potential problems you need to address in you motions in limine, your exhibits and witnesses‘ testimony. You will spot problems with evidentiary proof you might otherwise overlook in your case and that of your opponent. You will better understand the policies behind the rules and the significance of the various sections of rules that deal with preliminary questions of fact, objections, offers to prove, judicial notice, relevancy, character evidence, impeachment, lay and expert witnesses, hearsay, authentication and alternate forms of proof approved for use at trial to prove a document’s content. Eventually, you will be able to cite the significant rules by number which will enhance your credibility with the judge and jury. It will also unsettle your opponent and inhibit his willingness to object to your questions, witnesses and exhibits since he won’t want to look bad in front of the jury by having his objection overruled. If you have a smart phone, there are applications that will contain the Rules of Evidence that you can readily reference such as Lawbox.

So get start today! It will increase you competence and your confidence in the courtroom.
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How to Stay Organized During Trial

Need a system to keep all your witnesses and exhibits organized? Well sometimes the best system is the simplest one.

I use a separate folder for each witness and each exhibit. I make sure all the folder tabs line up in a single row for the witnesses and label each witness folder with their last name, first name or if it’s a record keeper I use the name of the organization. By using a single row of tabs you can quickly thumb through the files without having to scan side to side. I then alphabetized the folders from A to Z.

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In each witness folder, I keep a copy of the witness’s outline and a copy of any exhibits needed for the witness. This way if I need to run out and meet with a witness, I just pull their folder and run. Because of my preparation, I know I have everything in hand I need to deal with that witness.

Each exhibit is also kept in a separate tabbed folder or tabbed binder and is sequentially pre-numbered or pre-marked with a letter. The folders or tabs are then sequentially ordered just as was done with the witnesses.

I also prepare two lists, one for witnesses and one for exhibits. Witnesses are listed alphabetically with the number or letter for each exhibit to be shown to that witness listed in the adjacent column.

I create a second list with exhibits sequentially listed and all witnesses crossed reference for each exhibit. On this list i also have columns to note if an exhibit was tender into evidence and whether it was admitted or excluded. This way you or your assistant can know exactly which exhibits need to be pulled, shown to and covered with each witness. You also can track if you need to make an offer of proof for exhibits excluded.

I outline each element of proof for my claim(s) and list the witness and exhibit which supports each separate element of the claim(s). This way you can easily respond to a motion for a directed verdict by outlining the proof which was entered through the testimony of specific witnesses and the exhibits on your shorthand list of proof.

I have successfully use this system for trials involving dozens of witnesses and hundreds of exhibits. It is simple and it works. It also keeps your table organized and uncluttered which conveys to the jury you know what you are doing.
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