It’s not a new idea for reform — I suggested it as my contribution to a book fifteen years ago, it had been kicked around for decades already at that point, England has done it, and we’ve discussed it here. But the route of making progress, as befits our age of anti-discrimination, has been the piecemeal extension of so-called Batson challenges in which it is argued that lawyers used their peremptories to exclude a protected demographic group. The editorialists of the L.A. Times discuss the latest, a Ninth Circuit ruling extending the list of forbidden categories to include sexual orientation.
Jury selection, or de-selection, begins in the George Zimmerman-Trayvon Martin murder trial. The quote above comes from potential juror B37, regarding her consumption of newspapers. [Washington Post; my two cents a while back on jury selection]
A man who showed up at court in Springfield, Mass. to deal with a traffic ticket mistakenly wound up on a jury. The jury proceeded to hear the evidence and closing statements and convict the defendant; the judge declared a mistrial after it emerged that the man, who spoke limited English, had gotten on to the panel by accident. [MassLive]
In 2006, I wrote:
In May 2001, Cheryl Jane Hale was driving four children to a sleepover in her 1987 Ford Bronco. She didn’t bother to have the children wear their seat belts, so, when she took her eyes off the road to argue with the backseat passengers, and thus drove off the road and flipped the car, 12-year-old Jesse Branham was thrown from the car and suffered brain damage. A jury in Hampton County, South Carolina (the second jury to be impaneled—the first one was dismissed in a mistrial when it was discovered after two weeks of trial that five of the jurors were former clients of Branham’s lawyers) decided that this was only 45% Hale’s fault, held Ford 55% responsible, which puts Ford entirely on the hook for $31 million in damages.
On Monday, the South Carolina Supreme Court reversed because of prejudicial closing arguments that relied heavily on inadmissible evidence. More importantly for lawyers practicing in South Carolina, the Court adopted “the risk-utility test with its requirement of showing a feasible alternative design.”
How bad of a judicial hellhole is Hampton County? Though Hale was a co-defendant, she cooperated with the plaintiffs throughout the trial in their case against Ford, even sitting at the plaintiffs’ table; but because the judge classified Hale as a co-defendant, it meant that Hale got half of the peremptory challenges of the “defense.” More from Comer; no press coverage that I’ve seen yet. (cross-posted from Point of Law)
They’re felt more than ever in today’s economy, notes Amy Alkon.
I’m on record as saying I wouldn’t mind if they were abolished entirely, although the idea floated by Iowa lawprof in Nathan Koppel’s WSJ article yesterday, of limiting them to three per side, seems like a plausible compromise. (A further possible refinement: excusing more juror prospects if both sides agree in wanting them off the case).
Most of the lawyers who are blogging in response to the Koppel article, however, take a position sharply different from mine: Patrick and Ken at Popehat, Scott Greenfield, Mark Bennett (and further). (More: WSJ law blog.) Deadline pressure doesn’t permit me to join in, but anyone interested in the issue will want to follow the discussion. Earlier mentions on this website are here, including a discussion of England’s near-abolition of the practice in 1989.
I made a few favorable remarks about streamlining jury-selection (voir dire) procedure the other day, Houston criminal defense lawyer Mark Bennett expressed an emphatically contrary view that “Streamlining of the justice system will be the death of freedom,” and several others weighed in, including SSFC (Patrick). Many of the posts are memorialized at Nicole Black’s Legal Tweets. It was also agreed (in posts not included) that civil and criminal jury selection raised at least somewhat different issues.
After all, that’s the way to disqualify them: “If he speaks long enough, he might say something that lets you strike him for cause, too.” (Trial Theater, Oct. 24).
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).