November 15, 2004
YOU Could Be a Runaway Juror!
November 15, 2004 09:41 PM
This NewBlueShoe post on his feelings after convicting a man -- not as a prosecutor, but as a juror -- reminded me of a question I'd been carrying around: are people trained in the law (law students, clerks, lawyers, judges, professors) better than the general public about showing up for and not trying to plead their way out of jury service? And do they get discriminated against by either side in jury picking?
I have no data on the first question, but I would like to think that the answer is yes. Considering that nearly all law stems from the facts found at jury trials, even if it is made on appeals, we should have some sense of obligation to play our part in the system. Still, the scornful attitude toward people who end up on juries -- I'm thinking of the comment here that "As to juries, I don't hold them in contempt... I hold the jury selection process in contempt. It allows lawyers to stack the jury which the lesast intelligent and the most easily manipulated" -- makes me wonder.
The conventional wisdom on the second question, according to one of my professors, is that both sides generally dislike having a legally-trained person in a jury because they worry that she will dominate proceedings. However, if one side thinks that its case would be overwhelmingly favored by the trained person, it will push to have her on the jury. My professor said that he'd once gotten very close to serving on a jury, and then the case was thrown out. He was really broken up about it, too.
My own feelings, after talking with a bunch of people about it, is that lawyers on juries are good. First, they have life experience, which is number one in selecting jurors. Second, they know what's up with legal arguments, burdens of proof, and would probably be less likely to speculate about unknown facts. Third, lawyers are generally intelligent and may be better at articulating their decisionmaking process for the benefit of other jurors. This could benefit either side, so I don't see why lawyers would (or should) get kicked more frequently than others.
What I would really worry about are college-age kids who want to be lawyers. Amateur detectives who play Law & Order on the jury are bad news.
As to lawyers stacking juries with the least competent, it must be kept in mind that with the adversarial system there are competing lawyers on each side of a trial. Plaintiff's lawyers do not dominate; equal opportunity is given to defendants' lawyers to dumb down the jury.
Here in Massachusetts, it has only been in recent years (8? 10?) that lawyers are eligible for jury duty. I have been called about 4 times for "one-trial" jury duty. But only one time was my number called; and then a peremptory challenge outed me. The general practice of trial attorneys in MA is not to have attorneys on their juries. I was not trying to duck out of jury duty, but it seems so meaningless to show up and be bumped just because I am an attorney. So I took advantage of the three score and ten rule and will not be called again.
Another thing: in MA jury duty is not compensated by the State unless a juror serves in excess of three days. For that three-day period, the juror's employer may be obliged to pick up the tab. But this leaves the self-employed without income.
I did find that my experience led me to repeatedly remind the others that they were not allowed to be speculating, that they had to proceed on the basis of what had been shown at trial, and so on. That said, the judge's words on "inference" undercut my position with the others; despite my insistence that inference was not such a big leap, the judge's "permission" to make logical leaps allowed a man holding lots of miniature paper bags and a lot of $10 bills to be conceived of as a drug dealer, absent any explanation from either the government or the defense.
In other words: my training did rein some people in, but the judge's greater authority allowed them more leeway.
When I first started practicing criminal defense law in 1981. I decided to look into the Psychological abstracts for information useful for selecting juries. I discovered to my surprise a number of research studies that indicated that the more educated the jury the more likely he would have a reasonable doubt. Upon reflection, I realized that modern science education makes one particularly skeptical of common sense solutions. Given this information, I chose with what I believe was good success to eliminate the least educated and those whose education was more shall we say faith based. That being said, my jury preference would skew the jury to the more enlightened. As to lawyers serving, since many of them are very conservative as a rule I would avoid them.
On eliminating "those whose education was more shall we say faith based", what information was provided to you about prospective jurors that would accommodate such a strategy? Voir dire? (I'm sure it wasn't observing their haloes.)
My securities fraud class is cancelled tomorrow because the professor has jury duty. I've often heard that lawyers rarely serve on juries, but apparently there are exceptions.
Dear Shag of Brookline, you wrote:
"On eliminating "those whose education was more shall we say faith based", what information was provided to you about prospective jurors that would accommodate such a strategy? Voir dire? (I'm sure it wasn't observing their haloes.)"
The answer is easy, it wasn't their haloes, it was their bibles that they carried into the jury box with them.
Now you know how to get out of the box.
I am involved in a case appeal where not 1 but 3 attorneys were allowed on the jury in a racial discrimnation case. This seems very improbable that even 3 of the 18 prospectives would be attorneys.
The foreman was a woman attorney who works for the State of Kansas SRS and dominated the deliberations according to another juror (she made these comments after the trial. It only takes 10 of 12 jurors to find in a civil case in KS, so on a 10-2 vote the jury found for the plaintiff. The defendants were NOT allowed (by the judge in pre-trial motions) to learn the plaintiffs, who alledged discrimination were not financially qualified and had been evicted from a previous apartment complex.
The City of Lawrence, KS invested heavily in the case, since their case worker did not do a very good job of initially investigating the complaint and the qualiofications of the complainants, hence didn't have a prima facie case, but emphasized the difficulty in proving "passive discrimination."
Ironically, the Apt. manager (defendant) attends the most multiracial church in Lawrence, but has strong religious beliefs against unmarried persons living together. Several other married mutiracial couples reside in the apt complex.
I have found that 36 0f the 50 states allow attorneys, police officers and other officers of the court to serve on juries, but most states have 'exemptions' which allow any attorney to exclude him/herself. Almost all practicing attorneys exclude themseves citing conflict of interest.
Also, most of the states which do allow attorneys to serve as jurors just recently allowed this practice (last 3-12 years).
The defense attorney in the trial ran out of peremptory challenges, while the plaintiff's attorney did his best to keep all attorneys on the jury, even thaough two worked for the State of Kansas and had contact with the City of Lawrence's Human Relations Commission, which handled the suit for the complainants.
It seems to me a clear conflict of interst and two of the attorneys on the jury did NOT reveal their conflict during voir dire.
Any thoughts on the case, or further info on which states allow attorneys on juries and when they began to let them on?
Craig @ Kansans for Common Sense and Accountability