The Jury Is Out: Understanding The Pitfalls And What You And Your Attorney Can Do About It

Posted on: 13 June 2016

If you have been charged with a crime you didn't commit, you may assume that hiring a good criminal defense attorney is all that is needed to clear your name. You may further think that a jury trial is the best solution because the jury works together to uncover the facts and makes a decision about your guilt based on those facts. You may be surprised to learn that it isn't that simple. There are several stumbling blocks that may prohibit the jury from finding you not guilty even if you are. Knowing what to expect from the jury and working with your attorney help it avoid common pitfalls is important to winning your case in court.

What is "beyond a reasonable doubt"?

In a criminal case, the prosecutor must prove you are guilty "beyond a reasonable doubt". This means that nearly anyone who hears the evidence would agree that you are guilty and would not have any reasonable doubts about your guilt.

But when it comes time for the jury to deliberate, the members must come to an agreement of what constitutes a reasonable doubt. Surprisingly, there can be considerable disagreement in this regard. Sometimes, jury members each rely on their own definition of reasonable doubt or on their own gut feelings.  Your attorney can introduce his definition of reasonable doubt during the trial to give jurors a basis when it comes time to deliberate.

Does the prosecutor need to provide a "preponderance of evidence" that you are guilty?

No. A preponderance of evidence is not required in a criminal case. It is used in lower courts and civil cases. A preponderance of the evidence means that one side provided the most evidence suggesting the guilt or innocence of the defendant. Your attorney can remind the jury of the difference between a preponderance of the evidence and the presentation of the truth.

Does the prosecutor need to provide "clear and convincing evidence"?

Ideally, the evidence presented in court is clear and convincing, but "clear and convincing evidence" is a term used in civil cases, too. It means the evidence provided has a high probability of being true or accurate. In a criminal trial the probability of something being true is not enough to find you guilty.

Does the jury have notes and records to review during deliberation?

Many are surprised to learn that in many instances jury members are instructed to rely on memory when they consider the facts of the case. According to a 2007 study of the National Center for States Courts, 29% of the federal courts and 31% of the state courts did not allow jurors to take notes during the trial or use notes during deliberation. The reasoning behind prohibiting note taking ranges from the belief that jurors would be distracted if they were taking notes to thinking people with inadequate note-taking or writing skills would be at a disadvantage if note-taking was part of the responsibility of all jurors.

Why is relying on memory a problem?

There are several possible pitfalls when it comes to jurors relying on memory.  While the judicial system recognizes that human memory is not infallible, it relies on the collective memory of the jurors to ferret out what actually transpired in court. But, sometimes the collective memory fails. Consider the reasons relying on memory can lead a jury astray.

  • Statements made by one jury member during deliberations can change the memory of another member. This happens when the speaker introduces new erroneous information or omits factual information. This may be more common if the person speaking is viewed as having superior intelligence or holds a prestigious position in society. Other juror members may then remember these statements as fact instead of the statements made in court.
  • Evidence introduced in court and later ruled inadmissible may be remembered as allowable evidence.
  • Misunderstanding or mishearing statements or testimony in court may affect the jurors' understanding and memory of the facts.

Your criminal defense attorney can help avoid these obvious pitfalls by clarifying the responsibility of the jury and by presenting evidence of your innocence or refuting the prosecutor's evidence of your guilt with clear, concise language. He will work to create a positive attitude and present you in a positive light. His closing statements will include the important facts that prove your innocence and a reminder to the jury of its responsibilities.

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