The Whitness

When I started this little project of retelling my courtroom experience, I told some of my lawyer friends to check it out. Specifically I told them that the questions I write are directed primarily at them and to please comment on them if they were so inclined. Maybe using the “comments” feature was too much to ask, but I did get a very thorough and thoughtful response from my an old college roommate.

Without further ado, I give you the enlightened commentary of John Gates, esq – this website’s new Chief Legal Correspondent.

As far as my jury trial experience is concerned, I worked in the prosecutor’s office during my third year of law school and second-chaired a murder trial and an armed robbery trial, and I’ve tried four personal injury cases for the defense since 2000. If any of the other guys in your e-mail are prosecutors or ADAs, I’m sure that they have much more experience than me and can better answer your questions.

Jurors: A juror may be excused for a valid reason (sick, non-English speaking, non-frivilous prior engagements, etc.), a juror may be struck by a party or the judge “for cause” because he has preconceived notions or opinions that he will not be able to set aside and view the evidence fairly (there is no limit for these types of “strikes,” and you were likely the beneficiary of many such strikes), or a party may use a “peremptory challenge” (usually 3, but depends on jurisdiction) for any reason (unless racial, etc.). A juror in my first civil trial asked to be excused because he had roids and couldn’t sit down for three days. I told the judge that we should mess with him and tell the juror that we would need to confirm his claim during a break. The judge didn’t think it was as funny as I did.

They asked about CSI, Law & Order, et al. because people who watch those shows (me included) expect DNA, fingerprints, and other bodily fluids to be found by hot blond cops strolling through crime scenes, processed by attractive men with stubble, and witty detectives who extract confessions, all within 43 minutes (plus commercials). These jurors’ standards are simply unrealistic and unattainable. During opening statements of my armed-robbery trial, my last line was, “This isn’t Law & Order, and this isn’t Perry Mason. This is a straight-forward case: he (pointing at defendant) robbed the McDonald’s.” I would also worry about the people wrapped up with the Scott Peterson-type stories.

Jurors in Kansas and Missouri are not allowed to keep their notes after trial, and I am surprised you were allowed to keep them.

The oath: I think that we dropped “so help you God” here. Witnesses asserting the 5th can be challenged if the question has absolutely no risk of incriminating the person, but it is a pretty liberal standard.

Breaks: They are annoying for lawyers, so I’m sure that they are infinitely more annoying to jurors. Criminal trials rarely go smoothly because witnesses don’t want to miss work, fear retaliation, need to be transported from jail to testify, etc.

Ironically, I report for jury duty on December 10, but I don’t think that I will get selected. Actually, I had a trial scheduled on the same day that I was supposed to report for jury duty, but the trial was continued until March. Although I would consider myself unbiased (and not worthy of being struck “for cause”), I think that a criminal defendant would use a “peremptory challenge” because he or she would think that I would favor the prosecution. I usually represent defendants in civil cases (personal injury, breach of contract, construction defects, nursing homes), so a plaintiff in a personal injury case would probably not want me on the jury.

Many thanks to John for his wisdom and insight. I look forward to his continued input as other legal quandaries arise. If any of you other lawyers out there feel like chiming in, feel free.

Next Post: We’ll hear about the witnesses that the defense team calls.

This entry was posted on Thursday, November 29th, 2007 at 9:30 am and is filed under jury duty. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.