# During deliberation, juror introduces argument not brought up at trial. Grounds for appeal? **URL:** \ **Category:** Factual Questions\ **Created:** [December 31, 2012, 11:36pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725 "2012-12-31T23:36:36Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [December 31, 2012, 11:36pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/1 "2012-12-31T23:36:36Z")
Inspired by this thread: [DUI question: would this fool the judge/police?](http://boards.straightdope.com/sdmb/showthread.php?p=15849084&posted=1#post15849084). First I’ll quote the OP: > [@DUI question: would this fool the judge/police?](https://boards.straightdope.com/t/dui-question-would-this-fool-the-judge-police/645273/1): > > Suppose I am driving my car under the influence and lose control and kill somebody. > > As I am waiting for the police to arrive, I go to the corner store, grab a six-pack and start downing the beers one after the other, while at the same time I make sure there are several witnesses who see me. > > When the police eventually comes and tests me, inevitably their breathalyzer will go off the scale. > > Can I then claim that I was sober when the accident occured and the breathalyzer indication is due to the six-pack I drank afterwards? Here was my response: > [@DUI question: would this fool the judge/police?](https://boards.straightdope.com/t/dui-question-would-this-fool-the-judge-police/645273/35): > > If I were on the jury in a dui/vehicular manslaughter case, the defendant’s claim that he had downed a six-pack immediately after the accident would make me _more_ likely to convict him, not less–_even if he had multiple witnesses to his having drunk those beers_. The fact that his immediate reaction to [del]such an accident[/del] such a crash was to drink would make me think he had already been imbibing too much and probably did so habitually. And now the setup for my question. Suppose Cliff Clavin is on trial for killing Carla ManyLastNames in a drunk driving accident, and he or his lawyer uses the I–was-so-rattled-by-the-accident-I-ran-to-a-convenience-store-for-another-beer defense. Suppose further that the prosecution addresses this argument only by trying to cast doubt on Clavin having actually gone to the convenience store for a six-pack before being arrested. Finally suppose that I, Skald, am the jury foreman, and during deliberations forcefully and persuasively make the argument that it doesn’t matter whether Clavin is telling the truth about the convenience store; if he reacted to the accident as he claims, he was probably drunk beforehand as well. This is something the prosecution did NOT argue during trial. Is my doing so permissible? If Clavin is convicted and the other jurors attribute their “guilty” votes to my argument, and defense lawyer (John Cage, say) finds out, can that be used as grounds for overturning the verdict? ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [December 31, 2012, 11:45pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/2 "2012-12-31T23:45:56Z")
IANAL, but I don’t think so. The jury is required to consider only the evidence presented in court, and only the law as described in the judge’s instructions, but the jury is the finder of fact, especially with respect to the reliability of testimony, and their reasoning as to what really happened is given great deference as long as they do not violate the judge’s instructions. ---
**Author:** ![racer72](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/racer72/32/3075_2.png) [@racer72](https://boards.straightdope.com/u/racer72)\ **Post date:** [December 31, 2012, 11:55pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/3 "2012-12-31T23:55:47Z")
The two times I have been on a jury, we could only use the testimony and evidence given in court to make our decision, period. The last time I saw obvious errors made by the prosecution that hurt their case and asked the bailiff if I could tell the other jurors. I was told no and I could get in trouble if I did. But after the case I could tell the prosecution what the errors were. It really didn’t matter in the end, I was selected as an alternate and was dismissed just prior to the case going to the jury. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 1, 2013, 12:00am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/4 "2013-01-01T00:00:54Z")
Except the situation posited by **Skald** isn’t a matter of evidence, but of interpretation of evidence. ---
**Author:** ![SpoilerVirgin](https://avatars.discourse-cdn.com/v4/letter/s/4491bb/32.png) [@SpoilerVirgin](https://boards.straightdope.com/u/SpoilerVirgin)\ **Post date:** [January 1, 2013, 12:19am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/5 "2013-01-01T00:19:00Z")
When I served on a jury in a murder trial, the defense chose not to present a case (in closing, the defense attorney merely argued that the prosecution had failed to prove _its_ case). In order to be as thorough as possible in our deliberations, we considered alternative theories of the crime, and whether there were other reasonable scenarios for how it might have occurred, none of which were presented by the defense. We based our discussions only on facts that were presented during the trial, but we certainly considered alternative interpretations of those facts. Ultimately, we voted unanimously to convict on the first ballot. I don’t see how our deliberations would have been grounds for appeal; just as in the OP’s scenario, we were looking at evidence presented and interpreting it, not coming up with new evidence on our own. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [January 1, 2013, 12:26am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/6 "2013-01-01T00:26:39Z")
> [@SpoilerVirgin](#): > > When I served on a jury in a murder trial, the defense chose not to present a case (in closing, the defense attorney merely argued that the prosecution had failed to prove _its_ case). In order to be as thorough as possible in our deliberations, we considered alternative theories of the crime, and whether there were other reasonable scenarios for how it might have occurred, none of which were presented by the defense. We based our discussions only on facts that were presented during the trial, but we certainly considered alternative interpretations of those facts. Ultimately, we voted unanimously to convict on the first ballot. I don’t see how our deliberations would have been grounds for appeal; just as in the OP’s scenario, we were looking at evidence presented and interpreting it, not coming up with new evidence on our own. Are you an American? If you are it, then I don’t see how what you describe could have mattered even if y’all had voted to acquit, as the prosecution may not appeal a verdict. Double jeopardy and all that. ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [January 1, 2013, 12:29am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/7 "2013-01-01T00:29:26Z")
When I was on a jury we were told that we were allowed to evaluate testimony based on our evaluation of the trustworthiness of the witnesses. We had one guy, a friend of the defendant, who testified one thing - and then we heard an ADA testify that the guy had told him something entirely different, I’m having a hard time seeing where Skald the foreman would get that Cliff was drunk before, but he certainly wouldn’t have to believe Cliff saying he wasn’t. ---
**Author:** ![Skald\_the\_Rhymer](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Skald\_the\_Rhymer](https://boards.straightdope.com/u/Skald_the_Rhymer)\ **Post date:** [January 1, 2013, 12:32am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/8 "2013-01-01T00:32:51Z")
> [@Voyager](#): > > When I was on a jury we were told that we were allowed to evaluate testimony based on our evaluation of the trustworthiness of the witnesses. We had one guy, a friend of the defendant, who testified one thing - and then we heard an ADA testify that the guy had told him something entirely different, > I’m having a hard time seeing where Skald the foreman would get that Cliff was drunk before, but he certainly wouldn’t have to believe Cliff saying he wasn’t. I probably didn’t explain myself well. What I meant was that the fact that Cliff is using this as a defense would impeach him in my eyes. It would be as if a man were on trial for murdering his spouse and–while testifying in his own defense that he had been elsewhere on the night in question–asserted that as a man he had a right to physically abuse women, but he simply hadn’t been the one to do so this time. ---
**Author:** ![SpoilerVirgin](https://avatars.discourse-cdn.com/v4/letter/s/4491bb/32.png) [@SpoilerVirgin](https://boards.straightdope.com/u/SpoilerVirgin)\ **Post date:** [January 1, 2013, 1:32am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/9 "2013-01-01T01:32:03Z")
> [@Skald\_the\_Rhymer](#): > > Are you an American? If you are it, then I don’t see how what you describe could have mattered even if y’all had voted to acquit, as the prosecution may not appeal a verdict. Double jeopardy and all that. Yes, I was going to put in a sidenote to the effect that in these particular circumstances, there couldn’t have been an appeal, but I tend to add too much extraneous information to my posts, so I just left it as assumed. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [January 1, 2013, 1:48am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/10 "2013-01-01T01:48:44Z")
Juries can’t make up evidence, and they can’t make up law. But, within limits, how they reason about the evidence is for them. The prosecutor might say “Don’t believe the defendant’s claim of alibi because it is contradicted by witness Jones.” But a jury is quite entitled to not bother about the conflict with Jones and simply disbelieve the alibi because it was implausible, or because the defendant was shifty or evasive in the box. The problem with the examples you gave (drinking after an accident implies guilt, conceding a right to abuse women implies a disposition to commit the offence) is that they may entitle you to disbelieve the defendant, but that does not then automatically imply guilt. Merely disbelieving a defendant does not relieve the prosecution of the obligation of proving its case (assuming we are not dealing with an affirmative defence where the defendant bears the onus). Suppose a murder is committed in Phoenix, and I say I was in Boston at the time visiting relatives, and it is proved that I have no relatives in Boston. The fact that I was not in Boston does not prove I was in Phoenix killing someone. In some circumstances, my lies can add weight to whatever other evidence there is of my guilt, but lies and other so-called “admissions by conduct” (guilty-looking behaviour like flight, evidence tampering, attempting to suborn witnesses or jurors, etc) can’t by themselves carry the day for the prosecution. As has been said, by no torturing of the words “I did not do the act” can you transform them into “I did the act” ---
**Author:** ![Rick](https://avatars.discourse-cdn.com/v4/letter/r/9f8e36/32.png) [@Rick](https://boards.straightdope.com/u/Rick)\ **Post date:** [January 1, 2013, 1:48am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/11 "2013-01-01T01:48:47Z")
> [@Skald\_the\_Rhymer](#): > > Suppose Cliff Clavin is on trial for killing Carla ManyLastNames in a drunk driving accident, and he or his lawyer uses the I–was-so-rattled-by-the-accident-I-ran-to-a-convenience-store-for-\*\*another-\*\*beer defense. Note the bolded word. Cliff or his lawyer buried Cliff right there. Cliff admitted he was under the influence. It’s really nice when the defense does that. Makes the DA’s job easier. ---
**Author:** ![JKellyMap](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jkellymap/32/15880_2.png) [@JKellyMap](https://boards.straightdope.com/u/JKellyMap)\ **Post date:** [January 1, 2013, 3:04pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/12 "2013-01-01T15:04:21Z")
> [@Rick](#): > > Note the bolded word. Cliff or his lawyer buried Cliff right there. Cliff admitted he was under the influence. > It’s really nice when the defense does that. Makes the DA’s job easier. I was going to point that out, too, but then I remembered that one beer does not necessarily a DUI make, at least not in many jurisdictions. ---
**Author:** ![TokyoBayer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tokyobayer/32/13989_2.png) [@TokyoBayer](https://boards.straightdope.com/u/TokyoBayer)\ **Post date:** [January 1, 2013, 3:14pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/13 "2013-01-01T15:14:32Z")
If you can’t do that, then you’ve got to rewrite _12 Angry Men_. ---
**Author:** ![Rick](https://avatars.discourse-cdn.com/v4/letter/r/9f8e36/32.png) [@Rick](https://boards.straightdope.com/u/Rick)\ **Post date:** [January 1, 2013, 3:22pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/14 "2013-01-01T15:22:56Z")
> [@JKellyMap](#): > > I was going to point that out, too, but then I remembered that one beer does not necessarily a DUI make, at least not in many jurisdictions. You can be under the influence at a less than .08 BAC. I know someone who was charged with a DUI at .02. Also the jury is free to believe that Cliff lied or that the one beer was a pony keg. ---
**Author:** ![John\_DiFool](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_difool/32/19543_2.png) [@John\_DiFool](https://boards.straightdope.com/u/John_DiFool)\ **Post date:** [January 1, 2013, 4:35pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/15 "2013-01-01T16:35:56Z")
> [@racer72](#): > > The two times I have been on a jury, we could only use the testimony and evidence given in court to make our decision, period. The last time I saw obvious errors made by the prosecution that hurt their case and asked the bailiff if I could tell the other jurors. I was told no and I could get in trouble if I did. But after the case I could tell the prosecution what the errors were. It really didn’t matter in the end, I was selected as an alternate and was dismissed just prior to the case going to the jury. You’re kidding, right? If the prosecution failed to prove its case, then that seems all too much on topic and worthy of discussion. Seems like mistakes by the prosecution would certainly qualify as “testimony and evidence given in court” (as in, bad evidence, or poorly presented). Am I missing something? ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 1, 2013, 4:47pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/16 "2013-01-01T16:47:48Z")
> [@](#): > > You can be under the influence at a less than .08 BAC. I know someone who was charged with a DUI at .02. Right, the crime is driving while impaired. A BAC of over .08 is considered itself evidence of impairment, but it is not the only possible evidence of impairment. ---
**Author:** ![Johnny\_L.A](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/johnny_l.a/32/1084_2.png) [@Johnny\_L.A](https://boards.straightdope.com/u/Johnny_L.A)\ **Post date:** [January 1, 2013, 5:12pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/17 "2013-01-01T17:12:52Z")
What if the prosecution or defense presents evidence that is entirely incorrect, and you know it but none of the other jury members do? For an absurd example, let’s say the prosecution’s case depends upon the value of pi. If pi, then guilty. Only the prosecutor states that the value of pi is 1.414, and the defendant is guilty because 1.414 proves he’s guilty. The defense never challenges that 1.414 is not the value of pi. The jurors are math-illiterate, and they take the prosecutors proof as fact. Can I, as a jury member, point out that pi ≠ 1.414, and thus the prosecutor has not proved his case? Or would that be considered ‘expert testimony’ that I’m not allowed to bring up? ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [January 1, 2013, 5:13pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/18 "2013-01-01T17:13:57Z")
> [@TokyoBayer](#): > > If you can’t do that, then you’ve got to rewrite _12 Angry Men_. Actually, from what I’ve heard that lone juror seriously broke the law by conducting his own investigation, and presenting his own evidence (the knife). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 1, 2013, 5:57pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/19 "2013-01-01T17:57:38Z")
> [@Johnny\_L.A](#): > > What if the prosecution or defense presents evidence that is entirely incorrect, and you know it but none of the other jury members do? For an absurd example, let’s say the prosecution’s case depends upon the value of pi. If pi, then guilty. Only the prosecutor states that the value of pi is 1.414, and the defendant is guilty because 1.414 proves he’s guilty. The defense never challenges that 1.414 is not the value of pi. The jurors are math-illiterate, and they take the prosecutors proof as fact. Can I, as a jury member, point out that pi ≠ 1.414, and thus the prosecutor has not proved his case? Or would that be considered ‘expert testimony’ that I’m not allowed to bring up? I would argue that the value of pi, at least to three or four significant digits, as well within the common knowledge and experience that all jurors are permitted to bring into the jury room. But if it were a more esoteric fact – say, the natural log of e disproving some key prosecution theory – the proper thing to do would be to send a note to the judge, explaining that you have special knowledge that means you cannot evaluate the evidence solely based on the courtroom experience. The judge will share this with both sides and decide what to do with you. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [January 1, 2013, 6:21pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/20 "2013-01-01T18:21:12Z")
> [@Bricker](#): > > I would argue that the value of pi, at least to three or four significant digits, as well within the common knowledge and experience that all jurors are permitted to bring into the jury room. Really? I’d be surprised if you picked 12 random people off the street and _even one_ of them knew that, much less all 12. [Next page](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725.md?page=2)