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.

  1. Bursztajn, HJ, Saunders, LS, and Brodsky, A. "Keeping a Jury Involved During a Long Trial." Criminal Justice. 1997; 11:8-9.