Juror privacy and voir dire, cont’d

by Walter Olson on August 31, 2008

If you apply for a job handling million-dollar financial exposures or life-and-death safety risks, your prospective employer generally won’t be allowed to ask at the interview what prescription medications you may be taking. On the other hand, if you’re called as a potential juror on a case, the lawyers may enjoy carte blanche to probe and dig to their heart’s content, and you may be obliged to answer the questions proposed by their jury consultants. “A secondary reason for asking is strategic — to bounce jurors they don’t want and use medications as an excuse.” How about requiring the voir dire inquisitors to restrict themselves to the same formulas employers are supposed to use to avoid ADA liability, e.g., “Is there any reason why, with suitable accommodation, you would not be able to concentrate, sit for long periods of time, apply unclouded judgment, and do the other things expected of jurors?” (Julie Kay, National Law Journal, Aug. 26).

{ 1 trackback }

September 29 roundup
09.30.08 at 10:51 pm

{ 10 comments }

1 Charlie Bratten 08.31.08 at 9:20 am

I always thought voir dire a gross invasion of juror privacy. It seems to me the only valid questions are legal qualifications such as age, citizenship, and residency, read and write the English language, no connections to judge, lawyers, plaintiff, defendent, etc. and a open mind.

Maybe the simplest way to end this invasion of privacy is make all the lawyers answer the same questions. Make each set of lawyers voir dire the other lawyers before they get their shot at the jury.

2 Todd Rogers 08.31.08 at 10:11 am

Forgive me for what maybe a pedestrian question here. Jurors are typically compensated for their time while serving, albeit little to very little money. As such, does said arrangement qualify as employment and thus make the courts subject to Title VII?

3 Harvey 08.31.08 at 10:37 am

I was asked about possible meds once during jury duty. Now, I wasn’t on any, but I still couldn’t resist quoting my 5th amendment rights. I got tossed from that jury.

4 Bob Neal 08.31.08 at 1:45 pm

Todd, who would the ‘employer’ be? If the court is an employer in this regard, the FLSA suits will be plentiful since neither minimum wages nor overtime are being paid.

5 Ed 08.31.08 at 2:11 pm

I agree with Todd. A juror is a temporary employee of the court system. Judges are required to protect the long suffering jurors from gross violations of their Federal ADA rights.

As a matter of fact, violation of jurors’ civil liberties are addition grounds for possible appeal.

6 Todd Rogers 08.31.08 at 2:27 pm

Bob. Might the employer not be the same one who pays the judge, the clerk, the military, and on..?

7 Bruce Lagasse 08.31.08 at 3:39 pm

I wonder if the motivation for invasive questions might vanish if the courts just did away with peremptory challenges altogether. That is, just go with the basic questions on legal qualifications as mentioned by Charlie Bratten. A “random jury of one’s peers” is hardly the case with lawyers basically hand-picking the jurors.

8 Charlie Bratten 09.01.08 at 10:06 am

I wonder what the reaction would be if a juror cited Roe vs. Wade as a universal right to privacy.

9 JTT 09.01.08 at 3:34 pm

Bruce Lagasse,

No one is entitled to “a random jury of one’s peers.”

Jury selection is not broken, it’s a system that works very well. Both sides usually get to knock off the other side’s kooks, leaving a pretty unbiased panel. There are always exceptions, usually resulting from overly friendly venues, but the system works very well. I have picked a lot of juries and have never felt like I picked one that was biased against me.

10 Deoxy 09.02.08 at 11:22 am

JTT,

You are either horrendously naive or being dishonest.

The statistics on who gets picked for juries, the VAST volume of data on how to pick juries most likely to side with you, and the huge amounts of money spent on jury selection experts each provide ample rebuttal to your claims on their own.

On the statistics point, in particular, are you stating that the well-educated are disprotionayely “kooks” (for one side of the other) or biased? Because the better one’s education, the more likely one is to be excused from jury duty…

The system IS broken, and badly so.

Comments on this entry are closed.