By Jill D. Schmid, Ph.D.
Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification.
This issue was one area that DHM Research addressed in their online survey of Oregonians a couple of weeks ago. The results of the survey are discussed in a recent article in the Portland Tribune (http://portlandtribune.com/pt/9-news/387401-276979-losing-faith-in-justice-system-). The researchers asked respondents: Which of the following statements about jury members is closer to what you believe? A. It is the responsibility of jury members to always follow the letter of the law, even when they believe it will result in an unjust outcome. B. It is the responsibility of jury members to achieve the most just outcome, even if it means not following the letter of the law. Or C. Don’t know. 55% of the respondents chose B.
These results should not be surprising (in fact, they might seem a little low) to anyone who has ever watched mock juries deliberate or interviewed real jurors following their jury service. Everyone’s actions are based on their values, beliefs, and opinions; these things shape who we are, what we do, and how we make decisions. To think that jurors somehow set aside personal beliefs about right and wrong when they take the oath at the beginning of a trial is naïve. Jurors want to get the call right, and what is “right” will depend on how jurors view your client – their motivation and character, and what “value” (e.g., justice) is being advanced through fighting and finding for your client.
So, this begs the question, do jurors want to or set out to “nullify” the law or are they simply doing what people do…using their own common sense, values, and beliefs to decide who should “win”?
This question is more apropos for civil trials since the “law” or “instructions” seem a lot vaguer and open to interpretation. After all, we are not talking about “Did the defendant possess the controlled substance X?” for which a “yes” or “no” answer seems fairly straightforward. Instead, it’s “Did Mr. Smith breach his fiduciary duty to Mr. Thompson?” (Juror: “Fiduciary?”) or “Was Dr. Anderson’s breach of the standard of care a proximate cause of the plaintiff’s injuries?” (Juror: “Proximate?”) or “Did plaintiffs prove that Widget1 was unreasonably dangerous because of a failure to adequately warn of the danger?” (Juror: “Unreasonably? Adequately?”).
We tell jurors to consult the “law” – the jury instructions — for guidance, but they often provide little assistance. Take for example, a fairly typical proximate cause instruction:
When I use the expression “proximate cause,” I mean a cause that, in natural or probable sequence, produced the injury, the loss or the damage complained of. It need not be the only cause. It is sufficient if it is a substantial factor in bringing about the injury, loss or damage. There may be one or more proximate causes of an injury.
Ask jurors what this means in relation to the case they just heard about for the past two weeks and you’ll get an explanation that justifies their verdict. There is no “right” or “wrong” meaning; there is no “right” or “wrong” interpretation. It’s “right” if I mold it to fit the decision I want. While this may technically constitute jury nullification, it’s not really that in substance; it’s simply how human beings process information. In fact, most of the time they are not aware of these processes taking place.
Two critical elements – one related to information process and the other related to trial logistics – come together to create the “nullification” phenomenon: motivated reasoning and the timing of when jurors hear and see the verdict questions and jury instructions.
We’ve written a lot about motivated reasoning in our blogs, articles, and books – the process by which people take in and remember information that confirms what they believe or want to be believe to be true about an issue, while ignoring or minimizing contrary information. Couple this with the fact that by the time jurors are hearing the verdict form questions and jury instructions, most jurors have already made up their minds about what happened, why, and who should win, and you have a situation where it’s only natural that jurors interpret the instructions to fit their verdict preferences.
Yes, there are times when we’ve heard jurors say very clearly that they “don’t have to follow that law,” or “we’re here to decide what the law should be,” or “I don’t have to listen to what the judge told me.” However, these instances are few and far between. You are much more likely to hear jurors only reading the parts of the instruction that confirm their leaning, or providing “helpful” (e.g., biased) interpretations of the instructions as they read them aloud to fellow jurors.
For example, in a recent mock trial that included the proximate cause instruction above, plaintiff-oriented mock jurors repeatedly referenced the line, “There may be one or more proximate causes of an injury,” since the defense had spent considerable time asserting that the injury was caused by a different event. Defense advocates countered by focusing on the term “substantial” claiming that this “other” cause was not substantial. Clearly, “substantial” is subjective, and the inclusion of “may be one ore more…” provides a fairly easy out for those pushing the “multiple cause” argument.
The problem with only looking at this through a “jury nullification” lens is that attorneys might believe there’s really nothing they can do about it. Or that it’s only rogue jurors who want to upset the system. However, there are things that you can do. Here are two: 1) push for the judge to pre-instruct the jury on the critical claims, and 2) operationalize the instructions in closing.
Pre-instruct: If you can get the judge to pre-instruct the jury, you’ll be providing them a valuable roadmap to what to look for and how to interpret the information they will be receiving. Pre-instructing gives you a chance to start using the claim and jury instruction language in your opening and with witnesses. The more you provide your desired interpretation of the key terms throughout trial, the more that interpretation will stick for the most important part of trial – deliberations.
Operationalize the instructions: In closing, ample time must be taken to walk jurors through the verdict form and jury instructions. It’s not as simple as reading the question, and then summarizing why it’s a “yes,” or a “no.” The goal is to get jurors to procedurally walk through the instructions, applying them in the most helpful manner. This mindset is only fostered through showing clear connections between verdict language, instruction language, and specific pieces of evidence. Through this, you are repeatedly defining, providing simple explanations, helpful analogies, or what have you so that jurors don’t just read the instructions, but, instead, apply them in the way you want.
Remember, civil claims are full of vague and unknown terms and the jury instructions are no better. When jurors are faced with these vague and ambiguous instructions, it’s not jury nullification to interpret those instructions in a manner that aligns with the side the juror believes should win. Your goal is to do everything you can to get jurors to interpret the instructions in a manner favorable for your client.