ARIZONA JURY RESEARCH



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POST-TRIAL JUROR INTERVIEWS

An Overlooked Gem

By Jan Mills Spaeth, Ph.D.,

Advanced Jury Research

This article was published in THE WRIT, the official publication of the Pima County Bar Association, in June, 1994.

I recently returned from the American Society of Trial Consultants' convention, held this year in Portland. As usual, I departed with a wealth of information. Also, an important reminder; post trial juror interviews. Until several years ago, I conducted post trial juror interviews with some regularity. Somehow, with the demands of pre-trial work, these interviews found their way to the "back burner".

Bias Study

Fortunately, a friend and colleague of mine, Dr. Lin Lilley, gave an excellent presentation at the convention on post trial juror interviews, prompting me to restore these to their original high standing. I realized that if I am overlooking these, chances are good attorneys are as well. With Dr. Lilley's gracious permission, some of her findings will be reported in this article, which I will then apply to possible juror misconduct in Arizona.

President of Southwest Trial Consulting Inc., based in Albuquerque, Dr. Lilley has done extensive work with post trial juror interviews. She recently compiled results of 397 juror interviews, involving fifty-five trials, largely from the southwest. The majority of jurors resided in New Mexico and Texas, but feedback came from jurors in Arizona, California, Utah and Colorado as well.

Dr. Lilley's main purpose for these post trial juror interviews was educational. From them, she wanted to know what jurors failed to understand, what they did comprehend, their impressions of witnesses and attorneys, and issues they deemed important. Dr. Lilley was also looking for previously undisclosed bias in the panel. Three of her questions, in particular, elicited eye-opening responses.

"During jury selection, do you think attorneys failed to learn something important about you or another juror?" An overwhelming response of 87% said "yes". The question, "Did you serve with someone who possibly should have been excluded from the jury because of personal bias?" elicited a "yes" from 73% of the jurors, and "no" from only 27%. Finally, the query, "Did the attitude of these jurors (whom you feel were biased) affect the jury's verdict in any way?" resulted in 32% responding positively. This is almost one-third of the jurors.

In Dr Lilley's study, jurors also admitted that they did not feel free to volunteer information. This naturally limits candid voir dire responses. Jurors informed Dr. Lilley that they had trouble following some of the questions as well. Thus, their answers may have been inaccurate, incomplete, or withheld. Jurors also informed Dr. Lilley that attorneys did not ask the right questions to elicit bias.

How can this information help attorneys in Southern Arizona? According to Dr. Lilley, she found jurors in different states to be quite uniform in their comments and complaints. Thus, the information she provided can be generalized to our locale. If this is the case, her findings could point to the need for investigating possible juror misconduct, leading to potential motions for new trials.

Misconduct Investigations

In Arizona, evidence of misconduct can be obtained via routine post trial jury interviews. If evidence of misconduct is found, attorneys may challenge the validity of a verdict with the testimony or affidavit of any witness, including members of the jury. Misconduct can relate to the conduct of jurors, court officials, or third persons.

In Arizona criminal cases, what would constitute juror misconduct and grounds for motions for new trials? Arizona Rules of Criminal Procedure, 24.1(c)(3) give six reasons (effective 12-1-93):

i) Receiving evidence not properly admitted during the trial

ii) Deciding the verdict by lot

iii) Perjuring self or willfully failing to respond fully to a direct question posed during the voir dire examination

iv) Receiving a bribe or pledging a vote in any other way

v) Becoming intoxicated during the course of the deliberations

vi) Conversing before the verdict with any interested party about the outcome of the case

If post trial juror interviews reveal the existence of any of these six incidents, juror misconduct has occurred. Dr. Lilley's bias findings are important as they might point to a violation of iii. According to Rule 24.1(b), "Timeliness," criminal attorneys must file a motion for a new trial no later than ten days after the verdict has been rendered.

The Arizona Rules of Civil Procedure are not as specific in outlining jury misconduct, but Rule 59 does state that "Irregularity in the proceedings of the ...jury" (1), and "misconduct of the jury" (2) can result in a motion for a new trial. In addition, "the verdict that is the result of passion or prejudice" (7), may be vacated, with a new trial granted. Dr. Lilly's findings on bias could be applied to Rule 59(7). In civil cases, attorneys have only fifteen days after entry of the judgment to file a motion for a new trial. In both criminal and civil cases, prompt juror interviews are suggested if attorneys are looking for evidence of misconduct.

What if you learn of misconduct after the allotted time has passed? You may seek relief under a Rule 32 petition. To be safe, however, it is wise to raise the objection in a motion for a new trial.

Conducting Post Trial Juror Interviews

Is it necessary to speak with all jurors on a panel? No, especially if money is tight. To save costs and time, select two to three jurors, preferably the leaders, the “expressives”, and the ones who caused dissention. Speak first with the most talkative, open juror. Then inform the other jurors that you have spoken with at least one other panel member, and that you want to hear their viewpoints as well. Jurors will usually feel more comfortable talking if they feel others on their panel have done so.

In addition to the leaders, pick out an objective, analytical juror who will pepper feedback with realistic observations and frank perceptions. You may learn that a negative juror was worse than perceived, stronger and more influential. Or, you may find out what you did badly. This is a hard but effective way to learn. It is also a good idea to speak first with an alternate. First, these jurors are deprived of deliberation, so may be eager to talk. Among other things, alternates can tell you about witnesses, juror reactions to these, jurors' reactions to attorneys, and interaction between the jurors. Also, interviewing alternates is a “trial run,” (no pun intended!) helping to determine what questions to ask of the real panel.

If post trial interviewers were in the courtrooms during voir dire, they will want to identify themselves, triggering the jurors' recollections. Jurors are friendlier and open when talking to someone they "know" or recall, provided a hostile atmosphere has not permeated relations between counsel/client and the panel. If this is the case, it is best for jurors to perceive the interviewers as objective and uninvolved in trial proceedings.

What do interviewers need to do a thorough job? First, a copy of the actual jury verdict. Second, all the information attorneys have on the jurors. Next, a list of all witnesses in the order they testified, along with their physical descriptions, areas of expertise, and main testimony points. (Jurors will often say, "You know, that big guy with the beard who talked about guns".) Also desired are a list of important exhibits offered by both sides, jury instructions, and the argument themes and images of both sides. Lastly, interviewers should be aware of attorney concerns involving witnesses, closing arguments, jargon, exhibits, and so forth. This allows interviewers to be especially sensitive to these concerns, and to probe for insightful information regarding them.

Studies have shown that experienced, skillful interviewers elicit more information from jurors than do those with relatively little interviewing experience. Attorneys will want to keep this in mind. It is also essential to have carefully planned and tested lists of questions as opposed to "ad libbing" sessions.

Summary

In summary, post trial juror interviews do for attorneys, after trial, what focus groups and mock trials do for them prior to trial. They provide information on what jurors did and did not comprehend, what issues were important to them and why, what witnesses impressed them and why, attitudes toward clients, feedback on attorney presentations, and keen insight on the workings of group dynamics. In addition, these interviews provide invaluable data for future jury selections. Lastly, they may reveal evidence of misconduct.

Because post trial juror interviews can be conducted for relatively low costs, especially if only two or three jurors are polled per panel, at the very least, they quickly pay for themselves in wiser, more perceptive approaches for upcoming cases. At the most, they may result in misconduct findings, warranting motions for a new trial.

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