In a highly entertaining lecture at the University of California, law professor Irving Younger gave his “Ten Commandments of Cross Examination.”
His “First Commandment” was this: Be Brief.
Failure to abide by Younger’s First Commandment at trial could lead to jurors losing focus or, even worse, losing consciousness.
This week, the Appeals Court considered an appeal from an OUI conviction in district court. During the district court trial, a juror was seen “nodding off” several times through the proceeding.
Eventually the trial judge called the attorneys to sidebar to discuss the issue. His solution was to ask the jurors to collectively take a break from sitting, stand up, and stretch for a moment.
Neither attorney objected to this. Nor did either side ask the judge to speak with the juror (i.e., conduct a voir dire).
The trial resulted in a conviction which the defendant appealed. On appeal, his attorney contends that “the judge erred in failing to conduct a voire dire of a juror who appeared to be nodding off.”
First, the Appeals Court recited the relevant case law–which is surprisingly ample–regarding sleeping jurors:
[A] judicial observation that a juror is asleep . . .requires prompt judicial intervention. However, “[n]ot every complaint regarding juror attentiveness requires a voir dire.” A judge has considerable discretion in addressing such a problem.” Where, as here, the defendant contends that the judge’s response was inadequate, “[t]he burden is on the defendant to show that the judge’s response to information about a sleeping juror was ‘arbitrary or unreasonable
The Appeals Court then concluded that the trial judge’s actions in response to the sleepy juror were adequate:
The defendant has not satisfied his burden in this case…After observing the juror appearing to “nod off,” the judge reacted promptly by inviting the jurors to stand and stretch…We conclude that the judge was in a superior position to observe and assess the juror’s attentiveness, and his chosen intervention was within his discretion.