A while back (what’s a couple months between friends) I wrote a post about inherent bias and prejudice, the premise of which was that it is difficult for the defendant to win any criminal case because jurors – the decision makers – start with a bias in favor of the prosecution. They prejudge the defendant because he is charged with a crime and often because he (or she) “looks guilty,” whatever that means! They tend to believe the justice system sorts out innocent people before they get to trial. So, getting to “not guilty” is always a crap shoot.
In April I tried a case in which a Mountain Home Airman was charged with rape and aggravated assault with a deadly weapon in State court. The Air Force had administratively discharged him for the same allegations, but there the standard of proof was “by a preponderance” not “beyond a reasonable doubt.” The Air Force board was asked to decide whether my client should be fired based on the evidence – or should he be permitted to stay on active duty.
The criminal trial for rape and aggravated assault carried a potential life sentence, so the stakes were far higher for our client in State court than at the Air Force board.
At the discharge board hearing, the inherent bias of the Air Force officer decision makers in favor of good order and discipline, as well as protecting the Air Force reputation within the local community played in favor of terminating my client’s service. The “prosecutor” for the board argued as much. The allegations and criminal charges had been in the news, subjecting the base to critical review by the community. So the five officer board members were likely prejudiced (inherently, not purposefully) against my client and supportive of upholding the reputation of the Air Force and the base. That bias in favor of the Air Force almost certainly and predictably played in favor of discharge.
In the criminal trial the bias in favor of the victim’s story and prejudice against my client were reversed as the trial progressed. My guy looked like the all American Airman caught in the claims of a young woman who said she had not consented to sex, but admitted she was so drunk she could not really recall even going home with him. She did not look or sound like a victim and importantly she had told her friend, “I think I had sex…”
I understand that a victim might truly not be certain whether or not she had been assaulted, but if you claim not to have consented, that type of uncertainty can only work against you in court. The result – not guilty of rape and the aggravated assault charges.
When the case was over a juror told me that our client “looked not guilty.” He showed up for court in a blue suit and white shirt and never over-reacted to the testimony, even when it was graphic and accusatory. He had told his story to the police – and that story had its own warts – but he met the jurors’ expectations as to what a person would say to a detective when confronted with such an allegation.
The jury was out for nearly four hours. Why? Because getting 12 people to agree that there was not proof beyond a reasonable doubt involved a lot of consideration, and a lot of going back and forth.
A friend of mine (Psychologist) once told me jurors are like any group asked to make a decision. He says they go through three stages – forming, storming and norming. They “form” into subgroups based on their initial perception of the facts and their own bias and prejudice. They ”storm” over what actually happened, or in a jury setting what the evidence proves beyond a reasonable doubt. And they “norm” or decide based on all of that plus the give and take of any group decision. Their decision literally represents the “norm” of the group. BTW – credit Bruce Tuckman’s stages of group decision-making.
Kind of like what used to happen in Congress. They make a decision (the jury, not Congress). That decision is the performance of the group/jury.
We give jurors instructions on what “reasonable doubt” means, but the instructions seldom answer their questions. How much doubt is enough? What is reasonable? When can I go home! I try to deal with these issues throughout each trial, but still, getting to 12 votes for the defense is a challenge.
So pay attention to the details. Answer the tough questions that you know the jurors will ask, and focus your case on reasonable doubt. By doing so you focus the jurors on the problems with the prosecution, and not the problems with your case. And try to convince your client to show up looking like an innocent person – dressed conservatively and as jurors think they would show up if their life was on the line.