| Source : The New York Times |
|
Jury consultants
The side show of jury selection
all too often takes over the circus in American trials. And the central
culprit in that takeover is the peremptory challenge, a practice by
which lawyers may exclude a certain number of prospective jurors without
having to prove, or even state, a justification. Since peremptory
challenges are not mandated by the federal or any state constitutions,
Congress and state legislatures could abolish them tomorrow. They
should.
It took Judge Lance Ito more than a month to pick the O. J. Simpson
criminal jury. Selection of the Martha Stewart jury took a full
week. When Judge Sim Lake of the Federal District Court in Houston spent
just one day picking the jury that is hearing the criminal case against
two former Enron executives, Kenneth Lay and Jeffrey Skilling, he drew
scorn from some defense lawyers, who seem to presume that fairness and
inefficiency are inseparable bedfellows. |
|
|
|
|
His lightning performance also drew praise
from some jury reformers, who have been calling for the application of many
of the techniques that Judge Lake used to streamline the selection process,
including limiting questioning by lawyers and having prospective jurors fill
out questionnaires before selection day.
But this debate has overlooked the real problem behind ponderous and
insulting jury selection. Peremptory challenges give trial lawyers the power
to manipulate jury membership by rejecting perfectly fair prospective jurors
for any reason or none, as long as the rejection does not smack of race, sex
or ethnic discrimination.
O. J. Simpson's lawyers and their jury consultants spent weeks poring over,
and following up on, the prospective jurors' answers to a questionnaire that
included such questions as "What is your political affiliation?" and "Do you
have a religious affiliation or preference?" The modern raison d'être of
these kinds of questions is not to discover disqualifying prejudice, but
quite the opposite: to allow lawyers to discover jurors they think are
secretly biased in their clients' favor while using peremptory challenges to
disqualify those they imagine are not.
Under current constitutional limitations, lawyers may strike you from a jury
pool because you are an Aries, but not because you are a female. But it is
impossible to ferret out the striking lawyers' real motives, in a system
that allows them to be completely irrational but not discriminatory. The
inquiry itself drives biased lawyers to fabricate non-discriminatory
pretexts. It is often difficult, even for the challenging lawyers
themselves, let alone trial judges, to know whether some deeply lurking
impermissible animus might taint gestalt judgments about particular jurors.
In one famous case, a prosecutor excluded two African-American jurors
because they had mustaches and beards that looked "suspicious." Is this
perfectly permissible stereotypical nonsense, or unconstitutional
stereotypical nonsense?
Even when they are not discriminatorily used, peremptory challenges are
inconsistent with the fundamental ideal that trials are about truth
detection, not about whose lawyer is the cleverest. The whole notion that
lawyers may apply their own home-grown stereotypes to excuse perfectly
impartial jurors, as long as those stereotypes do not touch on race, gender
and ethnicity, infects the jury system with a profoundly trivializing
gamesmanship. How can we expect the results of jury trials to be respected
as rational applications of the law to facts found by disinterested
citizens, when the process by which those citizens are selected devotes more
time and energy to discovering their taste in music than their ability to be
impartial?
For these and other reasons, some academics and lower court judges, jury
foes and friends alike, have long criticized peremptory challenges. But last
year, in a criminal case called Miller-El v. Dretke, Justice Stephen Breyer
became just the second sitting Supreme Court justice in history to call
formally, in a written case opinion, for the elimination of the peremptory
challenge (for the record, he cited my 1977 law review article on the
subject).
|