# 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:** 2
**Author:** ![74westy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/74westy/32/3950_2.png) [@74westy](https://boards.straightdope.com/u/74westy)\ **Post date:** [January 1, 2013, 8:01pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/21 "2013-01-01T20:01:42Z")
> [@Bricker](#): > > say, the natural log of e How many decimal places? ---
**Author:** ![pseudotriton\_ruber\_ruber](https://avatars.discourse-cdn.com/v4/letter/p/a9a28c/32.png) [@pseudotriton\_ruber\_ruber](https://boards.straightdope.com/u/pseudotriton_ruber_ruber)\ **Post date:** [January 1, 2013, 9:38pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/22 "2013-01-01T21:38:54Z")
I once served on a jury (grand theft) where as I recall, the threshold of “grand theft” was “$2000” or some similar figure, and the prosecution never even tried to demonstrate that the goods the accused thief was alleged to have taken added up to that amount. It might have–he was accused of taking some jewelry, some artwork maybe, whatever–but when we got back to the jury room, I said I thought we had to acquit since I would have needed some evidence showing that the total value exceeded the standard of grand theft, and I got a lot of “Oh, come on, jewelry, artwork–are you kidding? That stuff costs a lot more than $2000,” and we argued for hours. I remember being the sole holdout against convicting (I was the foreman) and those people were PISSED at me. ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [January 1, 2013, 9:57pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/23 "2013-01-01T21:57:51Z")
FWIW, **pseudotrin** , I think you did a good thing. Anyway, doesn’t _everybody_ have “expert knowledge” of some things? I mean **pseudotrin** might have just decked out his wife like a queen, and was amazed that he still had change from $2G. Or, conversely, if **74westy** , a well-known local drunk, was in the dock, and the key to letting him go was his knowing the natural log of _e_– which (since he likes that sort of thing)–he does, my expert knowledge of drunks in general would be to call BS. I know _vois-dire_ is supposed to weed out smart-Alec’s who can think too hard about prosecution and defense evidence (peers and all), but neither the pros. nor def. know what-all might turn up. How are the jurors to self monitor? At its simplest: I know a lot about _x_, if _x_ comes up, I out myself? It would seem I’d be good to have around in that jury. ETA: **pseudotriton** in all cases above. ---
**Author:** ![WarmNPrickly](https://avatars.discourse-cdn.com/v4/letter/w/d78d45/32.png) [@WarmNPrickly](https://boards.straightdope.com/u/WarmNPrickly)\ **Post date:** [January 1, 2013, 11:21pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/24 "2013-01-01T23:21:12Z")
> [@74westy](#): > > How many decimal places? I’m somewhat of a savant because I can calculate the natural log of e to a billion decimal places in my head. ---
**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 2, 2013, 12:41am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/25 "2013-01-02T00:41:07Z")
Dangit, **WarmNPrickly** stole my thunder. ---
**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 2, 2013, 2:12am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/26 "2013-01-02T02:12:39Z")
> [@WarmNPrickly](#): > > I’m somewhat of a savant because I can calculate the natural log of e to a billion decimal places in my head. Only a billion? Poor soul! ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 2, 2013, 3:41am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/27 "2013-01-02T03:41:42Z")
> [@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? It’s not a question of expert testimony, but whether it is evidence that has not been introduced in open court, and been tested by the prosecutor and the defence, through cross-examination and possibly calling evidence to rebut. I agree with **Bricker** that pi might be one of those things that is considered to be within common knowledge, and therefore the jurors can rely on their own knowledge. However, if it is something that is not general knowledge, then it would be inappropriate for the juror to rely on his / her personal knowledge. The accused has a right to have his guilt or innocence determined solely by evidence led in open court, and subject to being tested, by cross-examination or by calling other evidence to rebut. A case is not to be decided by secret information, known only to one juror, and which has not been introduced in open court. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 2, 2013, 3:51am UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/28 "2013-01-02T03:51:38Z")
We had a similar discussion a few years ago in this thread: [iPhones and juries](http://boards.straightdope.com/sdmb/showthread.php?t=510751). Here’s an exchange that I had with **Sunspace** : > [@Northern Piper](#): > > > [@Sunspace](#): > > > > So the jurors’ personal knowledge from outside the courtroom is irrelevant and disallowed? > > Yes, because it’s not evidence that has been admitted into court, by a sworn witness, and has not been tested by cross-examination. All of those requirements are fundamental protections for the accused who is on trial. > > [Quote=Sunspace] > Say the accused was saying. “I didn’t do it because at the time I was on the other side of the country in Z-ville, fixing a flat tire at the intersection of Y Street and X Road.” You were the only juror who’d grown up in Z-ville, and you were there visiting Mom around the time of the alleged crime, and you know that Y Street and X Road don’t cross? You wouldn’t be allowed to mention that? The jury could pose a question to the judge, and perhaps ask if a map had been entered in evidence on this point. But how do the rest of the jurors know if the one juror’s recollection is right? Maybe it’s one of those street lay-outs that has variations. Maybe the accused was talking about Y Street and X Road, which do intersect, but the juror is thinking of Y Street South and X Road, which do not intersect. Or maybe the accused meant to say Y Street South, but in the stress of the moment, mispoke, and no-one noticed it because it didn’t seem important. Before the jury can decide based on the juror’s recollection, his information has to be led in evidence in open court, with the accused and the Crown both having the right to challenge it by cross-examination, or by leading evidence to support their position. That juror is not on oath. He’s not been tested by cross-examination. His recollection of the street layout is not public. How is it fair to the accused to have his guilt or innocence decided by unsworn, untested, secret evidence? If you were on trial, would you want your case decided by secret evidence that you didn’t even know about, let alone have a chance to rebut? [/QUOTE] ---
**Author:** ![pseudotriton\_ruber\_ruber](https://avatars.discourse-cdn.com/v4/letter/p/a9a28c/32.png) [@pseudotriton\_ruber\_ruber](https://boards.straightdope.com/u/pseudotriton_ruber_ruber)\ **Post date:** [January 2, 2013, 1:47pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/29 "2013-01-02T13:47:25Z")
> [@Northern\_Piper](#): > > We had a similar discussion OK, so let me ask you, then: would my notion that the prosecution hadn’t even begun to demonstrate that the allegedly stolen goods amounted to more than $2000 meant that we should acquit? To me, it was a no-brainer. Without some sort of notional evidence introduced to establish the approximate value of the stolen goods, there was no grand larceny. Eleven other jurors felt quite strongly otherwise. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 2, 2013, 2:46pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/30 "2013-01-02T14:46:32Z")
> [@pseudotriton\_ruber\_ruber](#): > > OK, so let me ask you, then: would my notion that the prosecution hadn’t even begun to demonstrate that the allegedly stolen goods amounted to more than $2000 meant that we should acquit? To me, it was a no-brainer. Without some sort of notional evidence introduced to establish the approximate value of the stolen goods, there was no grand larceny. Eleven other jurors felt quite strongly otherwise. Well, you always _may_ vote to acquit if the evidence was not proved to your satisfaction. That’s precisely your role as a juror. I think you’re basically asking, though, something more like whether it was reasonable for you to do so in that case. Jewelry and artwork is so ambiguous in value that I would say yes; it’s not something that you would commonly be expected to know. By contrast, if the stolen goods had instead been a car, then I think there’s a better argument that the jury could conclude that its value exceeded $2000 without the prosecution having put on specific evidence of its value. ---
**Author:** ![pseudotriton\_ruber\_ruber](https://avatars.discourse-cdn.com/v4/letter/p/a9a28c/32.png) [@pseudotriton\_ruber\_ruber](https://boards.straightdope.com/u/pseudotriton_ruber_ruber)\ **Post date:** [January 2, 2013, 2:56pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/31 "2013-01-02T14:56:33Z")
I mean, I guess, that I was specifically applying my own personal knowledge of what “jewelry and artwork” is worth: sometimes more than $2000, sometimes less. My 11 adversaries were arguing “Duh–most of the time jewelry and artwork are worth MUCH more. If the defense didn’t even argue that the value hadn’t been demonstrated, then you should take it for granted that it exceeded $2000,” and I was saying, “The prosecution, to my mind, must at least assert it was worth $2000,” and they argued back “By filing a grand larceny charge, they WERE asserting that.” Where this relates to the OP is that I was using my own personal knowledge that artwork is sometimes without resale value, and that some jewelry is cheap. Nowhere during the trial was this information put forth, and I found that odd. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 2, 2013, 3:21pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/32 "2013-01-02T15:21:06Z")
**pseudotriton ruber ruber** , I would say you were correct. If the charge includes a dollar value, the prosecution has to prove that the goods are over that dollar value. One option, however, may have been to send a note to the judge asking if there was a lesser included offence of petty theft, that did not have a dollar value. If you were satisfied that the accused did steal the property, but were not satisfied beyond a reasonable doubt about the value of the property, that might be sufficient to convict on petty theft, if that offence exists in your jurisdiction. ---
**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 2, 2013, 3:22pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/33 "2013-01-02T15:22:20Z")
I would consider “some jewelry and artwork is cheap” to be well within the range of common knowledge. And had I been on that jury with you, and you pointed that out, I would have agreed with you. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 2, 2013, 3:43pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/34 "2013-01-02T15:43:51Z")
First, juries can do whatever they want. (Cue the “jury nullification” thread). What they _should_ do is the best description of this thread. I think Piper’s quote best explains it. Juror may be an expert, but without the evidence being entered in open court, who gets to vet it’s validity? Could be an honest mistake by the juror’s recollection. OTOH, your _evaluation_ of the evidence is strictly your business. If you think “the only reason to run out for a beer is for an alibi” that is your evaluation of the character and truthfulness of the defendant. You don’t have to believe someone just because they said it under oath. I might even bring my prejudices to the jury room. If I happen to think “all police are lying bastards, so I will automatically assume their testimony is unreliable” may border on unacceptable; but saying “I will give less credence to police than to honest citizens” is simply you doing your job as a juror… just not well. (Sorry police, just an example). Jailhouse informers, for example - the “guy in the next cell who heard the confession” is incredibly motivated to be a lying bastard, even if it is a police plant. If you read some crime news and draw this conclusion, it is part of the life experience you bring to your jury job. If you refuse to believe him without corroborating reliable, real evidence, so be it. That’s your task. If you assume that “if they had to fabricate a jailhouse confession, therefore they must have no case” that is your evaluation of the character of the prosecution witnesses. If one juror brings these whacko beliefs to the room, then you could get a hung jury. If he persuades the rest - which suggests his arguments are somewhat reasonable - you get an acquittal. If he is irrationally obnoxious and in denial or crazy “the stars are not aligned, he could not have done it” at some point the other jurors complain to the judge and he is removed. Has happened. However, see the neverending threads on jury nullification - removing a juror is a risk if the sole reason to is “he won’t convict”. the person has to be over a certain line that a real lawyer can probably better explain. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [January 2, 2013, 4:07pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/35 "2013-01-02T16:07:20Z")
> [@pseudotriton\_ruber\_ruber](#): > > they argued back “By filing a grand larceny charge, they WERE asserting that.” By that logic, everything that is in the charge should be taken as proven :dubious: . . . i’m glad you were on the jury, **prr**. ---
**Author:** ![Raza](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/raza/32/213_2.png) [@Raza](https://boards.straightdope.com/u/Raza)\ **Post date:** [January 2, 2013, 6:15pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/36 "2013-01-02T18:15:23Z")
IANAL (but former LE), but very surprised in **pseudotriton ruber ruber’s** case that the finding of value wasn’t part of the jury instructions for grand larceny. I would have assumed that all elements of an offense would be part of the instructions, and surely the value is part of that state’s statute for this offense. ---
**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 2, 2013, 6:41pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/37 "2013-01-02T18:41:34Z")
So, **prr** , what was the final result of the trial? Hung jury? Or did one side finally give in? ---
**Author:** ![babygoat666](https://avatars.discourse-cdn.com/v4/letter/b/2acd7d/32.png) [@babygoat666](https://boards.straightdope.com/u/babygoat666)\ **Post date:** [January 2, 2013, 7:40pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/38 "2013-01-02T19:40:20Z")
> [@Raza](#): > > IANAL (but former LE), but very surprised in **pseudotriton ruber ruber’s** case that the finding of value wasn’t part of the jury instructions for grand larceny. I would have assumed that all elements of an offense would be part of the instructions, and surely the value is part of that state’s statute for this offense. Yeah, and that sounds like totally bush league prosecution. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 3, 2013, 6:12pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/39 "2013-01-03T18:12:09Z")
I remember watching pieces of (sorry) the Lorena Bobbit trial and seeing how amateurish the whole process was - some bush league prosecutor and defense lawyers were suddenly on national TV. (Classic question… “which way is up?” after she said “then he turned me up…”) We expect based on TV drama that these guys are deft, clever, and eloquent, but they’re the same tongue-tied schmucks as the rest of us with a better technical training. A lawyer I was talking to once explained about small-town prosecution and judges… “I can challenge the judge and if he does not follow procedure, I appeal. I only see him once a year. The locals, they appear in front of him every day. If they challenge or appeal anything, he takes it out on their next fifty clients with harsher-than-normal sentences.” Without adult supervision, the practice of law can turn into a playground tantrum. if the case was as described, I’m also surprised the prosecutor was lax enough to make the error and the defense lax enough to pass it over… unless it’s a public defender of minimal capability. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [January 3, 2013, 6:21pm UTC](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725/40 "2013-01-03T18:21:24Z")
> [@md2000](#): > > A lawyer I was talking to once explained about small-town prosecution and judges… “I can challenge the judge and if he does not follow procedure, I appeal. I only see him once a year. The locals, they appear in front of him every day. If they challenge or appeal anything, he takes it out on their next fifty clients with harsher-than-normal sentences.” Without adult supervision, the practice of law can turn into a playground tantrum. if the case was as described, I’m also surprised the prosecutor was lax enough to make the error and the defense lax enough to pass it over… unless it’s a public defender of minimal capability. Why do you accuse the defense of being lax? If the value of property is an element of the crime, but the prosecution doesn’t put on evidence of the value, shouldn’t the defense use that lapse at the best time? What if the defense attorney argues in closing about the absent evidence, and the prosecution responds by getting permission from the judge to reopen the evidence? [Previous page](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725.md?page=1) [Next page](https://boards.straightdope.com/t/during-deliberation-juror-introduces-argument-not-brought-up-at-trial-grounds-for-appeal/645725.md?page=3)