"A jury consists of 12 persons chosen to decide who has the best lawyer." - Robert Frost
The Lawyerist recently published an article titled What Jurors Think About Attorneys, which was based on data collected from juror surveys over 10 years from 109 jury trials (mostly criminal). This information is important to consider in preparation for jury selection.
Despite the articles title and the study's focus, the real take-away is that it appears to confirm the general predispositions, opinions, and attitudes people have about defendants and defense attorneys.
Regardless of the outcome of the trials, the jurors' scores for defense attorneys were lower than plaintiffs' attorneys across the board.
The Assumption of Guilt
When a person has been accused of a crime, they are named as a 'Defendant,' identified by a case-tracking number, and prejudged by the name and nature of the crime(s) with which they are charged. The presumption of innocence that is afforded to each of us is seemingly replaced by an assumption of guilt. It is a stigmatizing and de-humanizing process.
This study appears to reaffirm the prejudicial impact that merely being charged with a crime has on the defense, both the defendant and defense attorney. The stigma that a defendant carries into the courtroom attaches itself to the person seated next to them, the defense attorney -- 'the Velcro effect.'
Lowering the Bar & Burden Shifting
The jurors' responses also reflect that they were left wanting more - more evidence, more witnesses. This is not a new phenomenon.
With this is mind, prosecutors will often make a preemptive strike against jurors' perceived unreasonable expectations on the prosecution's burden of proof by front-end loading a 'CSI effect' argument into the jury selection process. To this end, prosecutors will tell jurors that 'real life' is not like TV and CSI-type shows and, therefore, they should not hold the prosecution to that same expectation. I call this 'lowering the bar' or the prosecution's failure to embrace the burden and responsibility that they have placed on themselves for accusing a person of a crime.
Similarly, a criminal defense attorney should be aware of these expectations by jurors to guard against 'burden shifting.' Where jurors expect the production of evidence from both sides and carry negative opinions of defendants into the courtroom with them, these predispositions must be addressed out the gate during the jury selection process and not be left undisturbed because they run contrary to the defense's burden of proof and production in a criminal case.
There is no burden on the defense. The burden never shifts from the prosecution's table to the defense table. A defendant carries the right to remain silent with them into the courtroom and through trial. A person accused of a crime cannot be compelled to testify or present evidence or witnesses and no negative inference can be made against them as a result of a decision to exercise that right.
Reversing the Stigma by Re-Emphasizing OUR Rights
The right to the presumption of innocence, the right to remain silent, and the right to have the prosecution prove its case beyond a reasonable doubt are not rights just afforded to criminal defendants, they are all of OUR rights.
It is these shared interests or rights that must become the focus of the jury selection process.
On its face, jury selection is an opportunity to ensure that a fair and impartial jury is impaneled to hear the case. But the jury selection process is much more than that. It is an opportunity to re-emphasize the core values of the process that each juror will take an oath to uphold and then get them to embrace that oath.
Some attorneys will attempt to do this by running the risks of alienating prospective jurors. Some attorneys will go back through the questionnaires, find people who said they are more likely to believe the police or would hold it against a defendant if they choose not to testify, and individually interrogate them on these or similar points. Rather than re-emphasizing our shared rights, this approach reinforces underlying stigmas that already exists.
The reality is that when we walk into the courtroom, we all carry certain predispositions, values, attitudes, and opinions in with us - defense attorneys, judges, and prosecutors included. The question isn't whether we have these predispositions but, instead, whether we can set them aside and check them with our coat at the door when we enter the courtroom and step into the jury box.
By emphasizing these rights in the context of our shared oath as U.S. citizens, we can reverse and reduce the stigma, re-humanize the people we help, re-educate the jurors on the core values of the process, and build a rapport with them.
A jury trial is one-part facts, one-part law, and one-part popularity contest. By controlling the context of each, an experienced Pennsylvania Criminal Defense Lawyer can maximize your opportunity for a 'not guilty' verdict.
An Experienced Professional Helping People in Central PA
If you have been accused of a crime or DUI, contact an experienced professional today.