Keeping a Jury Involved During a Long Trial
Harold Bursztajn
Linda Stout Saunders
Archie Brodsky
Harold J. Bursztajn, a clinical and forensic psychiatrist is
associate clinical professor and co-director of the Pro-gram in Psychiatry
and the Law at Harvard Medical School, and actively treats patients and
testifies as an expert and trial consultant.
Linda Stout Saunders is president of the New Hampshire Trial
Lawyers Association.
Archie Brodsky is a senior research associate with the Program
in Psychiatry and the Law at Harvard.
Presenting complex, unfamiliar evidence to a jury in a long trial in
which emotions are running high is a formidable task. When jurors
hear a case that stretches over weeks, even months, they often become
bored and resentful, making them especially susceptible to falling
back on their preconceptions and prejudices. Combine these emotions
with a sense of fear and helplessness about going through such an
arduous process, and lawyers can foment this mixture into desires
for revenge against the defendant, the prosecution, or, as may have
happened in the O.J. Simpson case, against law enforcement and social
ills such as racism.
Isolation from loved ones and well-known surroundings results in jurors
creating a safe mental environment, especially when exposed to complex
evidence that can appear threatening by its very unfamiliarity. Thus,
when jurors retreat from the boredom of a long, complex trial by
daydreaming or dozing off, they hear the evidence through the filter
of their own memories, fantasies, and dreams. For example, psychosis
is unfamiliar to most people, so in an insanity defense case, jurors
typically re the familiar experience of being sane, discounting the
feasibility of insanity. When complex DNA evidence is introduced
in a trial where race is an issue, jurors may fin own experience
of discrimination based on the factor of skin color to be the most
salient point which to make their judgments.
Of the various reforms proposed, such as not sequestering juries, limiting
the use of peremptory challenges, barring television cameras from
the courtroom, and shortening the duration of trials, it makes more
sense to ask how the jury's time can best be used. The most promising
forms are those that would involve the jurors as active responsible
participants. One suggestion is to allow juries ask questions of
the trial witnesses.
In medicine, the patient's participation in a dialogue with the physician
has been recognized as a valuable of the decision-making process.
Dialogue is also the of group psychotherapy. A successful medical
mode could translate to the courtroom is the group therapy grams
that are used in treating those addicted to self limiting or self-destructive
lifestyles. These individual largely resistant to preaching about
the evils of, say, alcohol, but they do benefit from an interactive
approach confronts their own preconceptions.
As an example, individuals who have been drinking heavily for years often
have atrophied problem-solving skills. In the group therapy session,
the group leader elicits each individual's prejudices without endorsing
them. If someone says, "Being drunk makes me a better driver," the
leader asks how that is so. The person may then ex-plain that without
alcohol, he or she becomes so preoccupied by personal problems as
to be distracted and over-anxious behind the wheel. The leader then
asks, "Is there any other way besides drinking to keep yourself
from getting so preoccupied? Does anyone else have any suggestions?" In
time, the group members take over more of the work from the leader
and build a fund of shared experience that becomes familiar, so that
they can draw on it for alternatives to their former beliefs and
habits.
It's likely that juries, too, would deliberate more effectively if they
could draw on such shared experience in problem solving. Deliberation
is a public interchange-an airing of hypotheses and conclusions in
the corrective light of social reality-and not just a silent consultation
with one's personal beliefs, feelings, or ideals. But how can jurors
engage one another in deliberation if they have been sitting passively
for months, as the Simpson jury did?
To set the stage, the jury must be actively involved in the trial itself.
The machinery already exists in the practice of allowing jurors to
question witnesses through the judge. The Federal Rules of Evidence
(Fed. R. Evid. 614(b)) establishes the right of a federal trial judge
to question witnesses, and federal and state courts have held that
it is within a trial judge's discretion to permit questions from
jurors. Judges in at least 30 states are soliciting written questions
from jurors and posing them to witnesses after screening them with
the lawyers from both sides.
Some legal observers urge that this procedure be more broadly utilized.
Studies by the American Judicature Society, the State Justice Institute,
and other organizations have shown that allowing jurors to ask questions
keeps them alert, focuses their attention on relevant issues, and
enhances their sense of participation and responsibility judges find
these benefits especially clear in complex cases.
By encouraging jury involvement, the judge can help the jury move from "hot"
to "cool" decision making a term coined by psychologist Irving
Janis. Hot decision making is driven by the passions of the moment; people
grasp for instant solutions to relieve emotional pressures and conflicts
among themselves. Cool decision making is fostered by openly addressing
uncertainty and talking out the issues.
Trial lawyers sometimes seek to stimulate hot decision making, such as
when the prosecution plays on the jury's sympathy for crime victims,
or, as in the case of O.J. Simpson; when the jury appears to identify
with the defendant as a fellow prisoner in the long trial. But when
the judge allows jurors to be more than silent observers, and refuses
to yield control of the case to the lawyers, the judge can control
the heat of the decision making by the tenor of his or her questions
to witnesses as well as by guiding the jurors questions. The judge
engages jurors in a dialogue, demonstrating by example how they can
question not only witnesses, but also each individual juror's personal
beliefs and prejudices.
When jurors are invited to ask questions, their concerns and uncertainties
can be addressed. Through the leader-ship of the trial judge, the
jurors can explore alternative ways of understanding the grains of
truth around which prejudices coalesce. Although trials will never
in and of themselves be therapeutic, trials in which jurors participate
actively will have the potential for healing rather than exacerbating
the divisions in our communities.
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Bursztajn, HJ, Saunders, LS, and Brodsky, A. "Keeping a Jury
Involved During a Long Trial." Criminal Justice. 1997; 11:8-9.
