Do Lawyers Like uninformed Juries?

Factual Questions
1

Every two or three years I get a notice telling me I have to report for jury duty (I think I’m on the Summit County Jury Suckers List). Usually I get off of actually serving on a jury because I read the newspaper too much.

A couple of times I have had to sit on a jury (both civil cases) and in one in particular, the amount of information they DON’T let the jury have during deliberations was infuriating.

There was an accident, a truck hit a car and pushed it until the cars tires blew and the sparks got the truck drivers attention that something was wrong–seriously. The truck driver and company admitted fault but said the woman was faking the seriousness of her injuries to get more money.

The woman had two doctors testify that she had a specific condition (traumatic spinal fibromiositis, or something to that effect) and would never work again. The truck companies lawyer had two doctors that NEVER COUNTERED THAT TESTIMONY, rather they gave her psychological tests (Minnesota Multisomething something something, or something like that).

When we got into the jury room, two people insisted (incorrectly has turns out) that one of the truck company’s doctors had countered the diagnosis. The jury was given the results of the psychological tests, the medical records (this was how we eventually figured out he never counter it, or even examined her for it), bills, photos, and other assorted junk, but we were not allowed to have the transcript of the testimony, we had to rely on our memory (and we were informed of this before we started, it’s deliberate). So instead of looking through the doctor’s testimony, were it would have been near the beginning because one they started talking about the psychological tests, they never got off the subject. In theory, we could have gotten the testimony read back to us, but when you’re looking to make sure something is not there, the court would probably want us to hear all four or so hours of it. (Side note-there is nothing in the world as boring as three and a half days of dueling doctors). So we hit the medical records and eventually found (or didn’t find, I should say), enough to convince enough people to side with the plaintiff. And after the trial, we found out that we were correct, they never countered it.

Why don’t they want you to have the transcripts? One law school friend of mine says it because the lawyers want you to focus on what they say in the closing arguments, not on the facts. Is this true? I mean, it looks that way to me.

Jimpy
A snappy message should appear here

2

Let’s just leave the real world for a second and go into The Perfect World[sup]®[/sup]

In The Perfect World[sup]®[/sup] you would not expect the professionals to lie. If the evidence (the medical records) says that they did not contradict the condition then you assume that they did not lie and contradict the condition. In The Perfect World[sup]®[/sup] you go by the evidence.

If you start going back to the transcripts you may make a judgement based on the person, not on the evidence. You might think “Oh, that person might have been embellishing a little there,” or “That character sounds a bit shifty.”

The closing argument are about as important as the opening arguments. They tell you what to look for, but they don’t tell you what to decide. You cannot decide on the words of others, it has to be on evidence.

3

The testimony of witnesses IS evidence. The supporting exhibits are NOT more important than the testimony. As the finder of fact, the jury is required to decide on the reliability of witnesses. The reason for the exclusion of transcripts (and note-taking) from the jury is to prevent the jury from emphasizing the transcripts over their “collective recollection” of the totality of the evidence. The early framers of the law (as well as their successors) apparently felt that a vague sense of how everything fits together is better than a precise recollection of half of the evidence.

Quite frankly, I think this is an incredible mistake. I thnk transcripts, tapes, and physical evidence should be surrendered to the jury whenever possible, or they can’t be expected to do the job.

4

On a practical note, it’s also because the transcripts don’t actually exist yet. When the trial is over, the court reporter has minutes, but usually doesn’t have a full written transcript. Making a full transcription from the minutes is a time consuming process that the court reporter has to be paid to do, and is generally done for use in the appeals process. In most trials, if there is no appeal, no transcript is ever made. In a few cases, like capital cases or a civil case where the stakes are unusually high, the court or the parties will pay to have an ongoing daily transcript made for use in the trial itself, but this is very expensive and very rare.

5

I just gave testimony a few weeks ago and they are now using modern versions of those little court-reporter notes machines with the 10 or 12 keys (whatever they’re called): they’re electronic and connect via cable to a computer that has some kind of software that translates the shorthandish (which is incidentally still physically rolling off the tape-thingie in the old-fashioned way) into regular words in a word processing document.

6

Still, the word document you saw being made wasn’t a transcript; it was the court reporter’s notes, which may contain many errors. An official transcript comes in a certain format, is gone over repeatedly to correct any errrors, and is certified as complete and accurate by the court reporter. The court reporter will use those notes if an official transcript is prepared.

7

The decision on whether to allow the prepare and allow the jury to have, transcripts of the testimony of a witness is seriously frowned upon by the courts. The reason is not, as your friend stated, to place more weight on the lawyer’s arguments, but rather because providing the transcripts would place a much greater emphasis on one piece of evidence to the detriment of all the other evidence presented. By allowing a transcript into deliberations, the court would be providing the jury the tools to focus only on the testimony of one witness, which, in reality, leads the jury to unfairly consider only one facet of the case. A vast majority of jurisdictions frown on providing the jurors with transcripts of a witness’ testimony.

They will, however, allow the testimony to be read back to the jurors. If the jury has a sincere question about what a witness’ stated, they can have the testimony read back to them. But the court will be very reluctant to provide the jury with a written transcript of that testimony.

There are, as always, exceptions. In long-running, complex prosecutions, the judge will be much more open to allowing transcripts back to the jury. In addition, if a witness’ testimony was difficult for a juror to understand (poor hearing or heavy accents) the court may provide the jury with a transcript. These are few and far between, however.

It’s not that the judicial system wants to hide information from the jury. It’s just that they don’t want the jury to focus solely on a piece of paper, and instead look at all the evidence equally.

8

In Maricopa county, at least, the jurors are allowed to take their own notes. You’re given several sheets of paper when seated and you can jot down to your heart’s content during testimony. When you leave for the day, you give them to the bailiff, who hands them back the next morning. You can take them into the jury room when deliberations start, then hand them to the bailiff one last time for destruction, when you leave for good.

Also, after the direct testimony and cross examination, jurors can ask questions of the witness themselves. The questions are written down and handed to the judge who decides whether to read the question to the witness or not. The judge we had would look at the juror and give his head a little shake with no explanation as to why. I had only a couple questions during the whole trial and none of them were refused.

DD