Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

28419133_sThe cooler sat in the  courtroom throughout the trial. A 40.5 gallon Igloo fishing cooler, it was a key piece of evidence in the murder trial of an attorney, Tom Capano, charged with killing his lover who was the Delaware Governor’s scheduling secretary. A recent story in Delaware Online focuses on one of the jurors, speaking out now for the first time almost two decades after the trial. That juror, Erin Reilly Lee, got inside the evidence — literally. See, it turns out that the volume of the cooler was important, because Capano’s defense was that his lover, Anne Marie Fahey, was actually killed by another of his mistresses in a jealous rage, and Capano said he just panicked and placed the body in the cooler without giving it much conscious thought. Cross-examination, however, focused on the fact that getting a body into that cooler would have been quite the chore, involving twisting limbs and breaking bones. It wouldn’t have been, the state claimed, something planned and worked at, not the distraught act of a disoriented bystander. 

So the juror, Ms. Lee, tried it out during deliberations. When the rest of the jury decided that she was the one most similar in size to the victim, perhaps even a bit smaller, she became the ideal candidate. And the verdict? “There’s just no way,” she said, and since the defense did not square with her own hands-on test, “you lose all your credibility.” Capano was convicted and died in prison. That circumstance might have been unusual, but the motivation for jurors to try it out themselves is actually pretty common. I recall one recent case where we held a mock trial focused on the fit and retention system for a sports helmet. As samples of the helmet in question went back to the mock juries, we got to watch all three juries pick a person to try out the helmet as others tried to pull it off without unclasping it. Of course, jurors had heard about the company’s own biomechanical testing, as well as the expert opinions from each side. But all of that paled in comparison to jurors’ own ability to try it out themselves. That is something litigators should account for: If there is a way for jurors to test a case theory by manipulating the evidence themselves, they will do so.  

Expect Juries to Engage With the Evidence If They Can

If a physical object goes back to the jury room with the jurors, expect them to use it. When jurors are at an impasse, the demonstration can also serve as a kind of tiebreaker. There are also a couple of other reasons why they’re motivated to try it themselves. The first is probably that they’re bored. Based on what is a common working life for a typical juror, they simply aren’t used to sitting and analyzing an abstract issue. Lawyers do that normally, but nearly everyone else doesn’t. Physical engagement with the evidence is attractive because it gives jurors something to do, and not just something to read, to think about, or to discuss. 

The other reason jurors like to interact with the objects or try to demonstrate and reenact is that it puts them in control. Understanding that each side is trying to slant the message in their own favor, jurors aren’t inclined to trust counsel, parties, or hired experts. So they tend to trust their own tests and demonstrations more. 

So Account for It

Attorneys for the parties should expect that, once jurors are in the privacy of the jury room, they will try to test the evidence in every way possible, and when they can, they will physically interact with it. So it is good to know what is likely to happen when they do. A mock trial is a good time to learn that: Give them the items and watch what happens.

What you learn should influence your opinion on whether jurors should receive the item in the juror room or not. Clearly, you should side with a decision to send it back with them only if it is more likely to help you than to hurt you. The fact that it is relevant and that jurors would want to engage with it isn’t a strong enough reason, since a flawed self-conducted demonstration is likely to influence their deliberations. The instructions might tell them to approach it logically and to listen to the evidence, but a personal demonstration will be hard to ignore. 

Finally, if the item does go to the jury room with the jurors, make sure they have clear and convincing instructions on how to engage with it. In the helmet case discussed above, for example, it would make sense to have a witness do what we know the jurors are going to do: adjust it, put it on, then see how easy or how hard it is to pull the helmet off. With an effective demonstration, the jury will at least have some coaching on what they’re likely to do on their own. 

As in the Capano case demonstrations, you just cannot have an ice chest sitting in the courtroom through trial, with lawyers and experts talking about the ease or difficulty of putting a person inside, and not expect the jurors to climb in it themselves. 


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