Sometimes movies have good lessons. “12 Angry Men” had a few. Below is a short snippet from a 9th Circuit Court of Appeals order. I will also provide the link to the full opinion but wanted to briefly mention a couple of lessons from the below-referenced case:
OPINION REINHARDT, Circuit Judge: Consider two scenes: Scene One Juror #8: I just want to talk. Juror #7: Well, what’s there to talk about? Eleven men in here think he’s guilty. No one had to think twice about it except you. Juror #10: I want to ask you something: do you believe his story? Juror #8: I don’t know whether I believe it or not — maybe I don’t. Juror #7: So how come you vote not guilty? Juror #8: Well, there were eleven votes for guilty. It’s not easy to raise my hand and send a boy off to die without talking about it first. . . . We’re talking about somebody’s life here. We can’t decide in five minutes. Supposin’ we’re wrong. Scene Two Juror #6: I said . . . this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt. . . . Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it . . . . I would say that two-thirds of the jurors have tried to persuade— have actively tried to persuade . . . him that his current view is incorrect. Juror #4: Well, I guess he believes from the evidence that he’s seen that there hasn’t been sufficient proof. . . Juror #5: I think the question may have been raised: “Do you have a political agenda?” I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said. Juror #9: Well, he said this is a serious thing, and I don’t really feel that there is enough cause for — or something to that effect. . . What he said was, “I wouldn’t want to take anyone’s freedom away, unless,” you know, “I was sure that certain things took place.” . . . . The first passage above is dialogue from the classic Academy Award-winning 1957 film, Twelve Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner’s murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others. In the end, the trial court dismissed that juror on the ground that he was “biased” against the prosecution. With an alternate juror in place, the jury returned a guilty verdict. Twelve Angry Men made for great drama because it violated the sanctity of the jury’s secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner’s conviction became final (and exists today as well), the trial court’s actions violated the petitioner’s Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ. [Here is a link to the full opinion: http://www.ca9.uscourts.gov/datastore/opinions/2011/05/23/07-56127.pdf]
I have two comments, one relating to the opinion, and one relating to a comment of a quoted juror. Regarding the opinion itself, I give the judge credit for understanding that holdout jurors are a fundamental part of our legal system. Expecting that all jurors will come to a consensus on every case is not only unreasonable but it also implies that all minds think alike – which is the very antithesis to the purpose of having a cross-section of the community.
Secondly, notice that the juror says, “I wouldn’t want to take anyone’s freedoms away unless I was sure that certain things took place.” [Emphasis added] This comment is common in both civil and criminal lawsuits when plaintiff’s attorneys or criminal defense attorneys are not clear throughout trial about the burden of proof. When you try cases, make sure that jurors understand that they do not have to be 100% sure of anything. Ask in jury selection how sure they would have to be to make a decision in this case – 80%? 70%? What is their line. In civil cases, you can get challenges for cause based upon these answers. Make sure you reiterate the burden in opening, through witnesses, and in closing. Jurors cannot think backwards, so if you only hit on the burden once in voir dire/opening, they forget it by the time you mention it again in closing and by that time, they have analyzed all of the trial evidence through a lens of “am I sure?” Particularly in civil cases, preponderance is one of your best weapons. Don’t forget to use it!