Honesty in jury pool examined in 'Juror #2'
Clint Eastwood’s supposed directorial goodbye, Juror #2, does a great job of focusing on one of those deficiencies, namely juror honesty and how it affects the rule of law, writes ABA Journal columnist Adam Banner. (Photo by Claire Folger/Warner Bros)
I’ve tried dozens of cases in my career. As with anything else, the more you look at something, the more pronounced the cracks and deficiencies become. Interestingly, Clint Eastwood’s supposed directorial goodbye, Juror #2, does a great job of focusing on one of those deficiencies, namely juror honesty and how it affects the rule of law.
With a limited theater release in November, the film, now available on Amazon Prime, stars Nicholas Hoult as Justin Kemp, a recovering alcoholic who received a jury summons. Through various flashbacks, we learn that although he has struggled with addiction, he seems to have his life back on track—with a baby on the way to boot.
At jury selection, he discloses to the judge that his wife has a high-risk pregnancy. The trial lawyer in me couldn’t help but chuckle when the judge noted that if he could work his day job with his wife at home alone, he could spend that time in court.
We quickly learn the trial concerns heavy allegations: after a drunken night at the bar, which included a big argument, the defendant is accused of killing his then-girlfriend by blunt-force trauma to the head as she walked home after the fight. The prosecution alleges he left her body in a ditch over the railing of the road.
The defendant, James Michael Sythe, is played by Gabriel Basso. His girlfriend, Kendall Carter, is played by Clint Eastwood’s daughter Francesca Eastwood.
Most of the movie’s first half-hour or so speeds by with a timeframe consumed with quick, exceptional vignettes from trial. The swift scene changes don’t focus too much on substance. Usually that would bother me, but the style the attorneys employ is immediately accessible. The drama is there, but it’s not overdone.
Questions and concerns
As the trial moves forward and the relevant facts begin to take shape, Justin Kemp, the juror, realizes he was at that same bar the night in question, processing a recent miscarriage. Despite spending the evening staring at a drink without breaking his sobriety, as he was driving home in the rain, he dropped his phone, and the car hit something in the dark … at the exact spot where Kendall Carter’s body was found over the railing.
The film hit a lot of different chords for me. I kept coming back to the notion that the juror had a duty to reveal this information about that night and that location. Jurors swear to answer questions truthfully during jury selection, and they hopefully honor that fact. Moreover, jurors have to alert the court when they feel they can no longer be fair and impartial—no matter when those thoughts and emotions rear their head.
The juror thinks back—after the collision, he got out of the car and looked around. He didn’t see anything or anyone, and due to a Deer Crossing sign on the side of the road, he understandably put two and two together. However, he spirals, and his negative thoughts get the best of him. Was the death his fault?
He never tells anyone about his whereabouts, although he tries his best during deliberations to prevent the jury from quickly convicting the defendant.
Without giving away too much, the movie’s pivotal question comes down to the juror’s honesty, and the concept of honesty in general. He isn’t sure if he hit the girlfriend, but he knows it’s possible. Should he let the defendant take the fall or fall on the proverbial sword himself?
Everybody lies sometimes
I’ve had trials where a seated juror approached the judge to admit that, for whatever reason, they could no longer be fair to one side or the other. And you know what? I respect the hell out of that. It still gives me faith that the system works when we’re open and honest.
At the same time, though, I know some potential jurors are less than totally honest about their perspectives, biases and knowledge of relevant facts. Sadly, a lot of this dishonesty tends to happen during jury selection, a state of the trial where those notions should and easily can be revealed to the attorneys and judge.
The fact that information is kept hidden is odd because voir dire is like an interview for a job no one wants. Disclosing that bias would be an easy out of the venire, but something keeps them from relaying the information. Even though it’s usually obvious when someone doesn’t want to be there, most folks still do everything they can to put on their best appearances and swear they’ll follow the law. People don’t want to look bad in a public setting.
So, jurors rarely admit they can’t be fair and impartial. I’ve had sex crime victims tell me during jury selection for a sex crime case that they can put their experiences aside. Can they? Maybe. Is it likely their past trauma might sneak in and bias their opinion? Certainly.
I’m sure some people have faith and conviction they’ve healed to the point where they’ve “moved on” from a horrible event like that. But a juror with that background usually isn’t getting past a concerned attorney’s preemptory challenges. Other issues aren’t always so apparent, like jurors who lie about their ability to refrain from drawing a negative implication or inference from my client’s decision not to testify.
The forgotten Fifth Amendment
I once tried a child sex crimes case where we felt we had a pretty good defense. The prosecutor admitted she wasn’t confident in a conviction, and the trial went mostly in our favor.
As with most of my cases, I didn’t know for sure whether my client would testify. We’d planned for the possibility, but once the government’s evidence came out, we felt there was more to lose than gain by getting on the stand.
I try to get ahead of either possibility by discussing the prosecution’s burden and my client’s constitutional rights during voir dire. All the potential jurors swore in various ways, multiple times, that they wouldn’t hold it against my client if he didn’t take the stand. Moreover, prior to closing arguments, as with every other trial, the judge instructed the jury it could not draw an adverse inference from my client’s decision not to testify.
After he was convicted, I contacted the jurors to see if any of them would speak with me. That’s the best way to perfect your craft and better your advocacy. Only one of the jurors was willing to talk.
Through tears, she explained that the other jurors had argued my client must be guilty since he wasn’t willing to take the stand. She reminded them what I had said and the judge had instructed. She said it was to no avail, and they finally wore her down for a unanimous verdict. I did what I could to get that information before the court, but Oklahoma’s codification of Federal Rule of Evidence 606, which prohibits jurors testifying to matters or statements occurring during deliberations aside from a few exceptions, ruled the day.
After that trial, I had a bit of an existential examination. How could the jurors lie straight to my face? How could they disregard their oath and the instructions they received?
As Juror #2 shows, though, maybe there were other factors at play beyond my knowledge.
Still, it doesn’t make it right or OK.
Adam Banner
Adam R. Banner is the founder and lead attorney of the Oklahoma Legal Group, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.
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