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By: ANNE REED//April 27, 2009//


By: ANNE REED//April 27, 2009//

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Two jurors who fell asleep have been replaced at an Ohio financial fraud trial heavy in testimony about bookkeeping and check-writing.

That's the opening line from an Associated Press story out of Akron yesterday, but unless you're following that particular trial (of former executives of Evergreen Homes), the main thing that's newsworthy is that these sleeping jurors made the paper while other jurors slept in trials all over America.

It's been covered here before, but it's worth revisiting. If you're a trial lawyer, you've seen jurors sleeping. The key points are:

1. People are tired. Really, really tired. They're holding two jobs, or staying up late with kids, or standing up all day, or all those things. Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it's amazing they stay awake as long as they do. And like many things, our national fatigue is getting worse, not better. The National Sleep Foundation's 2009 survey concludes that "The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%." (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.) On top of our other worries, nowadays we're losing sleep over the economy. "One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns," the NSF said in March.

2. Fatigue affects decisionmaking. Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment.

3. You can often spot fatigue in voir dire if you remember to look. Tired jurors often look tired, will say they're tired, and will make you tired when they describe what they have to do in a typical day. You'll miss it if you're focus only on themes and attitudes in jury selection.

4. Sustained sleepiness is reason to dismiss a juror. In most courts and most states, this is a no-brainer. A dozing juror can't hear the evidence and thus cannot decide the case on the same evidence as the others. If a juror who keeps falling asleep isn't dismissed, it's usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5. You might be boring. As we've noted, people are tired, so if a juror falls asleep while you're talking, it's usually not entirely your fault. But think about whether it partly is. The juror was awake earlier, right? And if one juror slept through your expert's testimony, how many others daydreamed? Even if your trial is "heavy in testimony about bookkeeping and check-writing," like that Akron fraud trial, you need to figure out how to make it interesting — preferably before anybody falls asleep.

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