Fully Informed Jury Association

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Function of Juries & Jury Nullification | 04 Mar 2014

-Jurors: Beware of Being Too Cooperative

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Jury BoxWhat is with grand juries these days? A recent article in the Charlotte Observer mathematically analyzed the assembly line style of the Mecklenburg County grand jury- a meaningless process has become typical of today’s grand juries:

Officer Kerrick’s indictment reveals grand jury debate

During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.

That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds.

Two prominent attorneys – and even Mecklenburg’s former top prosecutor – say grand juries now fail to perform their traditional role as a protective wedge between overzealous prosecutors and the public.

“The entire system is a joke,” said Joe Cheshire, a Raleigh attorney who handles high-profile criminal cases across the state. “There is absolutely no living, breathing person with any kind of intellect who believes that a grand jury could consider and vote on 10 complex issues in the period of time that they use to deliberate on hundreds.”

How did we get to this sad state of grand jury affairs? One woman who is serving on a grand jury suggests that we often feel driven to cooperate, even when cooperating means doing injustice to someone accused of a legal offense.

Cooperation Is the Problem

Today, as I am serving jury duty, I am struck by how incredibly cooperative people are. Unfortunately, people are often cooperative with the wrong people and for the wrong reasons.

The jury receives its instructions almost entirely from the prosecutor’s office, the exception being the judge who swore us in. That judge, to his credit, told us that we did not work for the prosecutor’s office and said several times that we were a buffer between the state and the accused. But since that initial moment with the judge, all of our information has favored the prosecution and the jury wants to cooperate.

People are mostly inclined to go along. They are inclined to follow the rules (maybe especially in a place like DC where so many work for government or nonprofits or were class valedictorian). But it isn’t just that they acquiesce to authority, it is that they also don’t want conflict. And this is how you have relatively decent people who have some doubts about the process, or at least feel uncomfortable with the system, going along with it.

People want to cooperate. They don’t want to be hated. They don’t want to make the nice lady in the prosecutor’s office job harder. They don’t want to hold everyone up from going to lunch because there is more to discuss. Fighting against the current – whether majority opinion or bureaucratic process – goes against most people’s desire to cooperate.

The only small positive thing I have to say is that every person who is non-cooperative makes it just a little harder for people to go along. The more we can tip the scales, the less it becomes about whether or not to cooperate and the more it becomes about who or what to cooperate with. The more it becomes about the difference between cooperation amongst equals and deference to authority. And then, maybe, we can start having some real talk.

I think this insight is spot on, not only regarding grand juries, but petit juries as well. I can’t tell you how many times we get calls in the FIJA office from people who knew in their hearts that the just verdict was Not Guilty, but they caved in to peer pressure and voted Guilty because everyone else on the jury was doing so. The excuses I hear often have to do with cooperation. They weren’t going to change anyone else’s mind, they’ll say, so they were going to be there “forever”.

No. I guarantee you that there is absolutely no jury in the history of humankind that has been convened “forever”. If someone maintains a Not Guilty vote in spite of the disagreement of fellow jurors, at some point the judge will declare a hung jury and the defendant will not be convicted in that trial. The case may be retried, but a Not Guilty verdict is ALWAYS better for the defendant than to be convicted for a variety of reasons:
-The charges may be dropped against the defendant.
-The charges may be reduced against the defendant.
-The defendant may be offered a more generous plea bargain than was initially offered.
-Even if the case is tried again, the next jury may find the defendant Not Guilty or another hung jury may result, making it less likely still for the defendant to be tried again.

Whatever the discomfort you feel from not going along to get along with your fellow jurors, or with the prosecutor and other government officials, whatever inconvenience you or any of these other people may suffer from you maintaining a Not Guilty verdict when a just verdict requires it-that is virtually NOTHING in comparison to the damage that a Guilty verdict will do to someone who has harmed nobody.

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