Last week jurors in the trial of NJ State Trooper Robert Higbee informed the judge that they knew something that might be improper. One reported knowing a witness. One reported knowing someone who knew the defendant. And one reported knowing something how to interpret photographs of the outdoors.

When I served as a juror, I knew some things that no one else on the jury knew about linguistics that affected the way I understood a written confession. Other jurors knew some things about the Spanish language. During deliberations when we knowledgeable jurors tried to discuss these “things” we were told it was improper to do so (I think it was the foreperson who said this, but after all these months I can’t be sure).

However, the judge’s instructions clearly stated that we were to use our “common sense and experience” in evaluating the evidence.

So, why is it always a problem when a juror knows something about the parties or the issues beyond what is presented in the courtroom?

A standard voir dire question is whether the potential jurors know any of the parties or anything about the incident that might make it difficult for them to be impartial. This makes sense: it is critical that jurors remain impartial.

Potential jurors should always reveal anything that might make them less-than partial. Even if a juror believes his knowledge will have no impact on the verdict, he is obliged under oath to reveal this to the judge. Law-enforcement officers and lawyers, for example, always reveal themselves during voir dire, even if their professional duties have nothing to do with the case at hand.

Being an expert in anything, however, does not disqualify a juror. I have personally observed voir dire in which lawyers, jury consultants, physicians, physical therapists, and priests have been selected for juries, including a jury for a lawsuit involving whiplash claims.

So, I was surprised when one of the Higbee jurors who is a surveyor told the judge he/she would be able to identify aspects of crime-scene photos that other jurors might not and then the judge questioned the juror on the stand before proceeding with the trial. (According to TruTV reporter Jean Casarez the juror sent a note to the judge about this potential conflict of interest. That’s the wise thing to do.)

• It sounds to me as if the juror’s expertise estimating distances from photographs (for instance) will be important in deliberations in the Higbee case. So far, the defense has been prohibited from cross-examining eye-witnesses about the accident scene where, apparently, the signage is problematic.
• The judge’s prohibition troubles me (I believe I heard there will be a debate about this on Monday). The prosecution has claimed that Trooper Higbee knew the location of the stop sign, and the defense has claimed that the intersection was poorly marked. From a jury’s perspective, I feel all information about recent updates to the signage should be presented in court.

Knowledgeable Jurors

I don’t know where the idea that jurors must be ignorant comes from. I’m not even sure it’s the courts that foster this so much as it is jurors ourselves who don’t understand what it means to be impartial while using common sense and experience.

For example, a lawyer once told me he was surprised when he was selected for a jury, because he knew “too much about the law.” Since the judge is the interpreter of the law in a trial, the lawyer thought the judge would dislike having him on a panel.

During voir dire most people who want to avoid jury service seem to be happy to reveal even the slimmest connection with one of the parties and then to claim they can’t be impartial because of it.

Most jury instructions also caution jurors from deciding a case based on anything other than the evidence and testimony presented in court. I suppose this is why I wasn’t permitted to complain about the validity of a confession during deliberations based on what I know about writing and language.

Historical Know-it-alls

If you look in the Oxford English Dictionary for the origins of the words “jury” and “juror” you find a startling fact: in England (soon after the Norman invasion) jurors were chosen “from the neighborhood” because of “facts within their own knowledge” about the issues in a trial. In other words, a “jury of peers” was not only a matter of the same social station but also of your “compeers” or neighbors—people who knew you and all the parties in the trial.

A juror familiar with the defendant and the victim (historically) was assumed to be better equipped to evaluate testimony for truthfulness and accuracy.

Jury Instructions and Lack Thereof

All this leads me to conclude that one of the most serious flaws in our current approach to jury service is lack of education about the deliberation process that produces a verdict. Verdicts are supposed to be “true.” But if jurors have no idea how to deliberate or what is proper for an individual juror to discuss during deliberations, a true verdict is unlikely.