Here’s a free trial advocacy tip: the next time you’re selecting a jury, you might want to ask if anyone on the panel is feeling drowsy.
This might avoid embarassing distractions once the trial gets underway.
It seems more and more jurors are nodding off in courtrooms. It’s happening here in the U.S. and overseas. And some expect the problem to get worse in this digital age of short attention spans.
Recently in federal court in Manhattan, a juror was dismissed for nodding off throughout the four-week criminal trial of a Turkish banker. This shouldn’t have come as a big shock to anyone who had been paying close attention to the case. In voir dire, the juror had answered “sleeping” when asked what he liked to do in his spare time.
In December, a juror in federal court in Brooklyn was tossed for slumbering during a FIFA corruption trial.
And two years ago, the judge in the high-profile General Motors ignition switch litigation brought a juror into the courtroom for questioning after he noticed she’d been “having some trouble staying awake” during the trial. He ended up excusing her to go home and resume her repose.
But my favorite recent case of dozing jurors comes from across the pond in Southampton, England, where a wave of sleepiness swept through a jury box, forcing the judge to halt the proceedings and issue a wake-up call.
Audible Snoring and Head Lolling
There are many pleasures to be derived from reading the Britain law site Pump Court Chambers, including references to bailiffs as “ushers” and “defence” spelled with a “c.”
A recent post covered a trial where two jurors kept closing their eyes for “ever lengthening periods.” Various people in the courtroom observed “audible snoring by juror #4, eyes closing and head lolling on shoulder by juror #2.” The judge, however, had not noticed, being too busy “taking an accurate note.”
Matters came to a head the next day when more sleeping occurred and “Juror #4 woke himself with a disconcertingly loud snore.”
From Pump Court Chambers: “The situation was discussed and at close of the break the Judge, at the invitation of Counsel for Crown and Defence, explained to the jury the importance given their oath … to follow all the evidence and asked the jury to say if any of them had indeed had any such difficulty. Initially juror #4 did not join in the general assent, nodding in affirmation as the jury confirmed they felt they had been able to follow everything thus far, although juror #2 seemed entirely lacking any self conscious feeling as she vigorously nodded.”
The judge wound up dismissing one of the two sleepers, finding “the delay in juror #4’s reply that he had followed all the evidence in comparison with juror #2’s alacrity in assent as persuasive in distinguishing between the jurors.”
Let Sleeping Jurors Sleep
Of course, jurors have been nodding off as long as lawyers have been making boring arguments.
There are different methods for keeping them alert.
“One strategy that could help jurors stay awake is to allow them to take notes,” says this ABA Journal article. “Veteran attorneys employ other strategies. They may ask for a break before an important witness testifies, call a witness testifying about a boring subject in the morning rather than the afternoon, and talk loudly while standing next to the jury box. Some judges take another tack: They make eye contact with an awake juror next to the sleeping one, and motion the juror to awaken the sleeping person.”
But what if it’s the judge who nods off? One suggestion from the Journal piece: yell “objection” really loud.
- Reuters https://www.reuters.com/article/us-usa-turkey-zarrab/u-s-jury-finds-turkish-banker-guilty-of-helping-iran-dodge-sanctions-idUSKBN1ES1D0
- New York Journal (subscription required) https://www.law.com/newyorklawjournal/almID/1202752497560/
- Pump Court Chambers http://www.pumpcourtchambers.com/blog/let-sleeping-jurors-lie