Day on Torts
Attorneys for one of the defendants convicted of raping an unconscious student intends to file a motion for a mistrial based on juror misconduct. Specifically, the juror in question was a rape victim and allegedly failed to disclose that fact during voir dire questioning. Defense attorneys contend the juror was asked about past experiences with the criminal justice system as either a victim or defendant, and this juror failed to respond. Yet, an attorney for the juror has issued a statement there was not any misrepresentation.
Of course, this situation is every trial lawyer’s nightmare, right? There are two possibilities here. First, as the defense contends, the juror concealed her past in the face of a question specifically posed to unveil such an issue. This scenario is a nightmare mostly for the prosecution as now they have a new issue to handle on appeal while trying to hold on to the guilty verdict.
The second possibility is the defense lawyers did not ask the right question to elicit the juror’s past as a rape victim. If this juror did not report the rape to the police, then it is unlikely she had any interaction with the criminal justice system as a victim. Since rape is thought to be one of the most underreported crimes with only about 16% of victims reporting, this scenario is more probable than possible. Needless to say, this is the defense lawyer’s worst nightmare because he failed to simply ask whether any prospective juror was a rape victim. Instead, he asked a much more general question.
Voir dire is your chance to ferret out any jurors who might be predisposed or biased against your client’s case. One can hardly imagine a situation in which an alleged rapist would want a rape victim on his jury. But in order to uncover that juror, the questions must be concise, direct and specific and the juror must be honest. So, we will wait and see how it came to pass that this juror was ultimately seated.
Of course, the same situation can arise in a civil case. The Tennessee law on this subject in civil cases is addressed in Chapter 4 of my book, Tennessee Law of Civil Trial.