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- in Courtroom Trial Practice
- by Stephen Gustitis
Empowering jurors is key to success in trial work and key to a hung jury. The real art of empowering jurors probably developed in death penalty defense work where jurors were trained to hold to their “life” vote at punishment, resulting in a hung jury. A capital hung jury on punishment would then result in an automatic life sentence. However, jurors must be trained “how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in.” Trial lawyers must “help them rehearse in their minds how they’ll do it, if they need to.” But there is much more to empowering jurors to hold on.
Certainly, individual jurors must be taught during voir dire that their vote is important. Their vote, whatever it may be, can be based upon any fact or factors important to them. That the verdict of the jury is not one verdict but 12 individual verdicts, which are based upon individual judgment and reflection.
However, another key component of training jurors to stand firm is to commit other jurors – the jurors in the majority – to respect the vote of someone else. And not only respect the vote of a holdout, but to teach stronger jurors to actually protect the vote of someone who has an idea different from theirs. Roughly, the voir dire goes something like this:
Lawyer: Mr. Potential Holdout, you of course, believe the verdict of the jury is not one verdict, but twelve individual verdicts. [Yes, I do.]
Lawyer: Based on the jury instructions given by the judge, the law will demand each juror not violate their individual judgment and conscience just to reach a verdict. Do you believe your vote is important and deserving respect from other jurors, even if you are only one of twelve? [Yes, of course.]
Lawyer: Thank you. Now, Ms. Strong Majority Juror. You certainly believe each member of the jury deserves respect? [Yes, of course I do.]
Lawyer: You certainly believe their vote, even if different from yours, deserves respect and even protection from other jurors who might want to bully the holdout into a verdict? [Yes, absolutely.]
Lawyer: Then, can I count on you to protect the vote of a fellow juror even if you do not agree with it? [Yes sir, you can.]
Getting twelve people to openly committed to these ideas is a recipe for a hung jury. Although the criminal defense lawyer still needs some facts to hang their hat on, the idea of empowering jurors to stand firm is a great strategy in the appropriate case, especially here in Bryan|College Station where the influence of Texas A&M University creates a richly diverse pool of potential jurors. Regretfully, many College Station criminal defense lawyers fail to empower the jury and fail to condition them to respect and protect the vote of a hold-out.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.