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.