“Us, and them
And after all we’re only ordinary men…
Up and down.
But in the end it’s only round and round.
Haven’t you heard it’s a battle of words
The poster bearer cried.
Listen son, said the man with the gun
There’s room for you inside.”
– Pink Floyd ‘Us and Them’ (Dark Side of the Moon)
JURIES AND THE “US VS. THEM” MENTALITY
In many jury cases, judges and other courtroom staff take great pains to attempt to prevent any prejudice against the defendant from slipping in. These small measures are often taken in good faith but do little to overcome basic presumptions of jurors sitting in judgment of the accused. Defendants are often dressed in button-down shirts or suits, seated with their lawyers as if they are part of the courtroom scenery. But from the moment the jurors “meet” the defendant, they are making constant decisions about his character, propensity for crime and whether he appears similar or different from them and their acquaintances.
Much of jury selection is based upon the admittedly inexact science of figuring out the characteristics of jurors who may be sympathetic or unsympathetic towards the accused. Defense attorneys want their clients to give the jurors a good first impression and maintain that impression throughout the trial. Defendants are instructed not to react to anything that happens in the courtroom and to appear respectful and remorseful. This duality is somewhat difficult to achieve, however. While jurors are more willing to be lenient and on the side of a Defendant who appears remorseful and freightened, truly innocent defendants may have a hard time accepting that lies are being told about them in open court, under oath, and to the jury who holds the key to their freedom.
“But if the State and police have gone through this much work to get the case put together, it’s pretty likely that they have the right person with the correct charge, right?”
Sadly, human nature shows this presumption to be wrong time and time again. Contrary to Law and Order and the contrived, innuendo-filled press conferences of police officials and prosecutors, the main charge of the justice system is not necessarily justice – it is efficiency.
PRESUMED INNOCENT UNTIL PROVEN GUILTY? THE “US-VERSUS-THEM” FALLACY
Illinois Pattern Jury Instruction 2.03: PRESUMPTION OF INNOCENCE – REASONABLE DOUBT – BURDEN OF PROOF GENERALLY “The Defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty. The State has the burden of provind the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.”
How can this possibly work? Can you truly reconcile this unbelievably important right with the fact that the prosecutor is accusing the defendant of heinous acts? Attorneys are not allowed to even suggest to juries that simply because someone has been charged of a crime and has exercised their right to a jury trial that there is even a minute possibility that it is more likely than not that the accused is guilty. But for many jurors, this is their first experience with the criminal justice system. The very first thing that they hear, after they are picked as jurors and seated for the trial, is what a horrible, illegal, disgusting thing the defendant sitting right in front of them has done. Next they hear the defense attorney’s opening statement, but they have already been primed to follow and understand the prosecution’s case.
Jurors are picked from the community, ostensibly. The jury pool is often taken from the voter rolls of the county or from those who have registered for a driver’s license. To some extent, there is a self-selection bias, however courts have somewhat wised-up to the excuses that people use to get out of jury duty. Sadly, every juror who thinks that he or she can game the system and get kicked off of the jury panel, or that it is below him or her to sit on a jury would have an absolutely different opinion if the roles were reversed. The public is not conditioned to think, “What if it was my family member who was accused of a crime?? What if it was me??” We have created a criminal justice system with a very strong “Us-Versus-Them” mentality. To some jurors, jury duty is a mere inconvenience to their otherwise important life. Those in the “Us” category have better things to do. Companies need to be run, emails returned, and the world needs them to keep it from falling off of its axis. Very few jurors are willing to identify with the “Them” category. In a juror’s mind, “they” are defendants. This is not a racial or cultural issue necessarily, but it cuts along racial and class lines. This mentality may not be intentional, but it is detrimental to defendants who are merely asking other citizens to take a short amount of time out of their lives to uphold the Constitution and give them a fair trial. How can jurors living in the “Us” mentality not identify with the victims of a crime?? After all, “they” are the ones victimizing “us” with their criminal behavior. “They” are the defendants in these cases not because of some deeply-rooted societal issues, but because “they” are different from “us.” This classist mentality creeps into anyone who sits in judgment of others. Jurors who have experienced problems with police and the criminal justice system are better able to see the problems inherent in the system and in jury cases, but jurors work as groups – and think as groups.
DEFENDANT’S TESTIMONY: A DANGEROUS SLIPPERLY SLOPE
Defense opening arguments are a relatively decent way to endear yourself to jurors, but at best they make suggestions and requests of the jury to see the holes in the case – to look further into the testimony than their prosecutorial counterpart would have them do. No case is ever as cut-and-dried as it seems when the prosecutor is standing accusing the defendant of doing something which disrupted society, possibly hurt someone, or did something else to offend legal sensibilities.
WHY DON’T JURIES GET TO HEAR ANY INFORMATION ABOUT THE DEFENDANT? IS IT REALLY FOR THE DEFENDANT’S PROTECTION? Throughout the testimony of prosecution and defense witnesses, the character of the defendant is absolutely a prohibited topic in most criminal trials. The reason: Courts say they don’t want jurors making decisions based upon emotion, their views of the defendant, or other information which is not admitted formally into evidence. Ironically, much of trial strategy is not simply focused on the facts of the case, but on how the jury will view the defendant and witnesses. One interesting example which comes to mind is the littany of rules about the defendant’s choice whether to testify. Jury instructions are explicitely clear that a defendant has absolutely no duty to prove his innocence or answer for any of his alleged actions as charged by the State.
One of the principles that some courts apply is prohibiting trials from devolving into a personal attack on the defendant instead of an unbiased examination of the testimony. Problems with testimony and witnesses are so numerous that I can’t even begin to address them now, however court rules and case law generally prohibits prosecutors from referring to prior bad acts of the defendant, personal affiliations, possible gang ties, and other things which may bias the jury against the defendant. This also, however, prevents the defense from presenting character information about the defendant – except in specific instances which aren’t always clear to those with law degrees.
“IF THE DEFENDANT IS INNOCENT, WHY WOULDN’T HE TESTIFY??”
Illinois Pattern Jury Instruction 2.04: “The fact that the defendant did not testify must not be considered by you in any way in arriving at your verdict.”
IF A DEFENDANT TESTIFIES…Many things can happen. First and foremost, the Defendant’s prior criminal background can be brought in to impeach him – or destroy his credibility. Jurors will hear if he has been convicted of any felonies within 10 years and what those felonies were. The theory being that someone who has been convicted of a felony is more likely to lie on the stand than one of “us” – the non-felons. This weighs hugely on a defense counsel’s decision to advise the defendant to testify – a choice which ultimately lies with the defendant. But few attorneys are going to willingly put their client on the stand only to have whatever he says overshadowed by the fact that he has prior convictions or, even worse, convictions for similar offenses to the one for which he is standing trial.
BUT JURIES WANT TO KNOW THE DEFENDANT’S STORY! This often plays itself out in police stations and squad cars when someone is first arrested. Regardless of their guilt or level of culpability, it is natural behavior to want to explain your side of the story. We want to set the record straight. The fact that the police tell defendants that “Anything they say can and will be used against them in court” is often taken for granted and greatly misunderstood. For arrestees, it is easy to believe that you can talk your way out of trouble. Unfortunately, every word you utter is going to be scrutinized up until the moment when the jury renders a verdict, and every time a defendant talks, a new can of worms is opened up. Yes, juries are not allowed to use the defendant’s silence or choice not to testify (formerly known as his “failure to tesify” until the courts wised up, at least in Illinois) against him. How is this possible?? There is no good balance. Even when a defendant does take the stand and is believable in his testimony, the prosecution will attack that defendant with all of the visciousness that the might of the State allows. A defendant telling the “whole truth” may sound like he is equivocating or forgetting important details when matched against a seasoned trial attorney. Defendants, like all witnesses, are subject to the same psychological issues – fading memory over time, the power of suggestion by attorneys and the pressure of testifying. Attorneys must constantly decide if the potential benefits outweigh the costs. Most of the time, putting a defendant on the stand is far riskier than allowing the jury to guess why he isn’t testifying. And often, nobody wins and the truth never wins out…
Like it or not, the criminal justice system in the United States is broken. It is not the best one out there, and it is far from the best one we can come up with. Entrenched ideology about how justice should be disseminated is slow to change. Some of the most serious changes come only with generational change and replacement of the old guard with fresh minds willing to take action to fight the system instead of just surviving it.
THE TAKEAWAY FOR TRIAL ATTORNEYS: AS A DEFENDANT (AND BY PROXY, A DEFENSE ATTORNEY), YOU ARE DAMNED IF YOU DO AND DAMNED IF YOU DON’T. THE “PRESUMPTION OF INNOCENCE” YOU ENJOY AT THE BEGINNING OF A CASE COMES IMMEDIATELY UNDER ATTACK WHEN THE JURORS SEE YOU AS BEING ON THE OTHER SIDE OF SOCIETY- AS BELONGING TO “THEM” INSTEAD OF “US.” ASKING CITIZENS TO SIT IN JUDGMENT OF OTHERS IS AN IMPORTANT PART OF OUR LEGAL SYSTEM, BUT THE JURY SYSTEM PROBLEMATICALLY ASKS THAT PEOPLE IGNORE INSTINCTUAL, OFTEN SUBCONSCIOUS AND LITTLE-UNDERSTOOD BIASES WHICH HAVE HUGE AND LONG-TERM EFFECTS ON THE JUDGED.
United State’s Constitution: Amendment VI – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State [ ] and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
All views are that of Jonathan S. Goldman and do not represent those of the Law Office of Jonathan S. Goldman, its affiliates or partners. Jonathan Goldman is a criminal defense attorney in Chicago and works with those convicted of crimes in the past to clear their criminal records through expungement, sealing and executive clemency. See www.AffordableDefenseLaw.com for more information.