Jury Trials: Lessons Learned

I have tried three cases in the past month.  Two of my juries returned a guilty verdict in spite of what I thought was enough to create reasonable doubt in the state’s case. 


I talked to the juries afterward.  It was pretty clear to me from what they said and their body language that they were left with some residual doubt about my client’s guilt – not “unreasonable doubt” like the state says in their closing arguments or a “possible doubt” but a real doubt. 


It was also pretty clear to me that they had expected my client and I to not only introduce doubt into the equation but “prove” our case somehow, despite the court’s instruction that that was not our job.


I say all this to point out two things:


If you are called to jury duty and you are selected to be a juror on a criminal case,  you need to commit yourself to returning a not guilty verdict, IN SPITE OF YOUR EMOTIONS, if the state does not prove its case BEYOND ALL REASONABLE DOUBT.  If you are left at the end of the case “not sure what happened” or “could see that he (the Defendant) may not be guilty” (actual words of my jurors this past month – who convicted) you HAVE to acquit the Defendant.  It doesn’t matter if you feel like what happened was wrong, upsetting, or immoral.  Unless the state has proved it to you, you have to put those emotions aside and cannot make the Defendant pay for what happened. 


If you are a Defendant, you need to be aware of the risk you are taking by having a jury trial.  Sometimes there really is no downside (there wasn’t in any of my cases this month), but sometimes there is.  You may be risking decades more in prison.  You may be turning down a deferred adjudication.  These are real risks.  And your jury may not be convinced. Your jury may doubt your guilt.  AND THEY MAY CONVICT ANYWAY.  You can never be sure what a jury is going to do.


Lastly, this may be controversial but I cannot help but notice, that both of my “guilty” clients were people of color and my not guilty one was white.  It is not out of the question that this played into the jurors decisions. 


Just some things to think about.  Please, if you are called for jury duty and feel like you cannot be fair – and cannot acquit if the evidence does not prove the case beyond all reasonable doubt – tell the attorneys who question you.  If you can be fair, if you can hold the state to its burden, and can acquit if the case calls for it – don’t think up an excuse to get off.  We need you to make this system work and stop bad prosecutions.

It's Impossible and Unethical: Why a Lawyer Can't Guarantee a Result

It’s Unethical and Impossible:  Why Your Lawyer Can’t Guarantee a Result


I get a lot of people who call wanting me to help them on their case.  They may want out of jail or they may already be out on bond and be looking for a lawyer.  It is inevitable that many of them ask me:  what can you do for me?  What am “I looking at”?  What am I facing?


I’m going to tell you what many lawyers won’t.  It is not only unethical for a lawyer to be able to promise you a result on your case – no jail, no prison, probation, or a dismissal – it is impossible to do any more than go over the possibilities on a first phone call.  Anyone who tellsyou “oh I can get you probation” or “oh I can get that dismissed”  is unethical and probably trying to get you to make a down payment.  Do not be surprised that if you hire a lawyer based on the fact that they promised you a result, they will come back later telling you it’s not going to happen.  At that point, you’ve already spent your money and have to make a decision on whether to start all over again with another lawyer.  That means cutting your losses – you aren’t going to get any of that money back – and spending money on another lawyer.


·         It is unethical. 


Lawyers are bound by rules of discipline.  These are rules that govern the way we practice.  Lawyers can be disciplined by the state bar – including having their licenses suspended or permanently revoked – if they violate the rules.  One of the most important rules is very clearly stated :  do not promise a result.  It is a very sinister thing for a lawyer to promise a result.  Do not get it twisted:  lawyers do this to get you to hire them and take your money.  They absolutely know that a result is not guaranteed in any case.  It’s just impossible – its tantamount to telling the future with certainty.  If they tell you different – they are lying.


·         It is absolutely impossible.


Legal matters are unpredictable on some level – even the most simple ones may have an unknown, unpredictable element.  We have an adversarial system and results come about due to all sides coming to a compromise or a jury or judge deciding after a trial on the merits.   A lawyer cannot control what the other side is going to do – what they are going to want, what they are going to offer, or what evidence they have that you don’t know about yet.  A lawyer cannot at all tell what a jury or judge is going to do after a trial.  It is tantamount to telling the future.  Lawyers are not psychic.  (And sorry to break it to you – no one is a psychic.)


What is allowed?  Lawyers can present all the likely and unlikely outcomes – the full range of possibilities.  In a criminal case, they should go over the full range of punishment.  They can discuss the likelihood of dismissal.  They can discuss the likelihood of probation.  But particularly in a first phone call or first consult, this is all to be done with generality.  It is not until your attorney gets all the evidence together, completing the discovery process, and starts negotiations with the opposing party – the prosecution in a criminal case – that it becomes more clear what the options in your case are. 


To put it succinctly – do not ask a lawyer if s/he can get your case dismissed and keep calling lawyers until you find one that assures you s/he can.  That inevitably going to get you someone treading in unethical territory and is probably interested more in your money than in your case.  The best lawyers are going to explain they cannot promise a result and will do the best they can in your case given the facts, the evidence, policies in that county, and your history.