SHOULD THEY STAY OR SHOULD THEY GO NOW

Released Wednesday, 23rd January 2013
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JURY DUTY AND JURY SELECTION


As lawyers gain more experience they become aware of what type of people they relate to and what type of people just don’t “get” them.

Every case is different, but we all have developed litmus test questions  that we believe helps us to weed out jurors who we think won’t be fair to our clients.

Both sides want fair jurors, but in all honesty, what we are really looking for is jurors who will favor OUR side over their side.  How we go about the selection process could and has filled hundreds of books over the years, but here are a few insights from the front lines.

STEREOTYPES AND SNAP JUDGMENTS

The law limits our ability to really get to know jurors in depth. We have time limits on how long we are allowed to question jurors and we are limited in what types of questions we are allowed to ask. So, yes, stereotypes come into play.

No stereotype is true across the board, but when all else is equal, lawyers would be lying if they told you they didn’t occasionally fall back on these stereotypes when deciding whether to keep or excuse a juror.

It’s tricky to discuss stereotypes without touching  the 3rd rail – racial stereotypes, but that stereotype and MANY others play out in courtrooms every day.  In terms of RACE, conventional wisdom says prosecutors favor Asian American jurors because they believe that culturally Asians have more respect for authority and are more likely to believe a person who is arrested must have done something wrong.

The same thinking holds that defense lawyers favor African American jurors because they believe this group is more likely to have witnessed or experienced abuses of authority (especially law enforcement) and are more likely to believe it is possible for someone to be arrested and accused of a crime they did not commit.

In term of AGE, prosecutors tend to favor older jurors in crimes that are considered “victimless” like drug offenses, believing the younger generation has a more tolerant attitude towards those crimes.  In terms of PROFESSION, defense lawyers tend to favor those in helping professions like social workers.

I could go on and on in terms of “DRESS” and “AREA OF RESIDENCE” and “PRIOR JURY SERVICE”, but you get the idea. Obviously these are stark generalizations and do not hold true across the board.

I have no way of knowing if these beliefs are true for even the majority of the members of those groups, I am simply noting that the beliefs exist and definitely play a role when lawyers decide who stays and who goes.

If you find yourself harboring some outrage that stereotypes even come up in our selection process, I invite you to take the following challenge:

 YOU AS THE DECIDER:


Next time to you walk into a party where you do not know someone, or the waiting room at the doctor’s office, or even your local grocery store, pretend that you have 3 minutes and you need to decide who you want to invite to your next dinner party. Look around, ask yourself, “What thoughts am I forming about people in this room?”

Maybe you don’t have the luxury of talking directly to them, but you can watch them interact with others. You can see what they are wearing, how old they appear, what race they belong to, how they carry themselves. These days, you might even hear half of them talking on their cell phones.

Really pay attention. Ask yourself: “What impression do I have of them?”  Really get a good list going, pretend the event you want to bring them to is really important and your social reputation depends on it.

Now, break it down: Ask yourself “WHY do I have that impression?” “What factors went into you thinking that person would be funny? smart? well-read? a bore?”

We make snap judgments all the time, instinctually we gather clues about our environment and form subconscious responses the moment we encounter anything unknown.  So stereotypes may be automatic, but acting on those stereotypes alone without giving a person a chance to be an authentic individual is what defines discrimination.

The law prohibits the exclusion of jurors based on discriminatory grounds such as race and gender. So when I am speaking of snap judgments in jury selection, I am referring to those judgments you found yourself making at the party or the grocery store.

I personally spend more time focused on how the potential juror talks to his/her fellow jurors than I do skin color or area of residence for instance.

HOW TO BE A GOOD JUROR


Once they accept the fact that they will not be able to postpone jury duty until the 10th of Never, my friends often ask me how to be a good juror. I think the best way to approach jury duty is to imagine if you had a loved one accused of a crime.

Picture that person sitting at counsel table with his attorney and picture the jurors who will sit in judgment of him walking into the courtroom. What qualities would you want those jurors to have?

You would want them to be fair, to be open minded, to be conscientious, to listen closely to the testimony and instructions. You would want them to be unbiased and to believe in the presumption of innocence. You would want them to hold the prosecution to their duty to prove the case beyond a reasonable doubt.

So, remember that mindset the next time you have jury duty, after all the guy at counsel table is most certainly someone’s son or someone’s brother or someone’s father.  It doesn’t mean you are biased on his behalf; it means you are giving that person the rights the law entitles him to and when you do that and the lawyers do their job, justice has a much stronger chance of prevailing in the end.

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