This is not an article about “jury nullification.” This is an article about why jurors feel conflicted regardless of how they vote.

On “Best Defense” (TruTV) legal commentator Jamie Floyd expressed an opinion that the Spector guilty verdict was likely to be overturned on appeal, because she feels that Judge Larry Fidler erred in permitting the so-called “prior bad acts” witnesses to testify against Spector. Apparently California law permits such evidence only in circumscribed situations, among which Ms. Floyd feels these “prior bad acts” did not fall. I’m not a lawyer, so I can only take Ms. Floyd’s word for it. She usually knows what she’s talking about, and I usually agree with her when it comes to the matter of “reasonable doubt.”

I’m not sure I do agree with her, though, about the issue of “prior bad acts.” I’m going to have to do a little research and a lot of thinking about this. As far as I now know, this is a rule of evidence that applies in only a few states, such as California. I also believe this rule resulted from legislation rather than case law—and it was the citizens who demanded such a rule so that certain types of repeat offenders who always manage to evade indictment could eventually be called to answer for their crimes.

But in general I do question many of the rules of evidence. And I do agree with Ms. Floyd that some rules of evidence serve only the purposes of the prosecution, not the purposes of a jury seeking the truth.

Some time ago (2000 I think) I was summoned to jury duty in Chicago’s Daley Center (civil trial court). While my panel was called into a courtroom, ultimately I was not selected for the jury. But I was able to watch the voir dire, during which one prospective juror made a speech against “the adversarial system of justice” in which—according to him—all parties, including the judge, conceal the truth from the jury. He said he was deeply offended by the way judges prohibit certain facts from being entered into evidence. He did not want to participate in that sort of “travesty of justice.”

As I sat there, I could not understand why this potential juror was so vehement, or why he felt that by refusing to serve on a jury he was furthering the cause of justice. I thought he was naive at best. Despite this, I found myself agreeing with him about the adversarial system. As a high-school debater I learned to spin facts for both sides in an argument, just as lawyers must. I also knew that many relevant facts are kept from juries. Just look at the O.J. Simpson murder trial: anyone who followed it knew a great deal more about the crime than any of the jurors did.

Now, after serving on a jury, I can’t help but wonder if this prospective juror might have served on a jury before and simply couldn’t stand to do it again.

The judge presiding over the voir dire was appalled,  of course. A judge’s role in a jury trial is to filter evidence, witnesses, and testimony through a sieve of hundreds of years of “Common Law” rules concerning what is “admissible” and what is “inadmissible.”

Jurors don’t often know the rules of evidence. Jurors usually are not lawyers. Jurors expect to hear all the facts, they swear to listen objectively to two sides of an argument, and then they hope to discern the truth and be able to reach a correct binary, either-or verdict.

After serving on a jury, I now doubt whether many jurors ever feel they did reach the “correct verdict.” I suspect most feel a little like that angry prospective juror in the Daley Center. I’m certain few jurors reach a verdict without feeling they were not presented with all the facts. Most jurors must feel as if “there’s something they’re not telling us”—and they are right. They feel they reached the only verdict they could stomach at the time.

For example, the judge in 2000 told the jury panel that the case was a civil suit in which a plaintiff (a man) was suing a defendant (a woman) for damages from whiplash in a car accident. In fact it was a suit between two auto-insurance companies. This was one of the facts the lawyers and judge were trying to withhold from the jury. The angry prospective juror knew it. I knew it. And at least one other prospective juror must have known it, because she was a jury consultant with a law degree (and most jury consultants work on civil lawsuits).

If I could speak at length with a judge or a law professor (for that matter)—someone who daily shapes the way lawyers think about the law—I would ask him (or her) to think more than twice about the way the rules of evidence have evolved over the past three centuries. The way facts are kept from juries is a serious barrier to good decision-making.

Most jurors may think the rules that govern courtrooms and trials derive from the U.S. Constitution or Bill of Rights. But they don’t. They derive ultimately from British Common Law, which has subsequently been interpreted through U.S. case law—in other words, interpreted by judges.

Take the issue of hearsay evidence, for example. As a general rule, hearsay (what one person heard another person say) is not admissible—with good reason. It has nothing to do with the truth. Even an honest witness may mishear a statement, may misremember a statement, or may have heard the statement out of context—or understood it incorrectly in context. And a dishonest witness may lie.

Over time, however, Common Law and case law have permitted a certain type of hearsay into American courtrooms, namely, what one person heard the defendant say.

The rationale for this seems to be that such hearsay “is not presented for the truth of the matter” but rather to “show the defendant’s state of mind at the time.” In the first Spector trial, one witness, for example, claimed years earlier to have heard Spector say something to the effect that all women deserved a bullet in the head.

Where is the truth or logic in that? If what person B says he/she heard person A say cannot be presented in court for the “truth” of the substance of what person A said, then why is it permitted when person A is the defendant? Think of the trial of Melanie McGuire in which a former lover repeated many of her statements and another witness who loved her but whom she spurned did the same. Why should hearsay evidence given by a potential un-indicted co-conspirator be believed? Why should hearsay evidence of a spurned lover be believed?

I’ll tell you why: because at some point in the past three-hundred years some clever prosecutor convinced some dull-witted judge that justice would be well-served if incriminating statements by the defendant could be admitted into evidence. This clever prosecutor probably also pointed to the Common Law tradition of permitting “excited utterances” into evidence. An “excited utterance” is something a person says fairly soon after a crime has been committed during a state of shock or panic. The law assumes that in such a state a person cannot tell a lie. Where is the logic in that? (It’s a bit like a deathbed confession IMHO, which is assumed to be truthful because of religious fears of eternal damnation.)

Furthermore, the law seems to define “excited utterances” as inculpatory—never exculpatory. In other words, if (like murder defendant Joshua Rosa) you stumble across a body in a dark park and then run from the park and excitedly utter that you didn’t do it, then that statement need not be presented in a court of law as evidence of the truth.

Why, then, is hearsay admissible against a defendant? Supposedly because it “shows the defendant’s state of mind.” But who says anyone’s statements “show” their “state of mind”? You would have to be a mind-reader to say for certain that a person’s words always reflect what they are thinking. That’s where the “excited utterance” comes in: the law believes that an excited utterance must be true. But, of course, even a statement made in calm is admissible if it is uttered by the person the state has charged with a crime (and even though this person is “presumed innocent”).

In the trial of Hope Schreiner (2006), a hearsay confession was used against her. A neighbor claimed to have expressed fears to Ms. Schreiner that a murderer was running loose in the neighborhood. The neighbor claimed that Ms. Schreiner then told her not to worry; she had done it. (Think about this: you can’t be compelled to testify against yourself, and you’re presumed innocent, and you did not confess to an investigator, but nonetheless a neighbor can testify that you confessed to her when you were in a state of shock over the sight of your husband’s bloody body.)

Let’s speculate about this situation. There are many possible innocent explanations for Ms. Schreiner’s supposed confession: perhaps in a state of shock she excitedly uttered to a neighbor that she killed her husband because she thought one of her beloved children actually did it. (BTW: This is a premise I explore in my forthcoming novel.)

Here’s another example that has troubled me for years. In the Scott Peterson trial, Peterson was reported to have told his next-door neighbor that he was playing golf on the day his wife disappeared, when in fact he was boating. This “lie” was repeated endlessly as proof that Peterson’s “state of mind” at the time was that he was trying to cover up his crime.

Put yourself in Peterson’s position. On Christmas Eve you discover that your pregnant wife is missing—and you run next door to see if she’s there—then you tell your neighbor you’ve been playing golf (because that’s what you were ‘supposed’ to be doing, having told your in-laws you would and then afterwards would stop at a shop near the golf course to pick up a food gift basket for an elderly in-law)—then, according to the law, your lie must be a guilty excited utterance and the neighbor’s hearsay is believed. (I can’t understand why the defense never suggested this in the trial. We all know that Peterson had a lot to feel guilty about that evening. He was having an affair. He may have been contemplating a divorce from a woman who was about to give birth to his first child. Maybe he was sitting out in that boat on the bay all afternoon trying to figure out how to tell his wife—wishing he wasn’t married. Then he gets home and wham! His wish came true. That’s enough to make even a callous womanizer feel a little guilty.)

The law cannot conceive of a situation in which an excited utterance is truthful but “excited” for any reason other than guilt. The law cannot conceive of an excited utterance that is a lie but the result of guilt feelings that have nothing to do with the crime.

My point? Jury duty is stressful because jurors genuinely want to learn the truth in court, but the rules of evidence prevent that from happening. Jury instructions often include phrases about “absolute certainty” being impossible in life. We all know that is not true. I have absolute certainty that in my lifetime the Earth will continue to orbit the Sun. I have absolute certainty about many other facts as well.

In some criminal trials, “the truth is out there,” but “out there” is outside the courtroom. In the Spector trial, a lot of truth came out in court.