Wednesday, September 23, 2015



The mantra that lawyers recite when they are questioning jurors is “fair and impartial jury.” They tell jurors that the only reason they are asking all those prying, invasive questions is to help them in seating as fair and impartial a jury as possible. What litigants really want is a jury that is going to be as unfairly partial as possible—unfair to the other side and partial to their side.

Q: What do the following three litigants have in common:

[a] A criminal defendant who is guilty as home-made sin, facing a prosecution with an ironclad case.

[b] A civil plaintiff who is faking an injury and looking to score a huge payday off of some corporate giant with deep pockets.

[c] A civil defendant who is unquestionably at fault and facing financial ruin from an adverse verdict.

A: They don’t want a fair and impartial jury.

Why? A fair and impartial jury is going to nail all three of them. Even an innocent criminal defendant, a deserving civil plaintiff, and a faultless civil defendant would be idiots not to want an unfairly partial jury, so long as the jury was biased in their favor.


As early as 1948 the United States Supreme Court was writing about the Constitutional right to a jury comprising a “representative cross-section of the community.” Thiel v. Southern Pac. Co., 328 U.S. 217,66 S.Ct. 984 Probably the strongest expression of the concept came in the case of Batson v. Kentucky, 476 U.S. 79,106 S.Ct. 1712 (1986),

Once long ago when I was a young public defender, I was sitting in court waiting my turn to voir dire a jury and watching out-of-town private counsel conduct a voir dire. He was asking some strange questions, so I decided to find out why he was acting so strangely. During a recess I approached him and asked, and he replied that he was just trying to get a representative cross-section of the community. Being far more familiar with the community than he was, I was tempted to say, “Brother, the last thing in the world you want is a representative cross-section of this community!” I restrained myself, and later that day the representative cross-section of the community convicted his client.

Depending on the community, a litigant may or may not want a representative cross-section on the jury. If you’re defending a local poacher in a county where poaching is a way of life, you certainly want that representative cross-section. If you’re in a county where everyone belongs to hunting clubs which have their own private hunting lands, you don’t want a representative cross-section, you want a change of venue.

What litigants want is a jury that is going to vote their way, and if that means a jury completely composed of a single ethnic group, then that’s just fine and dandy. I once represented a Puerto Rican gentleman who perceived this far better than a lot of lawyers I know. When we were talking to him about jury selection, he told us he wanted a jury of his peers—all Puerto Ricans.


Imagine this if you will. Charles Darwin has just formulated his theory of evolution by natural selection. He presents it to the Linnean Society of London, at that time the preeminent authority on taxonomy and natural history. The Linnean Society begins to evaluate the worth of Darwin’s theory. They herd together a large number of citizens off of the streets of London, and then carefully winnow through them seeking twelve Londoners who know nothing about taxonomy or natural history. Having found twelve good men and true who are completely ignorant of the subject, they then have Darwin and an opponent of his theory debate its merits before the group. The group retires to consider its verdict, and then renders a pronouncement on whether Darwin’s theory is sound science.

Or this scenario: Albert Einstein has just devised his special theory of relativity. When he presents it to the publisher of a scientific journal for publication, the publisher quite naturally wants to determine its worth as a scientific theory before putting it in print. The publisher therefore goes out into the streets and gathers a random group of citizens. The citizens are carefully questioned, and anyone with anything more than a rudimentary knowledge of arithmetic is summarily excused. The twelve citizens with the least knowledge of mathematics are then assembled as a panel to listen to Einstein debate the merits of his theory with an opponent. At the conclusion of the debate, the twelve ignorant citizens then decide whether Einstein’s theory is worthy of publication.

You might say that’s a silly way to settle a matter, but that’s exactly how jury trials are conducted. Look at any jury selection in any highly publicized case. The attorneys work diligently to exclude anyone who has been exposed to any publicity whatsoever about the case. Mark Twain summed up the American jury system quite well when he said “We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don't know anything and can't read.” The American Journal of Insanity (later to become the American Journal of Psychiatry) made a more insightful if less humorous observation when it said: “It would seem that in this country, to be a juryman in a criminal case, requires an abstinence from the acquisition of news, and the expression of conclusions on what one hears or learns, that in Athens would have been odd enough to subject a man to the suspicion of being unfit, from that very cause, to sit upon a jury, or do any other thing that required a knowledge of what was going on in the world.”

What happens in a high profile case where you strike off every potential juror who has read anything about the case in the paper or seen anything about it on the television? You wind up with twelve intellectually challenged jurors. And this is what the lawyers seem to want. If they can’t get a jury which is biased in their favor, then the next best thing is an intellectually challenged jury whom they can manipulate into doing what they want. Intelligent people are not immune to manipulation, but they are less susceptible than the intellectually challenged.

The jury selection process was designed to achieve a fair and impartial jury to render an unbiased verdict based on the law and the evidence, but that’s not how it’s working in America today.  Today it is being used by skillful lawyers to achieve a malleable group of easily-influenced intellectual lightweights who can be manipulated into rendering the desired verdict.

We supposedly like the jury system because jurors are the best judges of the truth. Then we act like they don’t have enough sense to make decisions without the extensive winnowing process of voir dire examination. What the winnowing process is really doing is trying to eliminate those with enough sense to make decisions and leave only the ones who can be talked into agreeing with us. I think we ought to give more than lip service to the idea that jurors are the best judges of the truth.

Back when I first started as a public defender it was me and two other assistant public defenders and seven counties and 21 courts. Cases were coming at us like water out of a fire hose, and we tried one case after another, sometimes as many as three and four felony cases a day for a solid week. We didn’t have time to do extensive voir dire examinations.

I may be looking through the rose-colored glasses of hindsight, but it seems to me the less voir dire we did, the more sensible the verdicts were. The longer I worked, the more extensive voir dires became, and the more inexplicable some verdicts became. When I became an assistant state attorney and started working with grand juries, I was amazed at how much more sensible grand jurors were than petit jurors. Then the reason dawned on me—you don’t voir dire grand jurors. You just pull names out of the hat, and those are your grand jurors. I think if we did that with petit jurors, we’d get more sensible verdicts than some I’ve seen.

Like the not guilty verdict from the jury that snickered when the domestic violence victim described how her husband gouged her eye out with a broken bottle.

Or the not guilty verdict where the jurors, before they left the jury box, admonished the defendant never to do that again.

Or the robbery trial where the jury claimed that they convicted the defendants of the lesser crime of grand larceny because it was “grand” and they thought that was the biggest and best crime they could convict the defendants of.

Or the not guilty verdict that so surprised the defense attorney that he loudly interjected “Holy [excrement]!” in open court.

Or the fleeing and attempting to elude case where the defendant stole a police car and was chased all over the county before crashing it, and the jury acquitted because the crime was “just like the Dukes of Hazzard.”

These verdicts and many more like them were, I believe, the product of a system which allows the attorneys to use voir dire examination to eliminate impartial jurors who display too much intelligence. (Of course, they love intelligent jurors who are biased in their favor).

Here’s my suggestion on how to patch the system. (1) Do not allow lawyers to conduct voir dire examinations. (2) Strictly curtail voir dire examination by the judge. (3) Do away with peremptory challenges. (4) Increase the number of jurors to 18 and go to non-unanimous verdicts. (5) Require that at least 12 jurors would have to agree on any verdict. (6) If 12 jurors can’t agree on a verdict, the jury hangs and the case has to be retried.