Tagged: Jury Deliberations

The Law Is A Ass

Bob Ingersoll: The Law Is A Ass #371


Let’s make it 12 Angry Men and one really pissed-off judge.

When I was practicing law in Cleveland, there was a judge who hated that movie. Really hated it. Once a prosecutor mentioned the 1957 movie during jury selection.. The judge actually interrupted the prosecutor, scolded him for mentioning the movie then exploded because the prosecutor said it was an example of how juries should deliberate.

“That’s a horrible movie!” the judge said. His rant could be heard back in chambers. On another floor. That was just his warm up. He next went into a tirade to make sure the jury knew why the movie was horrible and why no jury should do what the eighth angry man in 12 Angry Men did.

What did the Juror # 8 do that so infuriated said judge? Well, I’ll tell you. But before I tell you, I have to tell you that in order to tell you, I have to tell you important plot details about the 12 Angry Men. If you’ve never seen the movie but plan to and don’t want me to tell you telling plot details then…


… stop reading. It’s really that simple. Now cue the Bob’ll Tell Overture, because here we go.

In this flick. In this flick. In this classic flick. (Boy that got old fast!) twelve jurors were deliberating their verdict in a murder trial. The defendant was an 18-year-old from the slums of New York City on trial for stabbing his father. Eleven jurors thought the defendant was guilty. Juror # 8, didn’t agree. What followed was 90 minutes of discussion among one dozen displeased deliberaters.

One of the key pieces of evidence was the murder weapon, a switchblade knife with a carved handle just like the knife the defendant carried. Eleven jurors said the murder weapon was the defendant’s knife, so he had to be guilty. Juror # 8 argued someone else could have owned a duplicate knife and used it to kill the victim. The guilty votes argued the intricate carvings on the knife’s handle were unique. The knife was one of a kind. There wasn’t another one like it anywhere else in the city. So the murder weapon had to be the defendant’s knife.

That’s when Juror # 8 (Henry Fonda)did the thing which made that Cleveland judge so mad. (No not sire Jane Fonda.) Juror # 8 pulled a knife out of his pocket and showed it to the other jurors. Not just any knife; a knife that was identical to the murder weapon.

The previous night, Juror # 8 wandered the slums where the defendant lived. He found a knife identical to the defendant’s in a store and bought it to prove there was more than one knife that looked like the defendant’s. So it was possible the murder weapon was someone else’s knife.

I’ll give Juror # 8 credit, buying that knife before the trial was even over proved he had foresight. I can’t give Juror # 8 credit for anything else, however, because what he did was conduct his own research into the case.

Last week, as you recall, we left Will, Dr. Smith, and the Robot

Sorry, wrong recap.

Last week, I discussed why it’s improper for a juror to have personal knowledge about a case. In much the same way, it’s also improper for jurors to conduct their own research into the case or find their own evidence separate from the evidence that was introduced at trial.

Why is it improper? Juries are supposed to consider only the evidence introduced at trial. Evidence someone has testified about and then been cross-examined about. Evidence that opposing counsel has had an opportunity to challenge. When juries produce their own evidence the lawyers don’t get any chance to challenge it.

Say the defense attorney had introduced that identical knife at trial, the prosecutor could have looked for other evidence to prove the murder weapon was the defendant’s knife. Maybe the duplicate knife was part of a shipment that came in after the murder, so, up to that point, the defendant’s knife was the only knife like it in the city. We’ll never know what evidence the prosecutor might have introduced, because he never had that opportunity. The jury found new evidence after the trial part of the trial was over.

Another problem with jurors conducting their own research into a case, their research might find evidence which was inadmissible. What if the police interviewed Bill who said, “My cousin told me he saw the defendant running away from the murder scene right after it happened,” but the police never found the cousin. Bill’s statement would be inadmissible hearsay. If one of the jurors did his own investigating and also talked to Bill then told the rest of the jurors what Bill said, the jury might have believed the cousin’s statement and based a guilty verdict on the hearsay statement.

Hearsay is inadmissible, because the parties can’t cross-examine the actual declarant, who didn’t testify. Maybe the cousin hated the defendant and was lying to frame him. Had the cousin testified, the defendant could have shown this and the jury would have discounted his statement. As no one can cross-examine a hearsay declarant for possible bias, hearsay isn’t admissible. But if the jury’s private research finds this inadmissible hearsay and considers it, it’s considering evidence the judge wouldn’t have allowed at trial.

12 Angry Men extolled the virtues of jurors conducting their own research and collecting their own evidence, which is why a judge in Cleveland had a problem with it. Meanwhile, the public defender in Cleveland, me, had a different problem with the movie. It portrays defense attorneys in a bad light. You didn’t even see the defense attorney and it still portrayed him in a bad light.

The prosecutor’s case relied heavily on the fact that the knife was unique. But a duplicate knife was so easy to locate Juror # 8 found one in only one day. Why didn’t defense counsel do this?

How difficult would it have been for defense counsel to check a few stores and find a duplicate knife? Based on how long it took Juror # 8, not very difficult at all. Even if the defense attorney didn’t have any staff or investigators, he could have done it himself. All he had to do was skip I Love Lucy one night and check into things.

Maybe he didn’t know Desi Arnaz had the foresight to shoot I Love Lucy on film not video tape so that it would last for decades and be syndicated forever. Maybe he didn’t know he’d have another chance, or ten, to see that episode in reruns. (If it was the Vitameatavegamin episode, more like one hundred chances.) Even if he thought it was his only chance to see the episode, would skipping I Love Lucy to do his job properly have been too much to ask of the defense attorney?

If the defense attorney had done his job properly, he could have introduced this evidence during the trial and made his client’s acquittal easier. Not to mention making life easier for some poor unsuspecting prosecuting attorney in Cleveland forty years later who wouldn’t have incurred a judge’s renown and redoutable robe-ed wrath.

The Law Is A Ass


Batman_Gotham_Adventures_Vol_1_35So how was this even remotely fair?

First, Mark Filcher was on trial with a name like Filcher. Filcher? From the 16th Century word filch meaning “to appropriate furtively or casually?” Why didn’t Mark just change his name to I. Emma Thief and save us all a lot of trouble?

Second, the jury of Mr. Filcher’s peers included Bruce Wayne; billionaire playboy, corporate CEO, and phila… er, phila… er, yes, er, Good Deed Doer. I’m not saying it was unfair because a billionaire playboy and philanthropist wasn’t exactly a peer of career criminal Mark Filcher. (Although, truth be told, I’m not sure an actual peer is Bruce Wayne’s peer.) I’m saying it was unfair because, this being a Batman comic it should come as no surprise to you that Filcher was apprehended by Batman. And this should really come as no surprise to you; Bruce Wayne is Batman.

Seriously, how fair is it to have the guy who arrested you sitting on the jury which is deciding whether you’re guilty or not guilty of the crime that guy arrested you for?

(Please tell me I don’t actually have to answer that last question.)

Bruce Wayne had personal knowledge about the case. People with personal knowledge of a case aren’t supposed to sit on juries. They might decide the case based on their own knowledge of the case rather than the facts presented in evidence. In fact, that’s one of the standard questions that’s asked of prospective jurors, whether they’ve read news paper accounts or heard new stories about the case or have any personal knowledge about the case. It’s asked to keep people with personal knowledge of the case off the jury.

To be fair, Bruce did try to get off the jury; with an attempt that was more half-hearted than the Tin Woodsman without his testimonial.


Question: “And is there any reason you shouldn’t be on this jury?” Answer: “Yes. I’m Batman.”


That was fine as far as it went. After all, Bruce was under oath and couldn’t lie, and his being Batman was both the truth and a valid reason why he shouldn’t be on the jury. Unfortunately, as far as it went was about as far as Usian Bolt went on that Segway. After the judge admonished Bruce to refrain from further jokes, Bruce ended up on the jury.

It would have been easy for Bruce to get off the jury. He could have said Wayne Enterprises’s business would suffer were he to serve on the jury instead of being its CEO. I’ve seen this excuse used many times by people who want to get off a jury. And successfully. Okay usually by rich people who contributed to the judge’s campaign. But Bruce is certainly rich enough. So, unless he contributed to the trial judge’s opponent, he would have qualified.

Or Bruce could have said, quite truthfully, “I saw Batman arresting Mr. Filcher.” Everyone would assumed Bruce was standing on the street looking up when Batman arrested Filcher and saw what happened. But because he had seen the arrest and had some personal knowledge of the event, he would have been excused from the jury.

Or Bruce could have said, again quite truthfully, that Batman saved his life on more than on occasion, so he tends to believe Batman doesn’t make mistakes. (Remember this is the Batman from Batman the Animated Series we’re talking about, not the sociopathic buffoon who’s been wearing the costume since the New 52 started. It’s possible people would believe animated Batman was incapable of mistakes.) Bruce could have said he believed anyone Batman arrested was probably guilty so his ability to be fair and impartial toward Mr. Filcher would be compromised. Quite truthful. And it would have gotten him bounced from the jury faster than asking, “Can I plug in the electric chair?”

Any of those responses would have gotten Bruce excluded from the jury. Unlike Bruce Wayne or Wile E. Coyote, I am not a super genius. So if I was smart enough to figure out how Bruce could have gotten off Filcher’s jury, what’s Bruce’s excuse for not being excused?

Bruce didn’t try to get off the jury so heard the case. Probably fortunate for justice, but unfortunate for Mr. Filcher. Or any concept of due process. The jury’s initial vote was 11-1 for acquittal. But Bruce knew Filcher was guilty. So in a reverse 12 Angry Men, he filibustered until he was able to convince the other eleven to change their minds and vote 12 to 0 for conviction.

Bruce convinced the jury, in large part, because he established that Filcher lied about his alibi. The attempted kidnapping for which Filcher was being tried occurred in the Stovertown neighborhood of Gotham City at 6:00 p.m. Filcher claimed he was in the Kubrick District until 6:00 p.m. then drove to Templeville where he was arrested at 6:15. So he couldn’t have been in Stovertown to attempt the kidnapping. Bruce found a juror who lived in Kubrick and that juror said in rush hour traffic it would take forty minutes to get from Kubrick to Templeville. Filcher couldn’t have stayed in Kubrick until 6:00 then gotten to Templeville by 6:15, as he claimed. It was more likely that he left Kubrick at 5:00 – which was the last time anyone remembered seeing him in Kubrick – went to Stoverville, attempted the kidnapping, then fled to Templeville. I mention this to point out that personal knowledge of this type – how long it might take to drive from one part of town to another – is not impermissible in jury deliberations.

Jurors are allowed to bring personal knowledge of a general nature to deliberations. They’re not required to forget everything they know; although I swear some of the juries I had did just that. Jurors have general knowledge about things like what time the sun rises, when does Easter fall each year, and what is the airspeed velocity of an unladen swallow? Those sort of things, jurors can bring to and use in their deliberations. They just can’t have personal knowledge about the specific facts and details of the case they’re hearing.

I guess we’re supposed to be happy about Bruce staying on the jury, because he made sure the bad guy was actually convicted of the crime he actually committed. I wasn’t happy, because, as I said, Bruce should never have been on the jury. Defendants are entitled to juries that are fair and impartial, not juries that are, to be fair, partially partial.