Steve Palmer [00:00:01]:

All right, here we are. Lawyer talk off the record on the air. Coming at you today with an interesting topic. It's coming from not only a question or comment we had on another video, but just in general. It's a great topic and it has to do with juries and whether juries should be secret. When can we challenge a jury's verdict? How does that all work and why? And there's some history here, a little bit of practical considerations. We'll get right to it. But before we do that read we did look, we did an episode on body cams, but this comment came up in that context.

Steve Palmer [00:00:31]:

So let's hear what they had to say.

Troy Henricksen [00:00:32]:

Come from TikTok. We got Sean Ward, 70. He said should we record jury deliberations to ensure no one is breaking the law there?

Steve Palmer [00:00:40]:

Yeah, no, no. But it's a bigger topic than that. So it's a great question. And I really mean this. It's a good question because this is. You're not the first person, the only person that's really, really smart. People are debating this even today. And you might think of the biggest trials we've had in modern times.

Steve Palmer [00:01:00]:

I won't go back to the ancient times like the 1900s, but in modern times, or maybe one of them, the modern times like the O.J. simpson case or some of these big acquittals that we get. And people would say, well, how did the jury get it so wrong? We should just watch their deliberations. And then you see what I did there. I stopped because. And then what?

Troy Henricksen [00:01:24]:

In theory, you're not supposed to be able to do anything with it at all. You're just going to watch it.

Steve Palmer [00:01:28]:

You're going to watch. But to what end? I guess, and this is the reason I got there, is because when we read this question or comment and you were going through other things we're going to talk about, it started to roll around the back of my head. And I'm thinking, all right, it might be interesting to hear what it. But what are you going to do if you don't like the way they're getting to where they're getting it, inevitably is going to create an immediate demand to go in and somehow meddle with it and fix it. And then you get to a spot like where do you stop? And then you get to a spot where you have to ask, is it really the jury's verdict anymore, or are we supplanting our own verdict for what we think it should be? And then you have to ask, who gets to make that Decision, and then you're back to like, some judge. I heard a popular conservative commentator recently say, or talk a little bit about the virtues of maybe having a European type system where it's a judge panel. Wrong. I couldn't.

Steve Palmer [00:02:25]:

I couldn't disagree more. You know the history of trial by jury. Some take it all the way back to Magna Carta 1215. It even can go back further than that if you get into the history of our common law. But, you know, it replaced. There used to be three ways we had justice. It was comprogation. I'm spitting from memory here, but compurgation, ordeal or battle? We're going back to, like, medieval times.

Steve Palmer [00:02:50]:

Compurgation, I believe, was like, you get a bunch of priests to come in and swear for your side, or right hand, swear for your side. I swear he's telling the truth, or I swear he's right. And then whoever had the most believable people swearing won ordeal. This is like the classic Monty Python. A witch, you know, you would throw somebody into the river, and if she drowned or he drowned, then they were actually innocent, I think, or something like that. If they floated, maybe they were pro. And then you had this ordeal where you'd pick up a hot rock and how much it would burn your skin would be your credibility. Just crazy stuff.

Steve Palmer [00:03:25]:

And then battle, of course, is, hey, I'm right. No, you're not. Yes. Huh? Nuh. Well, let's go fight it out and see who wins. And then the jury system comes along, and it's supposed to be like this impious idea that it's not disturbable by any outside sources. And for good or bad, we want to protect that. And we don't want to get a situation where we're quibbling with jury verdicts.

Steve Palmer [00:03:50]:

I mean, look, Troy, you're in law school. You guys have probably kicked this around. What's the immediate. I'm tainted by 30 years of trying cases. So what's the immediate law school reaction to this?

Troy Henricksen [00:04:01]:

Well, first off, we never talk about this in law school. I've never even thought of this concept.

Steve Palmer [00:04:06]:

And so now this is a. They don't teach you.

Troy Henricksen [00:04:08]:

Yeah, they really don't teach this in law school. This is the first time, the minute I read this, I was like, this might be, like, the best comments I've read on here. This is, like, pretty good. I was. It really got my head spinning. In my head. The first issue is going to be, you want this jury to deliberate, like, freely and, like, do whatever they want to do in that room. And, like, Talk about it.

Troy Henricksen [00:04:27]:

And without any pressure. And the minute you tell them, by the way, there's a camera watching you, all of a sudden I'm like, okay, well that's right now you're performing. Yeah. It's like, well, I want to make sure this is a good recording for the camera. I don't think that we want them to do that. And you can tell them, hey, we can't wash this camera, we can't do anything with it. Because then it's like, what's the point of recording then? Why are we doing it?

Steve Palmer [00:04:49]:

Right. So the point of recording this is to employ some sort of standard on jury verdicts. I mean, it has to be. I mean, look, curiosity. Believe me, there's been many a times I've tried to sit outside the jury room thinking, oh, I heard him say blah, blah, like you're not supposed to. But you hear like yelling or something. You're like, wow, they're really mad in there. Something's going on.

Steve Palmer [00:05:10]:

Or the bailiff. They get a question and we get to hear the question. So we try to predict it. But you know, the idea is there's a sanctity there that can't be disturbed. We don't want that. You raise a great point. We don't want the jury to be influenced by who or if they're being watched. And anybody who thinks that, that's not a big deal.

Steve Palmer [00:05:32]:

It is like we have this studio down here and it's like the studio syndrome. People come down and be like, oh no, I'm great, I can talk about this all day long. Businesses come and use this and as soon as the cameras go on, they freeze. And it's happened to me, I've gotten more comfortable with it, but it happened. Anybody who looks at a camera and says, I'm just going to talk, like I would talk at a bar or something or at a restaurant or just at home. It's really hard to do because you've got this weird thing in the back of your head that now you're performing for somebody and you don't. I think our human nature is we don't want to be, we don't want to be second guessed or questioned or we're very self conscious about that. And the deliberation process incorporates enough of that in and of itself.

Steve Palmer [00:06:15]:

Because there's 12, not one, not two. And in theory everybody should disagree and fight it out and get to the end and that's the verdict. And at the end of that process, at the end of that adversarial Deliberation comes at least as close to the truth as we can get or close to the right verdict as we can get.

Troy Henricksen [00:06:35]:

I just feel like the whole issue on our legal side is let's say we do find a way to put cameras in deliberation room. What is the point?

Steve Palmer [00:06:44]:

Well, there again, what's the point?

Troy Henricksen [00:06:46]:

We get the video. Now what? Motion for a new trial. Can't do it. Can't use it on appeal, can't use it. The only reason we could do it is maybe a good way is what do we do at trial that's really good. What is really sticking with this jury? And it's like, okay, that's going well. But there's other ways to do that. You focus groups, you, you have that way to do that.

Troy Henricksen [00:07:07]:

But that would be interesting. Or you can interview jurors afterwards and ask them, what did you like about this? What did you not like about that?

Steve Palmer [00:07:13]:

Well, look, I'm wearing a shirt today. It says cdc. I have a consulting business where we organize focus groups, mock trials and the like. And some of those you get some insight into a, quote, mock jury or fake jury deliberating about cases or facts that you gave them. And that's very instructive for the lawyers, but it's not so instructive if you're going to get to. It's not what you want in the real world. Because the argument that it's educational for the lawyers, I think that stops about halfway to what's really going to happen. Your point and the point I was trying.

Steve Palmer [00:07:54]:

I guess there's two things. One, what does. I think it is harmful to the sanctity of the verdict itself because people are going to behave differently if they know they're being watched, recorded, second guessed. And two, it's sort of like any power grab, because this is a form of a power grab. Who's going to let go of that lever of power when they say, well, that wasn't in evidence, they shouldn't be talking about that. And there's going to be this overwhelming urge to intervene in the middle of it, if not change it afterwards for something or to comport with what we think their issue should have been. And I will say this almost always often is the case I go talk to a jury afterward, even in a case that I won and they found my way for reasons that sometimes I hadn't even considered or I had dismissed as a secondary or third tertiary, I guess, or third reason why I think they should find my way. And they've completely ignored the premise of my case.

Steve Palmer [00:08:58]:

Other times, though, I'm validated, where I have a theme and theory of the case and they parrot it back to me. And then I know that I've done my job. So it's instructive. But, boy, can you imagine the urge of meddling governmental actors and lawyers, worse lawyers, to say, objection, they shouldn't be doing that. We think this is bad. Blah, blah, blah, blah, blah. There's actually some rules about this. And you and I worked on a case and we have a colleague that's working on a case that this came up.

Troy Henricksen [00:09:30]:

Yeah. And I thought the scenario that it came up in our office. I thought. I never really imagined it stay on T shirts in law school. I would never thought this jury question videoing until we have an issue where the foreman's coming back and saying, hey, we can't deliberate because somebody's being too hostile. Is that the word you used, hostile? Disruptive back there. And we have to take this foreman's word for it. And we're like, okay, yeah, you're right.

Troy Henricksen [00:10:00]:

And then you talk to the juror afterwards, getting dismissed for being disruptive. And he's like, no, no, no. I just. I just didn't agree with him on the evidence.

Steve Palmer [00:10:06]:

All right, so what happens is there's 12 jurors, 11 of them represented by the foreman or foreperson, approach the judge during deliberations and say, look, we got a real winner here. He is a pain in our backside. He's being hostile. He won't agree with anything. And, you know, he's doing all. He's yelling, we're intimidated by him, blah, blah, blah, blah, blah. And after some debate, I'm not going to go into all of it. We got to get the lawyer involved down here for a show.

Steve Palmer [00:10:32]:

But after some discussion and debate, the judge, over objection of defense counsel, decides that the best thing to do is discharge that one juror and bring in an alternate. Well, lo and behold, about 20 minutes later, there's a guilty verdict. So you would think, all right, well, that is awful suspicious. They were ordered. The jury was ordered to begin deliberation anew. And this was like two or three days in and 20 minutes after that order or instruction by the judge, they have a verdict of guilty. It sort of sounds like there were 11 people that were ready to go home and one that didn't want to find somebody guilty. And, you know, that is meddling in the system.

Steve Palmer [00:11:14]:

And the jury panel a good example of it, that probably resulted in a verdict that would have otherwise not have Happened, it would have been a hung jury. And you could argue about the debate about that all you want, but the fact is we have a right to trial by jury in this country. And that right contemplates and is informed by the historical notion of the sanctity of the jury. Now, it does come up here and there that there is misconduct in the jury. And there's a rule called the aliunda rule. This is we're way in the weeds, but aliunda, I think a l, l, I, u n d e or maybe one l. And it basically says we can't impeach jury misconduct with external sources. So you can't interview the jury later and say.

Steve Palmer [00:12:01]:

Or not misconduct. You can't interview the jury later and say, yeah, they found their verdict on bad things. Now you can. You can get around the ali under rule for purposes of misconduct. So if somebody has. There's a clint eastwood movie or his son's in a movie, I think clint eastwood maybe directed it. I don't remember. Called the juror.

Troy Henricksen [00:12:20]:

It's out of my genre.

Steve Palmer [00:12:22]:

It's happened like last year.

Troy Henricksen [00:12:24]:

Oh, really?

Steve Palmer [00:12:25]:

A recent movie. His son was the key player in it.

Troy Henricksen [00:12:29]:

Maybe it is the juror. It's the guy from breaking bad is the judge, maybe.

Steve Palmer [00:12:34]:

At any rate, what happens is this juror goes to the scene of the accident. It was a hit and run accident. Goes to the scene of the accident they're describing. Well, it turns out he was involved in the hit and run accident in some way. Somebody else was charged for that conduct that the juror had committed. All right, so that's, you know, clearly that's a problem. And the aliunda rule would not prohibit that from being exposed. But that's Hollywood, and it's a bit of an overstatement, But a common thing might be that a juror went to the scene of a crime and brought new evidence into the deliberation room.

Steve Palmer [00:13:11]:

Well, that's not proper. Everybody would agree that's not proper. That would be misconduct. And I think that would probably be outside the ali under rule, which otherwise would prohibit impeaching the jury verdict. So there still are some ways to do it. And there's ongoing debates about whether the sanctity of the jury should remain intact for. Or we should videotape it, which I think ultimately leads away from the jury system. You know, look, take it out to its logical conclusion.

Steve Palmer [00:13:38]:

You start videotaping and audiotaping or recording jury deliberations, it won't be long before we want to tinker with what they're doing in there, object to what they're doing in there, ultimately challenge verdicts that are rendered as a result of it. And that is the next step from that is basically judicial oversight or judge oversight of what the jury does. And, and you might as well just get rid of the jury at that point. So, yeah, I was thinking, though, for.

Troy Henricksen [00:14:01]:

This case scenario in our office, I wish if we had this video, it would have solved this entire issue. We wouldn't have to do motions or get affidavits or anything. We just pull the video and I don't think we should. I'm trying to think of the most least restrictive way possible. There's certain motions that give us in camera view. So imagine we don't get the video or anything, but the judge can at least go view it. And the judge can be like, okay, no, what he's saying, the foreman's saying there's like misconduct back there. I didn't see any.

Steve Palmer [00:14:32]:

Well, let me ask you this. Let's carry this out. You're going to take the argument. I'm not saying you agree with this or don't agree with it, but you're going to take the position that you should have some recording, video or audio of what's going on in the deliberation room.

Troy Henricksen [00:14:45]:

I don't think. I'm not agreeing with him.

Steve Palmer [00:14:46]:

I'm not ascribing that to you, but argue that point. You just made a good argument. You could do it in camera so only the judge could see it and only use it when there's any question. Is it public record.

Troy Henricksen [00:15:01]:

For the stuff that we're doing in camera reviews for in general? I don't think it's public record.

Steve Palmer [00:15:05]:

Well, I mean, we've got this audio recording. The case is over. Why wouldn't it be public record?

Troy Henricksen [00:15:09]:

I mean, I'm just saying this could be part of the rule that it gets like dissolved after you wait for the appellate timeline that expires and then you get destruction.

Steve Palmer [00:15:17]:

You get the House of Representatives going to pass a bill that say you have to release all the information. So I think ultimately, once you. This is the classic scope creep, right? It's the Pandora's box, whatever metaphor you want to use. Slippery slope. Once you unleash Pandora's box, there is no way to contain it. And off it goes. You know, you can't put the genie back in the bottle, toothpaste back in the tube, Come up with another one. Leave it in the comments if you have another one.

Steve Palmer [00:15:43]:

But it's, it's going to lead to tinkering and manipulation and oversight that ultimately destroys the sanctity of the jury process. And look great. There's a couple. Great. One, great movie. It started as a play called Not Anatomy of Murder.

Troy Henricksen [00:16:05]:

Anatomy of a Fall is the most recent.

Steve Palmer [00:16:07]:

No, Henry Fonda was the star. I'm drawing a total 12 angry men. 12 angry men. Go watch that movie, folks. 12 angry men. It was a play. I've never seen it live as a play, but I watched the movie. It was a remake with Jason Robards.

Steve Palmer [00:16:19]:

I think it wasn't as good, But Henry Fonda in 12 Angry Men, it's great. And believe it or not, there was a little bit of jury misconduct in 12 angry men. I think Henry Fonda's character went out and bought the knife that the kid had used, and he, you know, famously, in this dramatic way, stabs in the middle of the table. It was supposed to be such a unique knife that nobody else could have had it. So the kid must have committed the crime. Fonda slams it down and pokes it into the deliberation table and. And, you know, it's like. But that was misconduct because he went out and investigated and brought external stuff into the jury room.

Steve Palmer [00:16:53]:

So, you know, saved a kid's life, though. Saved a kid's life. But you never knew whether the kid did it or not at the end of that movie, which is sort of the neat part of that. Look, that is another riveting episode based on a great comment and question. Keep them coming, folks. If you've got a question, you've got a thought. You've got a topic you want us to cover? Check us out@LawyerTalkPodcast.com or, like so many people are doing these days, leave it in the comments. Shoot us a question there.

Steve Palmer [00:17:17]:

Happy to cover it. If you think you want to be a guest or you got something to offer, let us know that, too. We're interested in taking all comers. So lawyer talk off the record, on the air till now.