Like many Volokh readers, I have not been following the Peterson trial very closely, if for no other reason than that I lack all confidence in the competence of California prosecutors to competently handle high-publicity murder trials. But listening to comments of the three jurors now being interviewed live by the networks, my faith in the jury trial system for criminal cases is reinforced. They are intelligent, careful, clear, conscientious and emotionally moved by their experience. Initially, I winced when I saw that the jurors were being interviewed. When I was a prosecutor, I always went to speak with jurors in the jury room afterwards, mainly to express my appreciation. I never asked them the sorts of questions these jurors were being asked. But I am glad I overcame my reluctance, and watched them soberly and thoughtfully respond to questions.
Update:This from a reader whose office put him under contraints in speaking with jurors after trials that were unknown in my office:
I share your faith in the jury system, having had the privilege of conducting a fair number of jury trials myself. Your post made me think of an issue I’ve thought about off and on for some time now. When I was a prosecutor in the [withheld] DA’s Office (not too long ago – I’m in private practice with a firm in Washington D.C. now) we were discouraged from speaking to “convicting” juries for appellate reasons – mainly, the fear that we would hear something impugning the integrity of the process that we’d be duty-bound to report. While I understood and adhered to the unwritten rule, I often thought to myself that defense attorneys were not bound by such restrictions, and thus wouldn’t it be better to be present (without actively participating) during such questioning to prevent the creation (accidental or otherwise) of an appellate issue? Or would it be better practice to do as the judge I clerked for did – mandate that he be present during any “debriefing”? Just curious about your thoughts on the matter.
I must confess that I love the entire jury trial experience, which may color my view. I always spoke with alternates, which carried it’s own – mainly psychological – risks (they seemed to lean towards the opposite verdict that was ultimately reached, partial or otherwise, which to me demonstrates the power of deliberation). We were also discouraged from speaking with “acquitting” and “hanging” juries because the knowledge gained might be outweighed by the frustration the exercise would engender. The one time I had to deal with that agony was one of the most painfully educational experiences I’ve ever had. I was only there for 4 years, so I know I would have had to endure that unpleasant experience many more times had I stayed longer.
Perhaps the principal reason I always went to talk with jurors in the jury room after their verdict–which I had entirely forgotten when I posted–was to protect them from potentially inculpatory questions they might be asked by disappointed defense attorneys trying to lay the groundwork for an appeal. I tended not to ask them any questions, but to answer theirs and provide them with other information that confirmed their verdict, thereby personally reassuring them that their decision was well-founded. Also, they seemed to enjoy meeting counsel.
On one occasion, the day after a rape trial ended, I received phone calls from several former jurors informing me that the convicted defendant’s cousin was out in the parking lot writing down license plate numbers and pointing at them as they drove home. They knew who he was because he had testified as an alibi witness for his cousin. This was the same person who (before he testified) I had asked the judge to summon into chambers so he could be identified on the record because of his attempt in the elevator to intimidate me and the victim during the trial. So when the jurors complained, having asked them to do their duty and convict the defendant, I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.
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