Judges always tell juries to use their common sense and experience in evaluating the evidence in a trial, but this former juror is puzzled—as usual. What is the legalese definition of “use common sense and experience” ? After all, the judge also tells jurors to decide what’s true and what’s not based only on what they learn in the courtroom. (The context of the Dossett-Leath trial, for instance, is supposed to be off limits to the jury.)

In the Dossett-Leath trial something bizarre was brought out in court, which runs contrary to my common sense and experience: a missing will. How is a juror to deal with puzzling legal matters like this that arise in a trial?

The will in question is that of the victim David Leath. As Jim Balloch of www.knoxnews.com explained in an article last year, Mr. Leath wrote a will about 7 or 8 years ago in which he left all his property to his wife. Then, shortly before his death he visited the attorney who prepared the will and expressed concerns about it, namely, that it did not bequeath anything to his daughter by his first marriage or her child. After Mr. Leath’s death, his personal copy of the will could not be found (although presumably the attorney had a certified copy on file). So, the daughter sued, and a year ago an appeals court found for the daughter, thus awarding half of Mr. Leath’s estate to her. The ruling was based on a common-law assumption that a missing will is considered to be nonexistent and voided.

If I were a juror in the murder trial, I would be baffled, for several reasons.

1) Tennessee is like the state in which I live—a joint property state. As a citizen, I understand this to mean that a married couple jointly owns all property UNLESS a legal agreement to the contrary exists between the parties. If someone dies intestate (as Mr. Leath was judged ultimately to have been), all the jointly owned property goes to the surviving spouse. So, why was the Leath estate divided?

2) Why should a missing copy of a will be a problem, even if it was the only copy of the will? Let’s say the lawyer who wrote it did not keep a copy: having discussed the terms of the will with the deceased only a few weeks earlier, this juror would expect a probate court to take his word for what the general terms were. Besides, the will did nothing but reinforce the “default” method of inheritance in Tennessee.

3) Even more bizarre is the fact that the appeals court essentially took away half of the inheritance due to Mr. Leath’s step-daughters, who are daughters of Mrs. Dossett-Leath’s first husband (not of Mr. Leath). How is this possible?

4) The prosecution in the murder trial claimed that the estate was the motive for the murder. In other words, the prosecution claims that Ms. Dossett-Leath murdered Mr. Leath for his property. So, as a juror, I would assume that the prosecution thinks the defendant expected to inherit the full estate, as a spouse in a joint property state and as a spouse explicitly named in the will. But the will disappeared?

So, as a juror who was deliberating in this case, one of the first questions I would have is, “What the heck is going on with the will?”

The missing will suggests to me that Ms. Dossett-Leath is the last person in Knox County, TN, who would have murdered Mr. Leath for his property. She certainly would not have stolen or destroyed the will: she would have known about the lawyer’s copy. Surely she would also have thought she would inherit even if Mr. Leath was intestate.

Here’s the kicker: when the lawyer drew up the will many years ago, the couple simultaneously voided pre-nuptial agreements that kept property from prior marriages separate from the joint estate.

OK, so all this came out in court, I think. That means the jury can legitimately discuss it. However, surely their common sense and experience tell them that something doesn’t make sense.

How does the justice system expect jurors to deal with contradictions like this?

Since something of this nature came up during deliberations when I was a juror, I suspect that a juror’s common sense and experience often conflict with the evidence presented in court.