Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

2. Selecting Fairness

27 2 Selecting Fairness A Faith As you wait to see if you will be selected as a juror, look around the courtroom. Study the parties at the table. What does it say that every time two litigants appear for trial, we know one side will lose? Both sides walk into court knowing at the outset that one side will lose, yet they still show up. The stakes are even higher for criminal defendants. But day after day, both sides still appear, hopeful that they can win. The genius of our jury system was to set up a mechanism so that both sides believe that they have a fair shot at winning the case. They show up because they have faith that the system will be fair. As a juror, your task is to make sure that such a faith is well placed. But what do we mean by fairness? For a criminal case, one answer is right there in the Sixth Amendment—“an impartial jury”: 28 / Selecting Fairness In all criminal prosecutions,the accused shall enjoy the right to a speedy and public trial,by an impartial jury of the state and district wherein the crime shall have been committed ... Interestingly, an impartial jury is a far stretch from the earliest practice of juries. Originally, the tradition was to summon jurors who knew the parties to the case personally .1 During the early reign of King Henry III, the jury consisted of witnesses who knew the litigants, the community , and the facts.2 In the small, insulated villages of England, it made sense to allow the townsfolk who knew the parties best to decide the dispute using personal knowledge of the events. Over time, however, this practice shifted so jurors (now seen as independent judges)3 were called to settle disputes because they had no prior knowledge of the parties.4 By the time the jury reached America, the adversarial system had been adopted, and the goal was to find a fair and impartial jury “of one’s peers” to resolve the dispute.5 What do we mean by impartial? If you ask the Supreme Court, “impartial” means two things in the context of jury selection. First, the jury must be selected out of “a representative cross section of the community ,”6 meaning that the jury panel must be composed of a mix of all types of people living in the community.7 The focus is on the jury panel (or “jury venire”) as a whole and not on the actual make up of any specific jury. So, you may end up with a jury of all women, but as long as the jury panel from which the all-women jury was selected had a roughly equivalent number of men and women, there is no constitutional defect. The Supreme Court has held that a defendant must show a systemic exclusion of a distinctive group from the panel to raise the claim of an unrepresentative (unconstitutional ) jury.8 Selecting Fairness / 29 Second, the individual jurors must be unbiased, showing no personal favoritism or antipathy toward the parties .9 In other words, a lawyer’s mother, next-door neighbor , or archenemy would be “struck” as not being able to be fair to the parties. Jurors who demonstrate they cannot be fair due to a connection or predisposition to the case are struck for “just cause.” As a practicing lawyer, I had a slightly different definition of an impartial juror. It has to do with openness. I looked for “bright eyes”—a term that comes from a client who once turned to me and said, “Keep her, she’s got bright eyes,” meaning that the juror’s wide-open earnest eyes and eagerness were so apparent that we knew she would be fair. In all other respects, she was a person I would have kept off the jury, but I deferred to my client . Empirical studies have validated my client’s intuition (as did the jury verdict in that case). Scholars who study jurors have concluded that “attitudes tend to be more powerful predictors of verdict choices than demographic characteristics.”10 Voir Dire So, what happens as you wait to be selected for a jury? You go through a process of jury selection called “voir dire.” The term refers to the oath to tell the truth,11 but in practice it is a way to find those individuals who can...