Lobbying the Jury

by Jennifer Collins · December 13, 2006

The New York Times has an interesting editorial today in which it criticizes the Supreme Court’s decision this week to uphold a murder conviction in a case where members of the victim’s family wore buttons displaying the victim’s picture during the trial. The editorial argues that the buttons “were essentially an argument that the deceased was an innocent victim” in the fight that led to his death. Well, I’m not sure how that follows, unless the words “innocent victim” or the equivalent were displayed across the button. I think it is far more likely that the jury saw the buttons as a sign that a family was grieving, and not as a comment on the defendant’s guilt or innocence. In general, I think issues surrounding displays of emotion by the victim’s family in homicide trials are more subtle than the editorial suggests. Of course the focus of the trial rightly needs to be on the defendant’s guilt or innocence, but I am not sure that means the trial needs to be entirely sanitized of emotion. When I was prosecuting, for example, we had one judge who routinely instructed witnesses who were related to the victim that they had better not cry during their testimony. Instructions like these, or concerns over buttons that do no more than display a photo, seem to me to underestimate the the intelligence and commitment of jurors. I at least have never encountered a juror who seemed to think it would be appropriate to convict an innocent man just to ease a devastated mother’s pain — they recognize that would do nothing to help the family at all. Jurors seem to me quite capable of both empathizing with a family’s pain and at the same time putting those sympathies aside in order to focus on the evidence. Any other thoughts?

P.S. Ruckman, Jr. says:

December 13, 2006 at 10:57 am

I agree. Furthermore, one really has to wonder about the symbolic nature of the speech involved – you know, the type that affords the very highest constitutional protection. The Times undercuts its own position (legally) by saying what the buttons “essentially” meant. The very fact that it is not known (exactly) what is meant by wearing the buttons suggests it was symbolic, or pure speech. So, as you say, absent some additional written message, it crosses few lines.

I have heard of persons sitting in D.U.I. trials wearing big M.A.D.D. buttons. I wonder if you think I judge should be able to ban that sort of behavior?

best,
Ron Wright says:

December 13, 2006 at 11:22 am

I think you’re right about the buttons, and correct more generally about the abilities of jurors. I’m always suspicious of legal regulation meant to prevent poor juror performance — in a democracy, it’s best to start with a strong presumption that jurors (and voters) are competent to sort out problems for themselves. That presumption might not be factually true in a particular case, but overall it’s the best starting point.
Kristin Eisenbraun says:

December 13, 2006 at 3:16 pm

I once worked a case in which each member of the victim’s family held up a middle finger while the defendant testified. The judge had to stop the proceedings and ask the family to keep their emotions in check, but I highly doubt that this, in any way, affected the jury. However, there may have been a subtle effect on the defendant’s testimony — but, like you, I give the jury much more credit than that NY Times writer seems to. After all, they did acquit my client.
M. Hodak says:

December 14, 2006 at 2:59 pm

My own experience with the jury system supports Jennifer’s comments–jurors clearly take their roles seriously, including the presumption of innocence which is drummed into us during the selection process and reinforced by peer pressure in deliberations. The NYT, on the other hand, never fails to exhibit its elitist bent on the need of higher authorities to protect us from ourselves.
EvilGod says:

December 25, 2008 at 2:22 am

Don’t tell me you actually believe it’s possible to “underestimate the the intelligence and commitment of jurors”.