The Rules to a Very Serious Game

 

I love games.  From ancient classics like chess and Go to more modern favorites like the Settlers of Catan I enjoy the challenge of head-to-head strategic competition.  As a criminal defense attorney, I am often called to engage in another kind of strategic competition: trial.  But where board games can at best win you some bragging rights, the stakes of a criminal trial are much higher: a client’s life and liberty.

While trials are not games, what a trial before a judge or jury shares with a game is a set of rules.  In the next series of blogs, I will be highlighting and discussing some of those key rules, such as the various burdens of proof, the need for juror unanimity in their verdict, and the rules of evidence.

The Non-Religious Juror: A Growing Population

 

In this interesting article by the folks at Keene Trial Consulting, they discuss findings by the Pew Research Centers on changing American demographics, and how this may affect juror pools.  What I found particularly intriguing was the finding that the number of Americans who identified themselves as “religiously unaffiliated” grew sharply from 35.6 million in 2007 to 55.8 million in 2013.  This number includes those who formally declare themselves to be atheists as well as those who merely do not identify with a particular establish religion or are “religiously unsure”.

As Americans change, so does American jury pools.  As trial attorneys it pays to be mindful of this fact.  Persuasion is all about matching the message to the audience.  If a trial attorney goes down a path of persuasion that doesn’t take into account the mindset of the jurors, he or she risks starting off at a significant disadvantage. Religious-based defense pleas for mercy or compassion on the one side, or for prosecutorial calls for order and retribution on the other, may increasingly come across as tone-deaf to an audience of jurors who are not as deeply steeped in the religious traditions of previous generations.

 

Helping Tomorrow’s Attorneys Today

Recently, I had the pleasure and privilege to help out a team of University of Texas School of Law students prepare for an upcoming competition hosted by Stetson University in Florida.  I was asked to judge a practice, or “spar” round, whereby the students could practice their advocacy skills in completion-like conditions, with an opposing team and a judge making rulings and asking questions from the bench.  This particular completion is focused on a mock pretrial hearing involving issues of evidence suppression under the 4th Amendment, the admissibility of an expert witness’s testimony, and a defendant’s motion to sever his trial from that of his co-defendants in a mock federal conspiracy charge.

These trial advocacy programs are always in need of experienced attorneys who can act as coaches, mentors, and judges for their various teams.  Each time I lend a hand (in a large or small way) to a trial advocacy event, I always find it very energizing being around these driven, upcoming professionals.  We lawyers and lawyers-to-be tend to be of a competitive nature.  And the law students who actively seek to pit themselves against their peers in legal advocacy contests are can be the most competitive of the bunch.  I never fail to be impressed by the diligence and hard work these students bring to the fight.  If you are a lawyer, don’t be shy about lending a hand; it’ll do you good.

Not to sound like a dinosaur, but when I was in law school, most trial advocacy competitions focused on the old standby classics of Moot Court (appellate arguments) and Mock Trial (jury trials).  While these were fun and instructive, I would have welcomed the more expansive opportunities that today’s law students can take advantage of when it comes to competition.  Today, there are competitions embracing many facets of the legal practice, such as the aforementioned pretrial hearings, meditations, negotiations, voir dire, brief writing, and more.

If only there was a competition entitled “Fee Setting and Fee Collection”.  Now that would be something!

Real Americans Serve on Juries

            We Americans are proud of our rights – and (forgive the pun) rightfully so!  The unique balance between governmental power and individual freedoms outlined in our Constitution and Bill of Rights has survived many challenges, and adapted to significant changes in culture over the many years of this Republic.

            A thought struck me the other day.  Many of our so-called individual rights, are just that: individual.  That is, I don’t need anyone else to do anything for me to exercise my rights.  If I wish to speak my mind under the auspices of the First Amendment, I can, regardless of if anyone listens to me or agrees.  If I want to own a firearm as authorized by the Second Amendment, I can as well.

Enshrined in Bill of Rights is another precious individual right: the right to a trial by jury which is guaranteed by the Sixth Amendment. But let’s think a bit deeper about just what that right demands.  If I, as someone accused of a crime, choose to exercise my right to a jury trial, that presupposes that there is a jury to be had.  Unlike speaking your mind freely, or holding onto a family heirloom firearm, my choice to exercise this particular right depends on YOU showing up for the jury summons.  Without YOU, my right is nullified.

A county or district clerk may send out four or five hundred jury summons just so they can get a jury pool of one-hundred and fifty actual warm bodies to show up on a Monday morning.  That’s enough….but it’s not GOOD ENOUGH.  Yes, just like with funding drives for public television, there are usually “enough” people who pitch in to keep things muddling along at a basic level, but thats it.  We can and should do better.

Now I know that a “jury of my peers” doesn’t mean an exact duplication of folks my same age, gender, ethnicity, and station in life.  But when only a fraction of the citizenry summoned bother to appear, what does that really say about how much we value the rights we (supposedly) hold so precious?  A defendant should have a true cross-section of the community to form his or her jury panel from.  And the State should as well.  If the citizenry is going to be the voice of the county or state on issues of crime and punishment, shouldn’t the jury panel ideally be a true representative sample, instead of simply a group made up of those whose sense of civic duty outweighs their sense of “But I’m too busy”?

Its cliché these days to say that one honors the military veterans “who fought and died for our freedoms”.  But when one of our fellow Americans chooses to exercise one of those freedoms, their freedom to choose a jury trial, we more often than not will not respond to that jury summons, which goes right to the trash.  Talk is cheap.  Action speaks louder than words.  When the jury call comes, answer it.  It’s the American thing to do.

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