Legal question

[ex-khobar Andy]

I am reading the reporting on the Menendez corruption trial. Apparently the jury is now deliberating.

According to the CNN report, neither Menendez nor his alleged partner in crime testified: "Both Menendez and Melgen opted not to testify in their own defense -- a choice the judge explicitly instructed the jury to ignore as the defendants' constitutional right."

Is that a federal thing or state? It would seem to me more logical for the judge to point out that the accused has a constitutional right to stay silent, and the jury should not automatically conclude guilt from that - but that the refusal is just another piece of the entire set of circumstances which they can interpret as they see fit. Just like every piece of evidence. I think (??) the jury is allowed to interpret the defendant's demeanor under questioning.

[BoSoxGal]

Here is the model federal instruction:

3.3 DEFENDANT’S DECISION NOT TO TESTIFY

A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.

Here is the instruction used in Montana:

In deciding whether or not to testify, the Defendant may choose to rely on the state of the evidence and upon the failure, if any, of the State to prove beyond a reasonable doubt every essential element of the charge against him.
​A Defendant in a criminal trial has a constitutional right not to testify. You must not draw any inference from the fact that a Defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.

I’m sure every other state has a similar instruction. The federal caselaw suggests this instruction should not be given over defense objection, but shall be given absent objection - same guidance is provided in Montana’s model instructions.

It’s human nature for the jurors to expect to hear from the defendant, and because the 5th Amendment right is fundamental, jurors are best instructed, to my mind, that they cannot infer anything from the defendant’s choice not to testify. I can’t imagine a scenario where as a defense counsel I wouldn’t want the instruction; as a prosecutor I always addressed the issue in voir dire so the jurors heard from the State the sacrosanct nature of this right and of the responsibility of the State’s evidence alone to carry the burden of overcoming reasonable doubt.

[BoSoxGal]

Yes, if the defendant testifies, his veracity under oath may be judged by the jurors like any other witness, as instructed. But his decision not to testify may not be considered by the jurors in any form.

And if you believe that’s the way it happens, I’ve got a bridge to sell you . . .

[ex-khobar Andy]

Yes, if the defendant testifies, his veracity under oath may be judged by the jurors like any other witness, as instructed. But his decision not to testify may not be considered by the jurors in any form.

And if you believe that’s the way it happens, I’ve got a bridge to sell you . . .

I think that last bit is the nub of this (my emphasis): no matter how much the judge tells you to to ignore or discount it, human nature is what it is, and as a juror one might draw one's own conclusions even if subconsciously.

[Guinevere]

It's a system made of humans, Andy. If you think it's perfect, or without faults, you're misguided. But it's a good system and probably better than most give it credit for being. I'm not a criminal lawyer, but civil juries have similar "rules" they must follow that may not always be intuitive.

As for human nature, humans are also rules followers and especially in places where they are unsure or uncomfortable, like a courtroom. My experience and observations tells me that most jurors try to apply the rules as directed by the Court. But because they are human, there is no guarantee.

As lawyers, we do our best to help the jurors follows the rules that benefit our client and our view of the case, and also stay within the bounds of the law. The judge is there to try and balance that out for them, and help them be even handed. But at the end of the day, the decision is left to a group of 6 or 9 or 12 humans who, usually, do the best they can.

[BoSoxGal]

I guess that means 'the best they can' for many jurors includes sleeping during presentation of evidence in a trial that determines a fellow human being's life/liberty.

And before anyone jokes about that sleeping being the result of poor lawyering, many of these were trials I've watched, not just trials I've been counsel at.

In fact, in at least 4 dozen trials I've observed or participated in, I've yet to see an entire jury bother to stay awake throughout the entirety of the trial. It's one thing to nod off during sidebars, but this is jurors sleeping during direct testimony. And I've never seen a judge call them on it.

I've also had too many post-verdict conversations with jurors (this is allowed in Montana) to believe anymore that jurors do 'the best they can'. Some certainly do . . . and just like the rest of life, plenty of them don't give a shit for quality of work and just want to get home to the TV.

[datsunaholic]

I dunno. $10 a day and a bus pass in exchange for losing at least a days wages may be part of the apathy.

I've never served on a jury. Was called to jury duty once. Sat there for 3 days before going through Voir Dire, was 29th out of 35 possible jurors and they picked the jury out of the 1st 15 people. After that, was done. I know people who get called at least every year for jury duty. I've been called ONCE. My Mom got 4 summons in 5 years, she mentioned that and they said Oh! You shouldn't have gotten any for at least 2 years!

The Voir Dire was kind of odd, I thought. The defense lawyer (a public defender) asked the pool if they thought they could remain impartial even if he called no witnesses or did any cross examinations. Stated that his job was to ensure the defendant got a fair trial. While I realize the onus is on the prosecution to prove their case, I find it awful hard to come up with reasonable doubt if the prosecution is the only one to present any evidence.

I looked up the case a few weeks later- it was a 1-day trial with a guilty verdict. (it was a criminal trespass and theft case).

[Crackpot]

The defense lawyer (a public defender) asked the pool if they thought they could remain impartial even if he called no witnesses or did any cross examinations. Stated that his job was to ensure the defendant got a fair trial.

I would have said "Yes, but, that doesn't speak very highly of your estimation of the prosecution "

[Sue U]

The defense lawyer (a public defender) asked the pool if they thought they could remain impartial even if he called no witnesses or did any cross examinations. Stated that his job was to ensure the defendant got a fair trial.

I would have said "Yes, but, that doesn't speak very highly of your estimation of the prosecution "

Sometimes that's all you've got.

[BoSoxGal]

Here’s a good read (based on a real case) which contemplates the profound flaws in our criminal injustice system, with some particular attention to the flawed jury system.

https://mobile.nytimes.com/2011/07/08/b ... manso.html

[ex-khobar Andy]

Thanks BSG - an interesting read.

[Burning Petard]

Now the jury will start deliberations all over again with a new alternate juror in place on Monday.

http://www.rollcall.com/menendez-jury-will-start/

snailgate

[Jarlaxle]

Never been called...I cannot imagine any lawyer ever putting a nasty, misanthropic asshole like me on a jury. After my mother's year-plus saga, I will do whatever I must to not be on a jury, up to and including moving.

[dales]

In regards to jury duty..........

Several years ago I was selected for jury duty for a double homicide in Contra Costa County.

I really wanted to serve.

At the time I was having sleep problems and arrived at the trial about an hour late.

I was summarily dismissed.

Never been called back.

[dales]

Never been called...I cannot imagine any lawyer ever putting a nasty, misanthropic asshole like me on a jury. After my mother's year-plus saga, I will do whatever I must to not be on a jury, up to and including moving.

You can get out of JD easy enough.

Don't show up and tell them to pound sand.

[BoSoxGal]

Never been called...I cannot imagine any lawyer ever putting a nasty, misanthropic asshole like me on a jury. After my mother's year-plus saga, I will do whatever I must to not be on a jury, up to and including moving.

You can get out of JD easy enough.

Don't show up and tell them to pound sand.

Some judges will toss you in jail for that.

[RayThom]

I always claim to have neuropathy and osteoarthritis and my leg cannot remain "immobile" for more than 30 minutes at a time. Then I back it up with years of questionable medical documentation. The Courts buy it every time.

Airlines give me aisle or bulkhead seating for the same reasons.

[Jarlaxle]

If I get called, I figure I need to bring something to read while I wait. This tops the list: