The Juror’s Handbook

Quite a few years ago when I was a highly confident 31 year old man I was summoned for jury duty. I responded and appeared in the courthouse at the appointed time only to be selected to sit on a jury to try a serious felony case despite my best efforts to appear undesirable to the prosecution and the defense. The trial took a little less that a week and we the jury reached a verdict after about 8 hours of deliberation. Over the years since that experience the impression of how ill prepared I was for the task has only grown stronger. I walked into the criminal judicial arena that day with only a television drama viewer’s knowledge of our system of law enforcement and criminal justice. If I had it to do over again with the benefit of the wisdom gained over a full lifetime of living the defendant would receive a different verdict.

Most cops, prosecutors, and judges in America are fair and honest and they do a good job of keeping our communities safe for law abiding citizens. I am especially grateful to cops, the front line soldiers who go wherever they have to go 24/7/365 and deal with whatever is there, often placing themselves at risk of personal injury and death.

Somewhat over 1,000,000 individuals are convicted of a felony in state court every year in the United States. Overwhelmingly, the system charges the right person with the crime but errors do happen. John Grisham did an excellent job explaining how an innocent man’s life was ruined by the incompetence and corruption in law enforcement, prosecution, and the court system in his excellent non-fiction book The Innocent Man. In that case misdeeds by the police officers, investigators, forensic experts, and the prosecutor that led to the wrongful conviction were so egregious that it is impossible for me to believe that some of it was not intentional. As of June 2017, the Innocence Project has helped to exonerate 2052 individuals who were convicted and imprisoned for crimes they did not commit; estimates are that there are many more such individuals still behind bars. The damage done to the lives of these people cannot be undone. It is impossible to restore a person’s life after they have been wrongfully convicted and imprisoned.

Problems with criminal courts and juries swing both ways. In the Casey Anthony trial a young Florida mom was tried for the death of her baby girl (Caylee). The prosecution presented evidence that supported the conclusion that Casey Anthony killed her daughter, and went a long way to establish when, how, and why she did the deed. The defense offered some far-fetched explanations for Casey Anthony’s behavior around the time when the little girl disappeared and was killed. The jury gave her a not guilty verdict and set her free. A serious misunderstanding by the jurors of the meaning of “reasonable doubt” is the only plausible explanation.

Serving on jury for a criminal trial is a weighty responsibility. The jury must stand up for civilization and vote guilty to protect society from those who refuse to conform to society’s rules and live in peace with their neighbors. The jury must also serve as the is the last hope for the wrongfully accused who regretfully appear in courts somewhere in America every month.

When the jury finds the defendant guilty (convicts), the decision is subject to review (appeals) at several levels. When the jury finds the defendant not guilty (acquits) the decision is final.

1. A Crime Occurred

The first thing the prosecution must prove is that the stated crime actually occurred.

A defendant must be charged with committing one or more actions that violate a specific criminal statute according to the literal text of the law. Merely doing something that is morally wrong or behaving in an uncivilized manner is not sufficient grounds to convict a person of a crime. The prosecutor must identify a specific criminal statute that the defendant is charged with violating in order to establish grounds to impose punishment.

In cases where there is no physical evidence and no objective witnesses, the jury may find that they have questions about whether the specific crime that is charged actually occurred. Sometimes prosecutors are lazy or bend the rules to suit themselves. There have been prosecutors who decided that whenever any citizen discharged a firearm in public then they must be arrested and charged with a crime. In these cases the prosecutor would charge a defendant with a cornucopia of violent offenses in the hope that the defendant would plead guilty to something rather than incur the expense and risk of a trial.

Early in the deliberations the jury must find that they are all convinced beyond a reasonable doubt that the specific crime(s) that are charged actually occurred. If they are not convinced that the charged crime occurred then the defendant cannot possibly be found guilty.

2. The Defendant Did It

If the prosecution establishes that a crime occurred, the next task is to introduce and defend evidence that the accused committed the crime. Here the prosecution has a huge advantage over the defendant. The police officers, detectives, and crime scene technicians are all government employees who may be utilized by the prosecutor to gather evidence and build the case. The defendant usually has no prior experience with crime technology and certainly has no on-call staff available to gather their own exculpatory evidence or to review the work of the state to find errors. Few defendants will have the personal financial resources to hire a team to mount an effective challenge to the state’s experts. Although the judge is supposed to be impartial, juries should not ignore the fact that the judge is also a state employee. It is impossible for judges to not get familiar with prosecutors, police officers, detectives, and crime technicians. They work together year after year.

When as often happens the defendant has few personal resources, the state will assign a public defender. I admire public defenders. They perform a task that will never earn them admiration from the rest of the criminal justice staff. A defendant relying on a public defender is at a

3. The Burden of Proof

The prosecutor must provide the jury with convincing evidence that a crime occurred and the defendant committed the criminal act.

The prosecution has wide discretion to decide whether to charge an individual with a crime. Although elected officials and newspapers may clamor for the cops and prosecutors to “do something” about a crime problem, criminal charges should only be filed when the prosecutor has reliable evidence that a crime occurred and that a specific individual engaged in behavior that violated a specific criminal statute. As such the entire burden of providing the jury with convincing evidence to support a guilty verdict rests squarely upon the prosecutor. The prosecutor has the resources of the police officers, investigators, crime scene technicians, and forensic experts to work to gather evidence to solve the crime.

If during deliberations the jury finds that there are unanswered questions about whether the crime occurred or whether the accused committed the crime then the jury should regard this as a failure by the prosecution to prove its case. The jury has no duty to fill in the gaps. The prosecution should tell a convincing story supported by evidence about how the defendant committed the crime and explain any gaps in the narrative with respect to things that matter to determine guilt or innocence.

4. Reliable Evidence: Who Do You Believe?


Studies with video recordings of events show that eyewitness accounts of what happened when witnesses saw a staged crime event are far from perfect. When watching a crime scene most people do not perceive everything that happens within their field of view. They tend to focus on one part of the scene and fail to observe other activity happening in the area. They may blink or flinch and miss critical moments. They may be intentionally distracted from seeing the criminal act.

Even eyewitness identifications have proven to be marginally reliable. At the time a crime occurs very few people will carefully scrutinize the criminal. Due to the stress of the encounter the victim is focused on survival. The criminal may do things to obscure his identity. The crime may take place under poor lighting conditions. The victim may have a general idea of what the criminal looked like but unless the criminal has a unique distinguishing feature (purple hair) the victim will not be able to identify the criminal from a group of similar looking men with any reliability. Additionally, studies of wrongful convictions have shown that line-ups can be manipulated to guide a victim to select a particular candidate.

Our memories are not perfect. The best witness accounts are those that are recorded as soon as possible after the event such as words spoken on a recorded 9-1-1 call or a statement made to an investigating officer writing his report shortly after a crime occurs. As time goes by recollections by witnesses tend to fade or become modified in their memory.

And of course people lie. Everybody lies. When your wife asks “Honey, do you think I look fat” what do you do? If a cop or an attorney is found to have lied to the court they face severe adverse professional consequences and criminal prosecution. But they may omit details that they know are relevant in order to try to steer the jury to a conclusion.

Because of these problems jurors should adopt a skeptical demeanor while listening to testimony. Watch the witness’s eyes to see if he looks down or to the side before he speaks, which is an indication that he is measuring his words rather than plainly reciting what he saw.

Physical evidence is extremely useful to provide a foundation of reality that jurors can depend on. Crime scene technicians who gather and analyze physical evidence are usually one or more steps removed from the actors in the crime and investigation. Although they may make mistakes they are very unlikely to be drawn into a conspiracy to suppress or alter evidence. In a trial of a major crime it would be very difficult to convince me to vote to convict someone without providing physical evidence that a crime occurred and that ties the defendant to the crime.

The defense should work to expose weaknesses in the prosecution’s case. A skillful defense attorney is very effective at identifying inconsistencies in testimony and pointing out the limitations in expert opinions and technical errors in the physical evidence.

5. Beyond a Reasonable Doubt

At this point please take a moment to note that in life it is nearly impossible to be absolutely certain about matters concerning the behavior of other human beings. Absolute certainty means beyond the possibility of the slightest doubt. Absolute certainty is rarely attainable in life and never in court. Jurors will always have some doubt when they decide a case.

How convincing must the prosecution’s case be? The threshold for the burden of proof in a criminal case is beyond a reasonable doubt. To find a defendant guilty the jury must decide beyond a reasonable doubt that the crime occurred and that the defendant is guilty as charged. It is very important that jurors in a criminal trial have a clear and precise understanding of what is and is not reasonable doubt.

So what is reasonable doubt? Reasonable doubt exists when there is a reasonable explanation for all of the evidence without the defendant being guilty of the crime.


Reasonable doubt cannot:

  • Depend on magic, miracles, or supernatural events.
  • Rely on the occurrence of extremely unlikely events without strong proof that the unlikely events happened in this case.
  • Be founded on a theory of conspiracy among the cops, technicians, prosecutor and judge unless there is strong evidence presented in this trial that such a conspiracy exists.
  • Be founded on anecdotes about similar cases that occurred in the past.

If the prosecution’s story leads you to conclude the defendant did it, and the evidence cannot be explained away without relying on one of the unreasonable elements above, then the case is proven beyond a reasonable doubt and a guilty verdict is supported.


6. Civil Matters

The foregoing concerns criminal trials where the defendant may lose his freedom or even his life based on the jury’s decision.

You may also be called to serve on a jury for a civil matter. Civil matters are usually lawsuits where one party is seeking compensation (money) from another party. It is a money fight. It is theoretically possible to file a lawsuit and ask the judge to order the other party to take certain action, like sign a deed, but that is rare. The state is not involved in civil trials beyond the fact that the trial is conducted in a state courtroom staffed by a judge who is a state employee.

The standard of proof in a civil matter is the preponderance of the evidence.  Preponderance is the legal way of saying the jury should decide which side has more convincing evidence that the jury believes has more truthfulness and accuracy than the other side. This statement implies that there will be some attempted deception during the proceedings.






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