Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Fall 2016, Vol. 42, No. 3 | Page 15

olition . He stated that the jurors can ’ t understand the evidence or the law and in lengthy cases can ’ t remember what was said , can ’ t distinguish between what is true and what is false . It isn ’ t fair , said Baker , that juries be criticized for individual members , when it ’ s the collection of all twelve that decides on a verdict , “ the aggregate knowledge , judgment and experience , not the average of the twelve men , that decide the case .” 11
Innovations
In the Patten trial in Barre , notepads and pens were set on each juror ’ s seat , and the jury was allowed to keep notes on the evidence as it was presented . These notes would be destroyed after the verdict was rendered . This note-taking practice was introduced about 20 years ago . In 2001 , a defendant challenged the court ’ s decision to permit note-taking . The Vermont Supreme Court , after acknowledging that no statute , rule , or former judicial decision allowed it , agreed it was allowable in the sound discretion of the presiding judge . 12
The documentary evidence , including the video , were also brought into the jury room after the case went to the jury . In an essay entitled , “ What is Obviously Wrong with the Federal Judiciary , Yet Eminently Curable ,” Judge Richard Posner suggests that jurors ought to be able to ask questions of witnesses and suggests the jury be given transcripts of testimony for use in deliberation , in federal court trials . 13 Vermont state courts have dispensed with court reporters , making this impossible at present . But the Supreme Court has approved jurors in criminal cases asking questions , through the judge , after the question has been disclosed to parties who may request the question be narrowed or rephrased . 14 Juries may also ask questions , in writing , after the evidence is closed , while deliberating , submitted in writing to the court . These changes are evolutionary .
Neutrality
Shame is missing from the criminal process . That belongs in the pulpit , the confessional , the common scolds of cable news , and the public reaction to bad conduct . The criminal process is designed to punish , not out of vengeance or retribution , but to correct the behavior of the defendant and ensure that the criminal laws are obeyed . This is the law and this behavior justifies punishment is the object of the prosecution . This is the law and this behavior does not justify punishment is the message of the defense . The process is by its nature fact-specific .
What is curious is how the criminal trial seems less adversarial than the civil trial .
There is no shouting , no interruptions , no sarcasm or slams at the opposing side . It ’ s a well-rehearsed drama , the players seasoned in their performances . That so much of the administrative workings of the criminal jury system have been left to sound discretion , rather than being included expressly in the Rules of Criminal Procedure , is curious . As with the civil law , many of the fundamental practices that make the criminal process work are based on custom or the preferences of individual judges . Model jury instructions have made the process more uniform and resistant against attack on appeal .
There are no rules for deliberations . The judge appoints the foreperson , gives instructions , assembles the evidence , and the jury marches back into its room to decide whether the defendant is guilty or not guilty . 15 That is the way it has been since the earliest times , and there is little likelihood that will ever change . We will always have jury trials . As rare as they are , they serve their purpose . ____________________ Paul S . Gillies , Esq ., is a partner in the Montpelier firm of Tarrant , Gillies & Richardson and is a regular contributor to the Vermont Bar Journal . A collection of his columns has been published under the title of Uncommon Law , Ancient Roads , and Other Ruminations on Vermont Legal History by the Vermont Historical Society . ____________________
1
Having the instructions to follow as the court reads them is not a universal practice in Vermont , but it has a tradition . State v . Camley , 140 Vt . 483 ( 1981 ).
2
Vermont Judiciary , FY15 Statistical Report , Appendix . https :// www . vermontjudiciary . org / JC / CourtStatistics . aspx
3
State v . Peterson , 41 Vt . 504 , 519 ( 1869 ).
4
State v . Ibey , 134 Vt . 140 ( 1976 ).
5
State v . Conn , 152 Vt . 99 ( 1989 ).
6
State v . Pecora , 181 Vt . 627 ( 2007 ).
7
Henry Reed , trans ., Alexis de Tocqueville , Democracy in America I ( New York : George Allard , 1839 ), 279-281 .
8
Quoted in T . Ward Frampton , The Uneven Bulwark : How ( and Why ) Criminal Jury Trials Vary by State , California Law Review 100:1 , 186 .
9
Joel K . Baker , The President ’ s Address , Officers and Members : Reporting of the Proceedings of the Annual Meeting III ( Montpelier , VT : Vermont Bar Association , 1892 ), 42-57 .
10
Conrad Reno , Memoirs of the Judiciary and the Bar of New England of the Nineteenth Century I ( Boston , MA : Century Memorial Publishing Company , 1901 ), 77-86 .
11
Baker , supra , at note 9 .
12
State v . Hendricks , 173 Vt . 132 , 141 ( 2001 ).
13
Richard Posner , What is Obviously Wrong with the Federal Judiciary Yet is Eminently Curable I , 19 Green Bag 2d 187 ( Winter 2016 ), 192 .
14
State v . Doleszny , 179 Vt . 203 , 212-216 ( 2004 ).
15
I use “ its ” intentionally here , as I believe the process ensures that instead of 12 individuals that the jury will act as one organism in reaching a verdict .
Ruminations www . vtbar . org THE VERMONT BAR JOURNAL • FALL 2016 15