Uncertainty Built into the Jury System
Worth the Read
I found this article by through NCSC's Jur-E Bulletin. "The Function of Uncertainty within Jury Systems" by Dru Stevenson, professor of law at South Texas College of Law, published in the Winter, 2012 edition of the George Mason Law Review.
Dr. Stevenson's largely academic article makes frequent comparisons between the ancient Greek jury system and the current American system, focusing on the uncertainty built-in to the American jury system, particularly through the exercising of peremptory challenges.
Over the years I have heard judges and attorneys alike misspeak and call peremptory challenges "pre-emptory" challenges, and in a way the phrase is apt.
Dr. Stevenson writes, "Peremptory strikes do not necessarily produce a more neutral jury." Preemptive removal of the obvious vocal polar ends of the panel leaves a group of greater uncertainty for both sides. It is perhaps counter-intuitive, but removal of potential jurors based on the obvious predictors makes the resulting jury's actions less predictable.
Do Juries Represent the Jurisdiction?
One of the frequently asked questions I am asked about mock juror research is whether the mock jurors are representative of the jurisdiction. Well, it's an interesting question, because in a sense, no jury is representative of the jurisdiction.
The process of jury selection is an interesting filtering-down from the original "list" of those who may be summoned.
Juries by their nature are small, significantly and unpredictably skewed samples of the jurisdiction. As I discussed in an earlier newsletter, small sample sizes lead to distorted representation of the larger group. The reliability of juries, meaning the ability of jury after jury to consistently achieve the same result with the same set of facts, is unknown; however, anecdotal experience of re-tried hung juries (albeit with new and different presentations) does not inspire an inference of consistency.
Many are called, few are spoken to, and some are chosen...
Many attorneys allow themselves to be distracted and sidelined by calling on the same soloists in the voir dire choir, and never get to hear from many who remain on the panel.
The jurors who are left are typically the one ones who have fewer leadership skills and whose answers are more difficult to read with regard to partisan biases.
At the end of a typical jury selection, there is commonly a sense of mystery about the members of the panel.
Who Controls the Mystery?
I have felt that the elusive obvious about jury trials is that attorneys are turning a "negotiation" they presently control, over to a group of strangers that they have little control over. It's a game of high stakes poker for some attorneys who believe they are, and just well may be, better gamblers than other attorneys.
Fewer and fewer cases go to trial; and there is an ongoing debate about whether this phenomenon is good or bad for overall justice.
My experience of watching traditional litigation mediation in action has been less than inspiring.
The typical litigation mediation is little more than positional bargaining similar to what occurs at a garage swap. I want $20...I'll give you $10, and so on. The mediator performs shuttle diplomacy, but often doesn't have the tools to remove the mystery of the potential jury and resolve the impasse.