Below, you’ll find an example of how I use the Zehr Principles to get the jurors to think about what it means to have a fair trial. The aim is to gently use the Socratic Method to kindle independent thought.
Note that much of what takes place is a dialogue, not only between me and the juror, but also between the jurors. If one juror says something that I think will help the conversation, I’ll ask another juror whether they agree with it.
Also, I never lead. There’s no point. The juror will simply agree with me. Instead, I ask open-ended questions that are designed to guide the jurors to the conclusions that I’m hoping they will draw.
Finally, as I’m sure you remember from law school, the Socratic Method can be a little uncomfortable. That’s why I stress that you must be a gentle Socrates. Many of these people have never thought about these ideas before. They might discover that they don’t even have ideas about the criminal justice system, and they might be ashamed of that. The purpose is not to embarrass them, it’s to get them to consider the possibility that whatever ideas that they do have with regard to the trustworthiness of the police and the government might be wrong. The Socratic Method is the best tool for getting that to happen, but recognize that it’s also a very powerful tool. Overuse it and you’ll poison that juror against you. Remember: Educate, don’t alienate.
Here we go:
Q: Mr. Smith, I’m going to start with you. Good morning.
Juror Smith: Good morning.
Q. Judge Teasdale asked you if you agreed with the principle that James is presumed innocent. Do you remember that?
Juror Smith: Yes.
Q. And you said that you did?
Juror Smith: Yes.
Q. Tell me. Do you think that’s a good idea, that people who are in James’ position are presumed innocent?
Juror Smith: Yes.
Q. Why?
Juror Smith: Well. That’s just the way our system does it.
[This is a non-answer, suggesting that Juror Smith doesn’t really understand the principles.]
Q. Yes, but why? Well, let me put it this way: do you think it would be a better system if we presumed people guilty?
Juror Smith: No.
Q. What do you think might happen if we had that kind of system?
Juror Smith: Well, I think that’s not our system. People should be presumed innocent.
[Another non-answer. Smith is a dud. I may have to use a peremptory on him. Let’s see if I can find a juror who might actually be able to articulate why we have a presumption of innocence. Namely, it’s a safeguard against the conviction of the innocent.]
Q. All right. Ms. Baker, what do you think? Do you agree with Mr. Smith that we have a good system?
Juror Baker: Yes, I do.
Q. Why?
Juror Baker: Well, I think if they’re going to say that somebody did something, they should have to prove it, that’s all.
Q. Let me ask you: what do you think might happen if we had a system where people were presumed to be guilty? Is there a risk associated with that?
Juror Baker: Sure, I think that some people who didn’t do anything might be found guilty.
[Finally!]
Q. Is that acceptable? To find someone guilty if they didn’t do anything?
Juror Baker: No. Of course not.
[Go Ms. Baker! Now let’s try to get some of these other to agree with her.]
Q. Ms. Rankin? Is that acceptable?
Juror Rankin: No.
Q. Mr. Weiss?
Juror Weiss: No. Absolutely not.
Q. Mr. Weiss, do you think it should be easy for someone to be convicted of a crime?
Juror Weiss: How do you mean?
Q. Well, do you think this a serious case?
Juror Weiss: Yes. Of course.
Q. If you’re selected to be on this jury, do you promise to take your job seriously?
Juror Weiss: Certainly.
Q. Well, do you recognize then that, while you’re not to consider sentencing or punishment or anything like that, being convicted of a crime is a big deal?
Juror Weiss: Yes.
Q. Judge Teasdale told you that the burden of proof in this case is proof beyond a reasonable doubt. Do you remember that?
[Transition to another Principle: the burden of proof.]
Juror Weiss: Yes.
Q. That’s the highest burden known to law. Did you know that?
[Some jurisdictions don’t let lawyers define reasonable doubt, but this seems okay.]Juror Weiss: No.
Q. Mr. Simmons, I think you said you had served on a jury before?
Juror Simmons: That’s correct.
Q. That was a civil jury?
Juror Simmons: I believe so. Yes.
Q. You understand that the burden of proof in that case was a preponderance of the evidence – a lower burden than what exists in this case?
Juror Simmons: Yes. I think so.
Q. In other words, it was easier for the plaintiff to prove that case, than it will be for the prosecution to prove this one.
[This might draw an objection.]
Prosecution. Objection, judge.
The Court. Sustained.
[No problem. Let me try it another way.]
Q. Well, let me ask you this: do you think it should be easy for the prosecution to prove someone guilty?
Prosecution. Objection.
The Court. Overruled.
[Cool.]
Juror Simmons: No.
Q. Why not?
Juror Simmons: Well, I think it’s important that, before we convict someone, we’re certain that he committed the crime.
Q. And, if you’re selected as a juror in this case, do you promise to hold the state to that burden of proof beyond a reasonable doubt throughout their case?
Juror Simmons: Yes. I do.
[I like this idea of not wanting innocent people to be convicted. I want all the jurors to worry about that. I’m going to pass this question around a bit, but I don’t want to wear out my welcome. Let me just go around the room again to make sure that they know that I want them to take this seriously.]
Q. Mr. Weiss. Will you?
Juror Weiss: Yes.
Q. Ms. Baker?
Juror Baker: Yes.
Q. I also want to take a moment to talk to you about something else Judge Teasdale mentioned. She said that, should I advise James not to testify, you can’t hold that against him. Mr. Schumacher, I haven’t spoken with you yet. What do you think about that?
[I wouldn’t even go here if I expect my client to testify. If I think that he will, I don’t mention it. (Of course, I try to make this determination before trial, but sometimes your client wants it to be a game time decision.)]
Juror Schumacher: Honestly?
Q. Yes. Of course.
Juror Schumacher: I would hold it against him.
[This is not a problem. Sometimes a bad juror is a blessing. Based on this answer, you already know that you’re going to excuse him, but don’t do so just yet. Instead, use him as a foil for the other jurors.]
Q. Okay. Why?
Juror Schumacher: Well, I just think that if someone was really innocent, they would get up here and say so, is all.
Q. Okay. Well, you’re right. One reason a person may not choose to testify is because they’re guilty. You’re right about that. But, can you think of some other, innocent, reason why they might choose not to do that?
Juror Schumacher: No. I really can’t. I’m just being honest with you.
[Okay, that’s enough bad stuff. Now I need someone to disagree. How about trusty Ms. Baker?]Q. And I appreciate that honesty. I really do. Ms. Baker, can you think of a reason?
Juror Baker: Well, they might be afraid, I suppose.
[Yes!]
Q. Yeah. I mean, do you think it’s easy to testify? To get up here and take the stand?
Juror Baker: No. I’m sure that it isn’t.
Q. Mr. Weiss, do you?
[Let’s try to spread around Ms. Baker’s good answer.]
Juror Weiss: No.
Q. If James decides not to take the stand, the law prevents me from telling you why – whether it’s because he has a stutter, or whether it’s because he’s guilty. Do you understand that?
Juror Weiss: Yes.
Q. And, knowing that, do you think you can still listen to this case and give him a fair trial?
Juror Weiss: Yes. I think so.
Q. Mr. Schumacher?
Juror Schumacher: I’ll try, but it’s going to be a problem for me. I’m just being honest.
[And I do appreciate his honesty. Now you you that he’s not a great juror for you. Never scold a juror for being truthful. That’s all you can ask.]
Q. I appreciate that. I do. Finally, ladies and gentlemen, I want to talk to you about one further thing …