David Bernthal/Off the Bench: Jury doesn't always see all evidence

David Bernthal/Off the Bench: Jury doesn't always see all evidence

Trial by jury is an extremely important aspect of the judicial system in our country. I have written about it before and will likely do so again. A reader from Danville wrote me recently. While I cannot address personal legal matters or offer advice, the individual did raise a subject that I think impacts many.

The reader had done her civic duty and served what she described as "several bouts of jury service." She experienced frustration that I shall attempt to address in this column because it is not unique to this juror. In the words of the reader "... I have found several times that facts and information that would clarify key points affecting the jury's decision come out AFTER the trial." She went on to describe an encounter with a defendant who had been convicted by a jury upon which she had served. While the conversation was cordial, the person that had been found guilty reported several facts which the juror felt would have helped the defense case. The juror, like many, wanted to know why some information was not presented to the jury.

Whenever I presided over a jury trial I asked the prospective jurors if they would promise to decide the case based on what was presented in the courtroom. I knew there would be questions that would not be answered but I did not want them to speculate or do independent investigation. The verdict must be based upon the evidence presented. So, why are some pieces of information not included in the evidence?

There are several reasons something may be excluded. First, trials proceed according to rules, including rules of evidence. While there are many, perhaps the most familiar would be the prohibition on hearsay evidence. That rule along with the many exceptions, would take up a book. Suffice it to say that some evidence is barred by one or more rules of evidence. Even something that would be admissible under the other rules can be withheld if the danger of unfair prejudice outweighs the value of the evidence in deciding the case. The judge who is presiding must make the decision when there is a challenge to evidence that one side wants to present. If that decision (whether correct or in error} is to exclude the evidence that information will not be considered by the jury.

Strategic decisions are another answer. The lawyer trying the case must decide what she wants to present. Sometimes the decision is to not present the information. The lawyer may think something is likely to confuse or distract the jury. The attorney also wants to guard against allowing the opponent to introduce something that had been barred. This is referred to as "opening the door." While the first factor involved a decision of the judge, sometimes the decision of the attorney limits what the jury gets to hear.

Less common but still a factor is human error. Sometimes in the heat of battle an attorney can forget to present some item of information. It might have been helpful and admissible under the rules but it was simply overlooked. Rarely do such oversights affect the outcome of the case. Lawyers trying cases go to great lengths to make sure all the essential facts are proved. However, this can leave a juror feeling the story was not completely told.

Courts are mindful of jurors feeling as if they are getting the "mushroom treatment." Politely translated this means kept in the dark and fed a limited diet. In recent years, some courts have experimented with the practice of allowing jurors to ask questions. The juror can write Out the question and submit it to the trial judge. The lawyers have a chance to object outside the presence of the jury (to avoid angering the juror who submitted the question). If the judge determines the question is improper or would call for inadmissible evidence the judge will decline to ask it. The reason can be explained after the trial. Otherwise, the judge will ask the question and the answer will be part of the body of evidence. While this practice has not become universal, the judges I know who have tried it like it. They report that they do not get that many questions but many of those that are submitted are asked. Allowing jurors to submit questions keeps the jurors engaged and provides a sense of empowerment.

Many people have asked questions similar to the one posed by the reader from Danville. I may experience the same frustration when I report for jury duty this summer.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate and before that an eight-year associate circuit judge in Vermilion County. His email is askthejudge1@gmail.com.

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