3.Renewed Motion to Limit Deliberation Instructions During Voir Dire
6 linesMR. WEINREB: Before we call out the next juror, can I be heard for a minute? It can be on the record.
THE COURT: Okay.
MR. WEINREB: Your Honor, I would like to renew the motion I made several days ago that Mr. Bruck in particular, but nobody, instruct jurors on the appropriate way to deliberate in the jury room. That strikes me as wholly inappropriate. And in particular, the instruction that seems to be being given, even if it is phrased in terms of a question, is that no juror attempt to change another juror's subjective view as to whether the death penalty is appropriate in a given case. And the result -- or seemingly the intended effect of that instruction to these jurors about how to deliberate and not deliberate is to encourage the possibility of a hung jury; in other words, to say to jurors who might naturally be leaders on the jury and help to persuade others to reach a unanimous verdict, that they should not do that. That just as it's their personal subjective decision as to whether to impose the death penalty, they should respect others' subjective opinions and not try to change them.
That is not the law. In the Jones case in the Supreme Court, the court wrote about the importance of unanimous decisions by jurors, and in death penalty cases in particular, just as it's an important consideration in all cases, and it's perfectly appropriate for jurors to try to change the minds of others. And it's undoubtedly a common situation on juries that leaders emerge who try to convince the other jurors and help to achieve a unanimous verdict, and that should be encouraged and not discouraged.
This juror candidate in particular seemed to be in no need of any instruction on that score. When first asked about it, he said that he understood as a manager that it's important to listen to others, and nevertheless, Mr. Bruck persisted in making sure that he understood that he should let others have their opinions even if they differ from his.
And it's that kind of pushing the jurors in a particular direction about a matter that has nothing to do with voir dire and everything to do with trying to affect what happens in the jury box later on that the government thinks is inappropriate and should be prohibited.
MR. BRUCK: This has come up with a grand total of two jurors who were both engineers in supervisory capacities. And this was a juror who had talked about reaching consensus in a way that raised the question of whether or not he understood that in the end jurors had to make individual -- I think the Supreme Court's language is "reasoned moral responses to the evidence," which is not the same as an engineering problem or a pile of bricks.
And I think it was appropriate in -- for that particular juror to simply ask whether or not he would respect or could respect other -- the fact that other jurors might reach different moral views, and that was the end of the inquiry.
THE COURT: Well, okay. I think the purpose here is to discover disqualifying bias or other issues. That's the principal purpose, and we have to remain focused on that. There's no single script that we could follow as we do that.
I agree with the general proposition that this is not an occasion for argument or instruction, so -- it's obviously difficult for jurors who are not used to this process, who are not used to thinking the way we think about cases, to process questions about "what would you do if." It's just very hard. And for them to be uncertain about that, to express reservations about their ability to do something in the future on some hypothetical set of -- or unknown set of data, really has questionable utility in this process.
I mean, there's some people you can get a sense that they have a disability of some kind with respect to being able to handle their responsibility as jurors, but you'll have very qualified jurors who think, because they're being asked the questions, that they should doubt what they don't doubt, and that's one of the problems we have here.
I think that was a ruling. I'm not sure.
(Laughter.)