The jury found her guilty.

Then, after the verdict was read, the foreperson of the jury sent a note to the judge.  It explained the reason why they found her guilty.  The jury believed her testimony that she didn’t know she hit a human but found her guilty because she hit a vehicle instead and failed to stop and report it.

So, what’s so unusual about this?

1.  Jury Instructions.  The judge read the relevant law for the case to the jury which then had to apply it to the evidence the two sides had presented during the trial.  In the Amy Senser trial, the instructions said they could find her guilty only if the jury was convinced beyond a reasonable doubt that Amy Senser either:

–Hit a person, knew she hit a person, and failed to stop and report it or,

–Hit a vehicle, knew she hit a vehicle, and failed to stop and report it.

2.  Prosecutor only charged the first one:  Amy Senser hit a person.  The juror’s note said they believed Amy Senser’s testimony that she didn’t know she’d hit a person.  However, they were convinced beyond a reasonable doubt that she knew she hit a vehicle.

Is there a problem with this?

The unusual aspect to this is that no one, either prosecutor or defense lawyer, offered any evidence of Ms. Senser hitting a vehicle!!  (There was some evidence that she hit the side-view mirror of the victim’s car, but experts said the mirror couldn’t have caused the extensive damage to Ms. Senser’s car)  So, was the jury’s decision wrong?

I’ve worked as both a prosecutor and defense lawyer for over 30 years and tried dozens of jury trials.  What’s always amazed me is that juries make all kinds of decisions based on whatever parts of the evidence they choose to focus on.  It’s been my experience that all the lawyers and judge can focus on particular evidence and issues in a trial that they assume are key to reaching a verdict.  Then, juries pick an issue that no one expected.  It happens often.  For better or worse, this is how our justice system works.

In many trials, the reason for the verdict surprises the lawyers who presented the evidence.  We can see how this occurred in the Amy Senser trial.  Is the jury’s decision wrong?  No–it followed the legal instructions given by the judge, but they seem to have “found” their own evidence to support the guilty verdict.

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During the trial, Ms. Senser’s defense was that she didn’t know she’d hit a human being.  Therefore, she couldn’t be guilty of leaving the scene of an accident  and failing to report it for several days.  Expert testimony provided by the prosecution, showed that if she hit a human, the body would have rolled up on the hood of her car and fallen off to the side–therefore, there’s no way she wouldn’t know that she’d hit someone.

The jury didn’t believe her and found her guilty of the two serious felonies.  In the meantime, because I’ve worked for over 30 years as a prosecutor and defense lawyer, many people asked me about the trial.  One of the most interesting questions I received was:  Do you think Amy Senser lied?  And if she did, how could she do that?

I know from my experience and study of psychological research that there are some people in the world who can lie without any hesitation.  They’re called sociopaths or psychopaths–meaning they don’t have a conscience like you and me.  So, for them lying is not even an issue.  Since they don’t care what the truth is and don’t care how it affects anyone else, they can lie convincingly.  I don’t know if Amy Senser is a sociopath; I doubt it.  So, she probably wasn’t intentionally lying.

Then, how could her story be so different from what the experts say probably happened?

I think it’s easy to explain and I’ve seen in with defendants that I’ve represented.  Let me give you a good example.  Often, when representing men charged with criminal sexual conduct against children, they usually deny it completely.  Even if I show them the evidence, which often is overwhelmingly against them and read the reports with them, they still maintain their innocence.  Eventually, it comes out:  they say, “I’m not guilty because I’m not that kind of person that could do those horrible things to kids.”

That’s the key to my point about lying.  It starts with the normal human tendency in all of us to minimize or explain away things–even when we know we’ve been caught and are guilty.  “I was speeding but so was everyone else…”  We all want to tell the truth but, at the same time, there’s an unconscious need to avoid punishment so we began to weave excuses in our mind or we even start to remember the events differently.  We may not even be aware of this shift in perception.  Days or months later, we’re solidly convinced of our innocence.

This is what may have happened to Amy Senser.  For months before the trial, the lawyers told her the penalties, the difficulties of the trial, and, in her mind, I’m sure she thought about the fact that she may have actually killed someone.  That’s difficult knowledge to carry around so the human mind starts to work on it.  Little by little, the mind remembers small facts differently until much later, we’ve convinced ourselves that it didn’t happen the way the evidence shows or the experts say it did.  In our mind, we firmly believe that we are innocent.

And if called to testify, we aren’t lying, we’re telling the “new” truth as we remember it.

The post Amy Senser Found Guilty appeared first on Colin T. Nelson.

In order to find her guilty, the jury must decided that the government has proved beyond a reasonable doubt that Ms. Senser knew she had struck the man.  Her defense is that she thought she hit a highway plastic cone.

To prove their case, the prosecution brought in an expert from the state highway department to demonstrate and testify that in this situation, when Ms. Senser struck the victim, the body would have rolled up over the hood of the vehicle and fallen off to the side–therefore she couldn’t have missed knowing that she struck a person.  He also based his opinion on the significant damage done to her vehicle.

So, how does a person become an expert witness?  How can they testify?

In Minnesota, the Rules of Evidence, Rule 702, says the judge may allow expert testimony as follows:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.  The opinion must have foundational reliability.”

Before the “expert witness” is allowed to testify in front of the jury, the party offering the evidence must convince the judge the witness qualifies as an expert.  The rules go on, in comments, to say: “The qualifications of the expert need not stem from formal training and may include any knowledge, skill, or experience that would provide the background necessary for a meaningful opinion on the subject.”

From my own experience as both a prosecutor and defense lawyer, experts are powerful witnesses–because the are experts.  Jurors tend to give a lot of attention and credit to whatever they say.  Not only because of their expertise on a subject but also because they are often unbiased, neutral witnesses.  It makes their testimony more believable.

I suspect the verdict in the Senser trial will turn on the expert’s testimony about the victim’s body coming up over the hood, across it, and then falling to the side.  The defense did not offer an expert to counter the government’s witness.

Do you have any idea what the verdict will be?

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