Jurors witness horror on a regular basis. At the close of the Boston Marathon bombing trial, prosecutors pulled out the clothing and possessions of eight-year old victim Martin Richard. Item by item the last shreds of a boys’ life were introduced in excruciating detail—a bloody jersey, bomb-melted shorts, metal, wood, and the devastating shrapnel that tore the breath away from a smiling child. The jurors wept openly in court.
How should jurors—ordinary citizens doing extraordinary duty—cope with this emotional toll? How should courts respond? While the facts in the Dzhokhar Tsarnaev trial were more difficult than most, confronting tragic loss, disfiguring injury, and death remains a routine part of jury service in America.
Jury service is stressful. Jurors internalize both the difficulty of deciding another’s fate, as well as the emotional toll of bearing witness to tragic events. A National Center for State Courts report found that 70 percent of all jurors feel some stress. Yet the greatest difficulty often lies in homicide and death penalty trials, in which jurors not only share the burden of imposing guilt (or even death), but are necessarily confronted with the loss of life that led to the case. Some jurors even report physical ailments, including headaches, nightmares, and symptoms consistent with post-traumatic stress disorder.
The reason: Jurors receive little preparation for the traumatic evidence at trial, and are provided inadequate resources during trial. This lack of attention stems primarily from the limitations of the trial process. Judges naturally avoid warning jurors about upcoming evidence for fear of influencing the jury’s evaluation of that evidence, and counselors cannot consult with jurors during the trial without interfering with the jury’s decision-making. Worse, admonishments not to discuss the testimony or evidence with family or friends means that jurors go through the trauma largely separated from normal emotional supports.
Even after cases conclude, courts proceed cautiously with offering counseling services for fear of unsettling final verdicts. Because most convictions result in criminal appeals, any process that reveals the feelings and thought processes of jurors might also provide an argument to challenge the jury verdict. In addition, jurors quickly disperse back to their communities, providing little practical opportunity to provide counseling services. Finally, in an era of growing juror apathy, courts would rather not advertise the possibility of nightmare-inspiring testimony that awaits citizens.
Despite the difficulties, some courts have begun to offer post-trial counseling services modeled on other post-trauma assistance to first-responders and the military. The federal courts have even developed a process of “critical incident debriefing” for federal jurors in high profile cases. State courts in Texas, North Carolina, and Minnesota, among others, have also begun experimenting with similar counseling programs. Yet these innovations reach only a handful of citizens, and difficulties with funding and logistics have prevented these services from becoming the norm.
If courts are interested in addressing juror trauma, they can start by borrowing from the well-developed literature on trauma recovery. Instead of discouraging jurors from sharing their experiences, courts could look for a way for jurors to express their emotional reaction after the verdict. Isolation and withdrawal heightens the negative effects of trauma. Finding constructive and safe ways for jurors to talk about what they experienced would help them heal, while also furthering the public witnessing purpose of jury trials. Courts might create juror support groups consisting of former jurors, develop juror forums in which they could share their experiences, or simply encourage jurors to talk with family, friends, and the community.
Courts might also expand post-trial counseling services beyond high-profile cases. Most homicides, sexual assaults, and violent crimes involve potentially traumatizing testimony that hits far deeper than the special victims unit violence regularly broadcast on TV. Jurors could be given the opportunity—if requested—to address some of the consequences of this violence on their lives. These juror recovery programs could pay for professional counselors who can identify and respond to the distinct trauma of jurors.
But we all have a role to play in this process, by appreciating jury service in a far more public manner. The Tsarnaev jurors represented all Bostonians by sitting in judgment. Such service—witnessing terrible tragedy, balancing life and death decisions, and representing the community in a final legal outcome—is a profoundly patriotic act. Reinforcing that point can give jurors a sense of service to counterbalance the trauma they may endure.
In Boston, at least, this message has gotten through. Judge George A. O’Toole Jr. foresaw the testimony awaiting the Tsarnaev jurors and arranged for federally funded counseling services to be made available. Addressing these realities in all trials, not just the high profile cases, would go a long way to improving the experience of jurors on jury duty, and the image of jury duty in the community.