Robbins: Juries are Like a box of chocolates (Part 2)
Last week, quoting the esteemed philosopher and jurist, Forrest Gump, I wrote that juries were like a box of chocolates. You never knew which one you were gonna get. Then I went on to explain how, through history, juries came to be and how and why they fit into the American scheme of justice.
Even though I said that juries are like a box of chocolates, well, that’s not quite right. First there is the obvious; juries, and the jurors that compose them, are seldom rich and dark. And only rarely in this fractured society of ours — the dictate of a jury of one’s peers notwithstanding — is a jury predominantly Black. Too often, in too many jurisdictions, the wealthy and the well-connected find ways of begging out.
Still, with the materials one is afforded, there are ways to shape a jury.
First, there is the matter of who may serve as a juror. Well, there’s a statute for that, specifically Colorado Revised Statutes Section 13-71-105 which provides that a juror in Colorado may be “…any person who is a United States citizen and resides in a county or lives in such county more than fifty percent of the time, whether or not registered to vote…”
A prospective juror may be disqualified from serving if she or he is under the age of 18; is unable to read, speak, and understand the English language; is unable to serve by reason of physical or mental disability; has sole responsibility for the daily care of a person with a permanent disability living in the same household; resides outside of the county with no intention of returning at any time during the succeeding twelve months; has been selected and is currently serving in a trial or grand jury; has appeared before the court to serve within the last 12 months; or has been convicted of a felony.
If you make the cut, next is the matter of what’s known as “jury selection” which is how … um … jurors are selected.
The two linchpins of jury selection are juror questionnaires and voir dire. Taking these in turn, a juror questionnaire is precisely what it seems. It is, in the famous “Saturday Night Live” schtick words of Jon Lovitz, a way to “Get to know me!”
Juror questionnaires may be handed out to potential jurors not for the purpose of asking unnecessarily about personal matters but, instead, to simply aid in determining whether a perspective juror can — in the particular matter to be tried — decide the case fairly and impartially. Juror questionnaires are not made public.
Pencil nub rubbed raw, the next step is voir dire which means, literally, devolving from the French, “to speak the truth.” But rather than an inquisition, think of it, instead, like a job interview.
The interviewer in this case is the lawyer and the job applicant is the prospective juror. Voir dire is the process by which the prospective jurors are “examined” to explore their competence, biases, conflicts, prejudices, outlook, and those squishy intangibles which might persuade them to lean left, right, or tik-tok like a metronome.
The baseline question in the back of every litigator’s mind is this: “Will this potential juror be open-minded in considering my client’s version of the facts?” If the answer is yes, come to the front of the class!
But in a courtroom — as in life itself — things are is never quite so easy.
See, the other lawyer has some say-so, too. In a manner of speaking, what’s good for the goose is good for the gander. If the first attorney is clicking his heels happily together, you can bet the second lawyer will adopt a scowl.
You see, the other lawyer gets to interview the prospective jurors too. And like choosing up sides for a game of kickball, each attorney gets to make his or her picks. But rather than picking who she or he wants on the jury, the lawyers get to pick who it is they don’t want.
Usually an attorney may exclude a juror “for cause” without any limitation on the number of such exclusions. Say, a potential juror is the brother, sister, brother-in-law, sister-in-law, parent, child, aunt, uncle, neighbor, workmate or is otherwise closely associated with one of the parties. Thank you for your time but out you go!
Each of the lawyers may also exclude a preset number of persons from the jury pool for no reason whatsoever. At least no reason that the lawyer needs to disclose to anyone, not even the court. These exclusions —known in the legal vernacular as “challenges” — are called “preemptory.” Essentially, they say, “Hey you, out of the pool! And I can keep just why all to myself.”
A more unusual challenge is a “challenge to array” which, in essence, protests the entire jury “venire” (that is, the entire list of jurors in the jury pool) on grounds such as the systematic exclusion of women, African Americans, Muslims, young persons, etc. In other words, “Let’s drain the whole pool and let’s start over.”
Then there is the matter of “jury consultants” whose meaning is, once again, pretty intuitive. A jury consultant is one in the profession of sussing out what kind of person may be most likely to come down on your side in the particular case. Not only are these professionals generally magicians but, like David Copperfield or Penn and Teller, they are also quite expensive and are to be reserved for the “big case.”
However, if engaged, what they do is guide the lawyer who brought them to this particular dance towards the kind of person that their research has suggested will likely be most sympathetic to one’s cause.
While at first blush, this system may seem unfair — may in fact seem like stacking the judicial deck — what you’ve got to bear in mind is that the other attorney has all the same tools and, by tilt and toss, an equilibrium is reached. In the last analysis, the goal is to find a suitable and impartial jury of one’s peers so that justice can be fairly and impartially served.
Juries might well be like a box of chocolates. But sometimes, anyway, you may at least have some hint of what you’re gonna get.