Though the mistrial in the Lindsay Clancy case was last month's news, the drama continues. The Massachusetts mother, accused in the deaths of her three children, rested her defense on claims of bipolar disorder and untreated post-partum depression. The defense convinced 11 of the 12 jurors to favor an acquittal, while the one holdout juror swiftly became the subject of intense public interest. Her defense counsel is now asking for a hearing early next month to consider testimony on external influences on the jury, testing the principle that a jury's deliberations should be inviolate. 

A jury is expected to conduct their deliberations and to complete its verdict under conditions of strict secrecy, free from the social pressure and influence that could accompany any degree of observation. At the same time, jurors serve a public function, and parties, as well as society in general, have an interest in what occurred, particularly when there are allegations of misconduct. 

Broadly speaking, the jury is a black box that the court and the press can only peek into under the most extreme and unusual circumstances. While the judge, the state, and the defense in the Clancy case will soon sort out what, if anything, should be done to look at the jury in this case, the situation raises the question of how much we can and should know about what happens within that box. Even in typical criminal and civil cases that attract far less scrutiny, it is important to have a clear idea of what we can know. 

While you can't record or otherwise observe jury deliberations (except as part of a unique Arizona experiment in the 90's), you can, with some estimations and reasonable approximations, still know a fair amount about what is likely to be going on within the black box. 

You Can Know Your Venue 

Attorneys can use their experience within a venue, and consultants can also tap into the aggregate verdicts and research within your trial venue. In addition, it has also become much easier to run community attitude surveys to assess the attitudes that jurors could bring to the case, and to identify likely reactions to the broad story of your case. 

You Can Know Your Case Reactions 

While you cannot replicate a full trial, a mock trial will point you toward the likely spectrum of juror responses to both the central stories being told by both sides, and to the key elements of evidence and testimony. For a more granular response, a shadow jury can give you a day-by-day and witness-by-witness view of what jurors are likely to understand and to see as credible. 

And (Unless the Court Prohibits It) You Can Talk To Your Ex-Jurors

While a post-trial interview with jurors is extremely unlikely to affect your verdict, it can be a very educational step. If the court allows post-trial contact, and if you are likely to have comparable cases in the future, then it helps to see what the jury has to say. Counsel should ideally use a consultant to conduct those interviews (so former jurors don't know which side they're talking to, and so they feel comfortable saying some of the things they wouldn't say to counsel), and should, of course, allow dismissed jurors to opt in or out of that kind of contact, with no pressure and no inducements. 

Ultimately, the black box of deliberations cannot always be opened, but when there is an opportunity to legally and respectfully peek inside, advocates should take it.