Podcast - The Jury Is the Audience
In the United States, a trial by jury is a familiar cornerstone of the justice process. In Uzbekistan, however, trials unfold in a different way. In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small shares his experience teaching the U.S. trial system in Uzbekistan by walking participants through the fictitious State v. Faulkner case as part of his pro bono work.
While working with Uzbek lawyers and judges, Mr. Small broke down how jurors are selected in the U.S., the role they play and how the judge functions as a neutral referee between the defense and prosecution. Through a mock trial, he demonstrated the U.S. system in action, ultimately resulting in a "not guilty" verdict – nearly unheard of in Uzbekistan's legal environment at the time.
Listen to the full episode to hear his reflections, key takeaways and the differences between the two countries' judicial systems.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: In this episode, we'll continue discussing the murder case State v. Faulkner and how I used it for my pro bono work in Uzbekistan. These episodes are based on my latest ABA book, "Lessons Learned from a Life on Trial."
In the U.S., we're used to seeing and hearing about juries. The challenge for trial lawyers is to break it down from a blob of strangers to real individual people. Juror No. 6, I always talk about. Who is he or she? Why are they there? What do they need from us? In Uzbekistan, trying the Faulkner case to a jury was going to be a completely new and foreign experience. Juries simply had not been part of their system of justice. But that was part of our menu of options from which we wanted to give them a taste.
We talked about the jury system, how jurors were selected, what their role was and how the process worked. Then, since we had more judges at the workshop than we needed for the trial, we turned a group of judges into the jury. As discussed previously, judges play a major fact-finding role in Uzbekistan, which made them the best candidates. So there they sat: 12 judges, transformed into jurors, performing a function previously unheard of in their system. Even judges as judges had to learn a new role because they had no real experience with adversarial trials. The Uzbek judges had no sense of the judge's crucial role as the referee between the two sides.
At first, the trial alternated between adversarial chaos and a three-way argument when the judge would intervene. I grabbed a maintenance man and, through an interpreter, asked for a hammer, fast. Then I brought the hammer up to the judge and explained the power and the importance of the gavel in an American courtroom as part of exercising impartial control over the process. Slowly, the judge caught on. The hammer came down and the judge regained some degree of control over her courtroom.
Of course, it was all new to the lawyers as well. Spending most of a trial communicating with a jury, mainly through questions to others and their answers, is without a doubt a bizarre way to communicate and certainly a difficult way to tell a story. We in the United States are more accustomed to it and to the thinking and planning it requires. But it's not a natural or easy way to tell a story. It's an essential part of the rules and rhythm we live by: question, pause, answer, stop. That seemed much too slow and too artificial for the Uzbeks.
At first, some of the lawyers would ask a question of the witness, get an answer and then turn to the jury and explain the significance. "You see, members of the jury, this shows that the defendant was really et cetera, et cetera." Pretty soon, the other side would object, backing their objections up with their explanations, and we were off to the races. Sometimes it took a while to get order, and it took even longer to get them to understand that, strange as it might be, that was not the trial process.
Think about how tightly orchestrated a trial is. It's nowhere near the freewheeling way that we carry on our normal lives and normal conversations. In a conversation, the person asking you a question is the audience. They're the one you're speaking to and hoping to be understood by. In a trial, the questioner, the lawyer, is not the real audience. The jurors are. But the jurors generally can't ask questions. It's an awkward, artificial process.
Finally, we put the Uzbek judges on the jury for the mock trial, mostly because we wanted a jury for the lawyers to speak to. And we didn't know what else to do with all those judges. We didn't fully consider the impact it would have on them. They were fascinated by the experience. Sometimes confused, sometimes frustrated, but focused and listening in ways they never would have as mere spectators. They desperately wanted to ask questions and were surprised when we explained that that was usually not the process. They were intrigued by the idea of deliberating, and they did so diligently. And then they surprised everyone. In a system where a defendant once charged is rarely found innocent, they listened carefully to our instructions on the burden of proof, which was all new to them, and the jury's role, and they came back with a verdict of "not guilty." I think even they were surprised.
I was fortunate to return to Uzbekistan several times and watch as these strange adversarial system ideas slowly took hold. But I will always recall that first mock trial, as we try to introduce two very different worlds to each other, piece by piece, step by step, witness by witness.