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Everyone Follows Instructions, Right?

Jun 30, 2011
By .
Law

Earlier today, Doug Mataconis got frustrated with the Casey Anthony trial analysis on CNN. This is understandable since most TV trial analysis is bad – wrong and dangerous, even. This time, though, I couldn't see what was wrong at all. Here was his tweet:

This was, to him, a head-slapping bit of analysis because, as he tweeted when I wondered what was surprising about the talking head's analysis, the Constitution says, and the jury instructions will make clear, that "no conclusion is to be drawn from someone exercising their rights." When pressed on whether that would really keep juries from drawing their own conclusions, Doug got all philosophical on me and replied "One never knows what a jury thinks, of course".

But are juries really that inscrutable? Are people really that unpredictable? No, I don't think so. I don't care what the law is, I don't care what the jury instructions are, I don't care how it works on TV shows, when a person doesn't testify in their own defense, the jury wonders what they are hiding. Aside from viscerally knowing that this is true, I've served on a jury. While most of what I learned on jury duty isn't germane to this post, the one thing I learned with absolute certainty is that if a juror is aware that a party is keeping information from them, she is going to assume that it isn't helpful to that party's case. And when the judge gives a stern look and says "The jury will disregard counsel's question…" what the juror thinks is "But I want to hear the answer to that question!"

And if that's how the jury reacts to an individual question in a whiplash case, how do you think they react to a trial where one witness after another comes up and calls the defendant a murderer and she doesn't even respond?

This does not mean that the defendant should always testify; in fact, I think the standard belief is similar to keep the defendant off the stand. As bad as it looks to have the defendant say nothing in their own defense, there are worse things than having the jury think "hey, why didn't she speak." There's a saying in football about the forward pass: "There are three things that can happen and two of them are bad." While it is possible that the jury may decide that your client doesn't sound like a murderer, as soon as the cross-examination starts a lot can go wrong in a hurry. The testimony may open the door to the admission of inculpatory evidence that had been previously precluded or the client may come off like a lying asshole to name two big risks.

So what we have is a delicate balance: is the definite, but semi-quantifiable harm from not testifying worse than the possible, but impossible-to-quantify harm that can come from a bad cross-examination? The ability to weigh these options correctly is why good trial lawyers get paid the big bucks.

I don't think there is a single lawyer who would tell you that no balancing is required. Juries aren't that unknowable.

Last 5 posts by Charles

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6 Comments

  1. Ken  •  Jun 30, 2011 @8:06 pm

    Charles, I share your legal realist assessment that jurors do care. But I share Doug's distaste with talking heads – purportedly qualified to talk about legal matters — asking such questions without simultaneously making it clear that defendants have the right not to testify and that it can't be used against him. The media promoting legal ignorance is sad and obnoxious. The circus-like approach to criminal law tends to obscure, and degrade, important rights.

  2. marco73  •  Jul 1, 2011 @6:10 am

    I won't comment on the Anthony trial, because the overload from the media is stomach churning.
    As to what a jury thinks, I have had the opportunity to serve on a jury. The defendant in a DUI case did not testify. During deliberations, several jurors did mention that the defendant didn't testify. As foreman I merely reminded the jurors that we could only consider the testimony presented in the courtroom.
    Left with only police testimony and the video tape of the field sobriety test, we voted to acquit.
    I've thought about the trial from time to time. I have to believe that the defense attorney made a smart call in not having his client testify. The police testimony wasn't very convincing. The field sobriety tests were, to laymen at least, not very evident of any impairment. At the time, drivers could refuse breath and blood tests, although the driver's license would be suspended for a year. Left with so little to go on, there just wasn't enough to convict.
    If the defendant had testified, I don't know that anything he would say would have helped his case. But he certainly could have opened up avenues to hurt his case.

  3. Jack Marshall  •  Jul 1, 2011 @6:49 am

    You'll get a lot of criticism for the post, Charles, but of course you are right.

    The right to avoid self-incrimination is not the same as a right not to look guilty as hell. When a witness takes the 5th, a jury cannot be effectively forced to not make the obvious and unavoidable calculation that there is something related to the question that the witness doesn't want to discuss because it involves legal consequences. You don't refuse to incriminate yourself if you did nothing that could be construed as criminal. Yet as with not testifying, a jury is instructed that taking the 5th can't be considered in assessing credibility or guilt. The instruction is necessary. That doesn't mean that it changes much.

    The fact is that the Constitutional guarantee against self-incrimination is a often false guarantee as applied to individual judgments. The law "solves" the problem by insisting that no one "shall" regard refusal to testify as a factor in determining guilt, but as you say, that assertion defies logic, human nature and common sense. Not testifying, refusing to answer questions, are too significant factors to ignore, and saying they must have no significance doesn't make it so in reality. Sometimes, as in Marco's case, a jury will be able to over-ride the implications of it, and that is a victory for the guarantee—at least the inherent self-incrimination of not testifying isn't dispositive in such a case.

    But a jury will come to some conclusions when a defendant doesn't testify, and while those conclusions are Constitutionally forbidden, they are also often reasonable and unavoidable.

  4. Charles  •  Jul 5, 2011 @11:40 am

    Breaking: If it hurt, it didn't hurt much.

  5. Grandy  •  Jul 5, 2011 @12:59 pm

    Watching random reactions to the verdict online is so fascinating. What I basically want to do is take each and every one of observing outraged and dump them onto my private island where we play "The Most Dangerous Game, Except More Dangerous". It's more dangerous because instead of stacked-deck human hunters hunting humans, it's engineered cyborg velociraptors hunting humans. The humans do not have phased-plasma rifles. They do not have explosives. Math won't save them (but it could).

    I kind of already wanted to do this, because I am a horrible person. But now I want to do it for different reasons. Can't speak generally here, but I wonder how many of the dipshits raging at this outcome are at all cognizant of the problems our entire legal system faces, from the enforcement to the imprisonment? How many of these people mail in their votes to a party line candidate who is going to feed back into them the bullshit they want to hear and then stand in the way of necessary reform? The answer is more than 1 but I wouldn't want to speculate outside of that.

    The Anthony trial isn't even a drop in the ocean next to the problems the drug war has created in our society. It's certainly nothing next to the perverse relationship voters and politicians enjoy on the subject of crime & punishment. And that's true even though (1) the situation is tragic and (2) the trial may (or may not) represent an injustice (I haven't followed it closely enough to know).

  6. Patrick  •  Jul 5, 2011 @2:36 pm

    As it turns out, jurors do follow instructions. Sometimes.

    My favorite media quote, so far:

    Casey Anthony did not take the stand during the trail [sic], leaving her claim as to how Caylee died unsubstantiated.

    Her claim was that the prosecution, and CBS, CNN, and the like hadn't proved her guilt beyond a reasonable doubt. Fuck 'em, and God bless America.