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Washington Lawyer

Legal Spectator: All Rise: The Court Is in Session

From Washington Lawyer, January 2013

By Jacob A. Stein


The Judge to the Jury:Ladies and gentlemen of the jury: Both sides have rested. You heard the evidence and the closing arguments. Now, I will instruct you on the law. You must decide the facts, apply the law, and reach your verdict. Preliminarily, let me say you must be objective. You must not let bias or prejudice affect your decision.

The Judge to Himself: I never met a human being without bias or prejudice, and, I might add, sometimes politics. Thankfully, there are no politics in this case. But there are things that stir emotions. I am glad the jury is deciding the case and not me. It is a close call.

*       *     *

The Judge to the Jury:You are instructed that you cannot convict the defendant unless you find him guilty beyond a reasonable doubt.

The Judge to Himself: I have never been able to determine exactly what that means. I’ve heard clever closing arguments in which the defense lawyer, as in this case, suggested that if there is any one single doubt, the defendant must go free. I was tempted to interrupt the lawyer because it must be a reasonable doubt, not any doubt. But then again, what is reasonable? The prosecutor should have objected. There are now appellate opinions that say that neither the judge nor counsel can go beyond the words “reasonable doubt.” What is reasonable and what isn’t? Well, that’s for the jury to decide.

*     *     *

The Judge to the Jury:In reaching your decision, it is for you to decide which witnesses were truthful and which may be untruthful. You must take into consideration the way a witness appeared on the witness stand and how he testified. Use your common sense and experience in making the evaluation.

The Judge to Himself: I myself cannot tell, just by looking at a witness and the way he talks, whether or not he is truthful. Studies have been conducted about the way a person speaks and acts on the witness stand. These studies report that humans are not good lie detectors. Common sense, what does that mean? Anymore than what reasonable doubt means?

As I watch a witness, I am convinced that the oath does mean something. The raising of one hand, and the other hand on the Bible, has an effect. How much, however, is not clear.

*    *     *

The Judge to the Jury:I shall now read the indictment to you. It is signed by the grand jury foreman. It gives in detail the evidence the prosecutor was to put before you. If the prosecutor did not put the evidence before you, you must ignore those passages in the indictment.

The Judge to Himself: I recall what a colorful New York criminal defense lawyer once said about grand juries: A grand jury will indict a ham sandwich if the prosecutor wants it. There are actually prosecutors who hold press conferences and read the grand jury’s indictment.

*     *     *

The Judge to the Jury:You should ignore the fact that both the prosecutor and defense counsel have made objections that I have ruled upon. That is what lawyers do in a trial, and you should not draw any inferences from that.

The Judge to Himself:Defense counsel didn’t object enough. I was tempted to suggest that there should be an objection. But if I did that, it may give the jury an indication that I am taking sides.

*     *     *

The Judge to the Jury:As you saw, Juror No. 4 was replaced by an alternate juror. You should not draw any inferences from that. It has nothing to do with your deliberations.

The Judge to Himself: I saw Juror No. 4 doze off. Juror No. 5 looked at Juror 4 when he was nodding off. Juror 5 glanced at me looking for something to be done about it. Judges have fallen asleep and jurors fall asleep. A judge in this court was told, at the bench, by defense counsel in a case last week that a particular juror was sleeping. The judge, who has a sense of humor, said to defense counsel, “You put her to sleep, so now you must wake her up.”

*     *     *

The Judge to the Jury:There have been two experts who have testified. An expert is someone who has special knowledge based on his academic background, his studies, and his work in his specialty. The testimony of an expert is in the form of an opinion. You can adopt the opinion, or you can disregard it. Use your common sense.

The Judge to Himself:I couldn’t understand a word the experts said—too complicated. They get huge fees for that double talk. They dragged in everything but E=mc2, which I could never understand.

The lawyer for the defendant, in summing up, was clever. He told the jury that the opinions were complicated and the jury is not expected to understand them in all respects. The juror should use his own common sense. Well, there is that common sense business gain. There should be a law school course about common sense; I would like to teach it. Then I would know something about induction, deduction, and logic. I picked up a book titled Informal Logic, an interesting title. In almost every case now, there are experts. I wonder how long they’ll be out. My law clerk thinks they’ll be back in two hours. I don’t think so. I think there will be notes asking questions about that expert opinion that took two hours. I will now have the courtroom clerk call the next case.

Reach Jacob A. Stein at [email protected].