Many lawyers distrust juries; we know that. "You can never predict what a jury will do," most lawyers have told a client at one time or another. Lawyers hit with a bad verdict can be more colorful. After actor Robert Blake was acquitted for the murder of his wife, the prosecutor publicly called the jurors "incredibly stupid."
Lawyers get angry at jurors not only for disagreeing with them, but also for tuning them out, and for ignoring the jury instructions. Lawyers tell me that jurors don't care, that they didn't listen, that they had their own agenda, that they just wanted to go home.
I'm sure there are some unreachable jurors out there, but I strongly believe they are very rare. Jurors care; they care a lot. They want to do the right thing not only by their own lights, but also under the law they are newly learning. They are frustrated and even saddened when they can't make out the instructions, or when the special verdict sends them inexorably toward a result that makes them uncomfortable. But they will follow the law, if we communicate it to them well, even if it causes them pain.
There is research on this, telling us that when jurors don't follow instructions, it's usually the instructions' fault, not the jurors'. Much of it is collected in Prof. Vidmar's rich article The Performance of the American Civil Jury: An Empirical Perspective, 40 Ariz. L. Rev. 849, beginning at 866 (and p. 18 of the .pdf version I'm linking to).
Sometimes anecdotes make the point better, though. Look at this blog entry the other day from Mark Rohl, who says he is a 29-year-old Arizona man who works in construction. This week he was on a jury that had to decide whether to take five children away from their mother. They had to decide two questions, he said, and were told that if their answer to either was yes, the children had to go to protective care. They disagreed as to one but agreed on the other "yes." At the end of the day, he wrote:
Today on valentines day I told a mother that she is "mentally ill" and that she is no longer the parent of her five children. My heart breaks for her, her children, and the remaining family on mothers side. For the last three years she has been fighting this, and in a day its over. I always wounder ed what it was like to sit in on a trail. To hear lawyers do their thing, to hear the bailiff tell all to rise as the jury came in and out of the court room. My broken heart is for her, having her children taken away from her. For me, seeing those with kids not take care of them, but not being able to have any of my own. For me, taking away other peoples kids, but not being able to have any of my own. Ask me to judge a thief, ask me to judge a murderer, ask me to judge a drug dealer, but don't ever ask me to take someones children away ever again. I have always wanted to be a part of a trail, no one said it would be easy, but no one said it would be this hard.
