Source of the following article Persuasive Litigator.
By Dr. Broda-Bahm:
When I give the orientation at the beginning of a mock trial, I’ll typically say something like, “Because this is a shortened version of a trial, you aren’t going to be able to hear everything. We will boil it down, summarize, and avoid some of the details, and we do that only for the purposes of time. We know it can be frustrating when there are things you’re not hearing, but what we want is your reaction to what you are hearing.” Though it is incomplete, that explanation is probably more comprehensive than what jurors hear in court. When evidence is excluded, they just won’t hear about it. Or the judge will sustain an objection, disallow a juror question, and the trial will simply move on. The law assumes that the jury simply focuses as directed on what they are told, and won’t be distracted by what they’re not told. A recent example from Seattle, however, reminds us that this isn’t always the case.
Last year, Che Taylor was shot and killed by two Seattle police officers. The 46-year-old African-American, based on officer testimony, appeared to be reaching for a gun and both officers opened fire with a rifle and a shot gun. The King County case was decided, not through a conventional trial, but with an inquest using a jury to determine whether the officer’s use of deadly force was justifiable or not. After eight days of testimony and two days of deliberations, the inquest jury returned answers to fifty-five fact-based questions, and then the prosecutor announced that charges would not be filed against the two officers. To one juror, however, that answer was deeply unsatisfying based on a lack of answers during the inquest. The juror, Rainier Beach dance teacher Jenna Mitchell, went public with her concerns in a special to The Seattle Times. “Based on the number of questions that went unanswered during the inquest,” she wrote, “our answers may have been different and therefore resulted in a different outcome.” Because it is still relatively rare to hear from the jurors themselves, I think it is important to pay attention to those views. This post will look at some of Ms. Mitchell’s reasons and what they say more generally about the concerns jurors are likely to have when there are unanswered questions.
From the Jury Box: No Answers Can Feel Like No Justice
Jenna Mitchell begins by noting the absence of African-Americans on the jury, and her feeling that, up against the power of the police and the prosecutors, the Taylor family was at a disadvantage. But her main complaint had to do with unanswered questions about policy training and procedures that the jury seemed to think were critical.
Her thoughts are worth quoting at length:
“At the end of each witness’ testimony, the jurors had the opportunity to submit questions for the witness to the judge. Many of our questions focused on Seattle Police Department policies and procedures. However, it seemed that most policy or training questions we asked were excluded by the judge, leaving us in the dark about a topic we felt was very relevant.”
“Seattle Police Department policies and procedures were never introduced during the inquest. In fact, it seemed to be off-limits completely, and none of us understood why. The jury was left with many unanswered questions. When are police officers trained to use lethal force? Do they receive training in how to diffuse situations? When is it appropriate for police officers to use a shotgun, as opposed to the pistol they normally carry? Are there procedures officers are required to follow when making an arrest, regarding verbal communication, arrest locations and safety of the suspect? Left unanswered, these questions made our deliberations more difficult and limited our ability to accurately answer the questions concerning Taylor’s death.”
“I believe that Taylor’s death and the outcome of the inquest hinged in large part on the choices the officers made about when, where and how to arrest Taylor. Consequently, it would have made sense for us to know when, where and how they are trained to arrest suspects.”
“As members of the inquest jury, we were chosen to serve as the voice of the people. However, because police-department policy and training were not addressed in witness testimony and because many of the questions we asked didn’t get answered, our findings told an incomplete story. Che Taylor and his family deserve more than that.“
In short, what it seems that she and other jurors wanted to know is, when it comes to the officers’ response, was this an aberration, or was this standard training and procedure? The lack of an answer to that question seemed to be the key factor in her discomfort with the jury’s results and the prosecutor’s decision.
When You Can, Justify the Exclusion
It only makes sense that it is more comfortable to know why the information is being excluded. For that reason, we tell our mock jurors why information is summarized, why some information is left out, and why the whole thing is confidential. Taking the example of the Che Taylor shooting, I don’t know the reason the Seattle Police Department’s training and procedures seemed to be off-limits during the inquest. But I suspect there are some reasons. From the County’s perspective, for example, the inquest should focus on the incident and should not put the entire procedure and training program on trial. Alternately, from the perspective of the family, it would not make sense for the perception that the officers were “just following procedure” to be a defense when it shouldn’t be. Whatever the reasons, I suspect that Mitchell and others on the jury would be much more comfortable focusing on the evidence that they hear if they know why the other evidence is being kept out.
And When You Can’t, Justify the Focus
But here is what is often the problem in explaining excluded evidence: You can’t talk about what you can’t talk about. In other words, any explanation of why something is excluded risks running afoul of the exclusion itself. In an abundance of caution, judges tend to default to the stance that “Nobody gets to talk about it,” and trust that this won’t be a problem for the jury because they’ll follow the instruction to just focus on what is allowed in. It is also easy to imagine situations where attorneys would abuse the ability to explain an exclusion (e.g., “I would tell you all about the defendant’s prior criminal history, only I can’t because…”). So you may not be able to say, “We’re not focusing on X because…,” but you are able to say, “Our focus is on Y because…” In Seattle’s inquest on the shooting of Che Taylor, it is possible Mitchell and the other jurors may have been more comfortable if the Court or the prosecutor had been able to clarify that the only legal questions, for example, focus on whether the officers had a reasonable belief that Taylor posed an immediate threat to themselves or others, and for that reason, the inquest is focusing only on actions and reasonable perceptions on the scene, and not on any other issues.
That may not have been a perfect explanation, but it could have been better. The bottom line is that jurors are not just passive receptacles who take what they’re given and focus where you focus. They’re humans who react to what they’re told, while also wondering about what they’re not told.
Other Posts on Juror Rights:
- Support a Jurors’ Bill of Rights
- Don’t Fear Juror Questions
- No, Don’t Repeal the Civil Jury: A Response to Professor Renee Lettow Lerner
Image credit: 123rf.com, used under license, edited.