A More Sophisticated Jury Trial Puzzle: Employees Must Wash Hands

OK, OK, I have provided an update/answer to the riddle in the last post. Such an addendum is unnecessary for my first two commenters, who found the riddle beneath them. I hope they find this one slightly more challenging. At any rate, it’s more difficult than 2 + 0 = 2, which was the solution to the verdict riddle.

Let’s begin. It’s not uncommon when you excuse yourself to the bathroom in a restaurant to find a sign posted somewhere near the sink and soap dispenser that reads:

Employees Must Wash Hands Before Returning To Work

If I ever open a greasy spoon there’s no way that sign will be in the restroom. Why? Because that sign does two things, at least to me.

  1. It does not convince me that someone who doesn’t automatically, subconsciously, always wash their hands will do so when reminded. If you’re not a hand washer for your own sake, you don’t change a lifetime of behavior because the boss hung a sign in the loo.
  2. It does remind me, as I walk back to my table, that there are people who don’t wash their hands after they use the john. And statistically speaking, it’s possible that one of them prepared my food. (Ewwwwww. Not the thought you should be putting in your diner’s heads.)

For puzzle purposes, it’s not important whether that sign has the same effect on you, only that it does on me, and quite possibly, on many others. To solve the puzzle, correctly answer this question:

What important lesson about jury selection does the “must wash hands” effect illustrate? (For full credit, please be very specific. Fully fleshed out examples will be awarded extra credit.)

Hint: “correct” answers are likely more than one sentence. Maybe more than one paragraph. Also, there may be more than one “correct” answer; at the very least, there are variations on a theme. This might end up being a test of how long my blog allows comments to become…

Conscious Mendacity

From my recently kindled copy of Eating the Dinosaur, Chuck Klosterman is interviewing Errol Morris, the documentary filmmaker, on the subject of interviewing people:

What’s more interesting to you: someone who lies consciously, someone who lies unconsciously, or someone who tells a relatively mundane version of the truth?

Here’s a snippet of Morris’ answer:

…I read a piece about modern forms of lie detection – methods that go beyond the polygraph. The writer’s idea was that we can actually record activity inside the brain that proves who is or who isn’t lying.

It suggests that the brain is some kind of ‘reality recorder’ and that we know when we are lying. But I think those lies represent a very small piece of the pie.

I think the larger sects of liars are people who think they are telling the truth, but who really have no idea what the truth is…

Let’s say you’re voir diring on punishment in a felony sexual assault case. Assume that, despite the proscription against “talking about the specifics of the case”, it’s pretty obvious to everyone by now that this ain’t no statutory rape case, and that if the defendant is guilty, he’s guilty of sexually assaulting a young child.

You’re asking the potential jurors about whether they could consider probation. All yes and nos fall into 4 groups (I think):

  • Group A: says yes, although they know they would never give probation (traditional liars)
  • Group B: says yes, but they just don’t know they would never give probation in this type of case (lying to themselves)
  • Group C: says yes, and in some cases they would consider probation (honest)
  • Group D: says no, means no (honest)

Of course, Group A includes all people who have figured out they won’t be on the jury if they say “no”, and who would prefer to sentence your client to prison right now before the evidence even begins.   Some want to hear the evidence, then sentence.

All other things being equal*, who’s a better guilt/innocence juror, the one that says yes or no? Group B isn’t a whole lot better than Group A, except perhaps for compromise verdicts.  Group C includes your best jurors, but distinguishing them from Groups A & B (besides asking better questions, see below) is uncertain at best.

Group D seem like your worst jurors. And your client is scared to death of all of them. But couldn’t some be better guilt/innocence jurors than the combined group of A, B & C? If all you knew about them was this yes/no answer, they’d almost certainly be better than Group A alone.

Conventional wisdom is to strike all jurors who say they can't follow the law regarding low end of the punishment range.  They are double whammies, bad for G/I, bad for punishment.  Is there room here for an exception?  I don’t know the answer to this question, I’m just asking.

[*All other things being equal, which they never are. The hypothetical demands that you ignore there are other factors to color your good/bad juror decisions, or you’re not doing a very good job in voir dire. Also, “Would you consider…” is a poor way to phrase the question to the venire in the first place. It’s just easier to frame my hypo that way; you can change the example, and still end up with the same quandary: for guilt/innocence purposes, is a Group B juror that lies to himself, or to the lawyer, about being able to sentence on the low end of the punishment range worse overall than a juror who is honest about not being able to do so?  And how big a percentage of the overall population is Group C?]

Intoxication is Not a Defense

But it might get you out of jury duty.

(Or should I have made this post something about having “a jury of your peers”?)

Jury Selection and the Unwitting Possession Defense

For a jury to convict a defendant of possession of marijuana or any controlled substance, the State must prove more than the defendant’s mere presence near the contraband.

As a criminal defense attorney, however, you can’t just take this concept for granted. After all, he wouldn’t be your client in the first place, if he hadn’t been…

  • driving the car where the marijuana was found
  • in the house where the cocaine was found
  • carrying the computer with the porn files…(for example)
  • etc., etc.

What this cries out for, is a good common sense example that every venire member can understand immediately. And here’s one I learned a long time ago (I don’t remember from whom, or I’d give them credit).

Pick a potential juror and tell him a story. Start with the example of someone who is guilty. Then tweak the facts until you come up with a not guilty.

Attorney: Mr. Juror, let’s say that your neighbor decides to take some marijuana over to a friend’s house. He puts a baggie of marijuana on the passenger seat of the car, and drives to his friend’s house. On the way, he gets stopped for a traffic violation, and admits to the officer that the marijuana is his.

Now, even though he was never seen in physical possession of the marijuana, you would agree that if the State proved everything I just said to you, that would probably end up with a guilty verdict?

Juror: Yes, I suppose so.

Attorney: OK, good, we agree. Now let’s say his friend lives in another State, and he decides to mail him the marijuana. Same facts, but this time he places the marijuana in a plain unmarked package, and takes it to FedEx to mail it. He gets caught before he gets there, and once again the State brings you good solid evidence of everything I just told you. Still guilty, right?

Juror: Yes, still guilty.

Attorney: OK. Let’s say this time he actually mails the marijuana. The FedEx employee takes the box from the delivery van to the front door of his friend. The police swarm in (for whatever reason) and stop the FedEx carrier before he can get to the door. The FedEx driver was actually in physical possession of the dope. Why is he not guilty?

Juror: Well, he didn’t have any way of knowing what was in the box…

Obviously, I can’t predict the actual answers here, and if the guy you picked out doesn’t come up with it, move down the row until someone does (they always do).

Then reinforce that answer by saying, “Not only did he not have any way of knowing, but the State didn’t bring any evidence to show that he knew what was in the package”.

Won’t necessarily do you much good when your client has it on his person, but can be great material to get potential jurors talking when your client was arrested in a vehicle, or even in his own home.

Criminal Possession Requires Intent or Acquittal

When a defense lawyer tries a criminal possession case, the jury must be asked about the “intentional and knowing” element of a possession charge during voir dire.

The reason? Unknowingly possessing contraband is not criminal.

Dan Browning of the Minneapolis Star-Tribune wrote an article today about the acquittal of a computer consultant on possession of child pornography charges in Federal Court. (Hat Tip: CyberCrime)

There was never a dispute about whether the defendant possessed the computer, nor whether images of child pornography were found on the computer. The defense, however, hammered on the government’s inability to prove that the defendant knew that the images were on the computer, or intended them to be there:

Sarah Snider, the forewoman of the jury… said jurors examined the computer logs and discovered that Furukawa had downloaded thousands of files. The child porn files were "few and far between," she said. "It's our belief he wasn't looking for it."

DeAnn Roy, another juror, said no one disputed that the images were illegal child porn. "We just didn't see proof that he knew, or that he willingly had that on his computer."

Good job done here by the defense lawyer Daniel Gerdts in properly focusing the jury on holding the government to its burden. Too often jurors believe that simply possessing something is a crime, without forcing the State to prove that the defendant knew he was in possession of something illegal.

[Also see my thoughts on Jury Selection and the Unwitting Possession Defense.]