Courting Stupidity

Why smart lawyers pick dumb jurors.

Walter Olson from the January 2003 issue

(Page 2 of 4)

The group stereotyping in the literature advising lawyers on jury selection is anything but unconscious or inadvertent. Women "are often prejudiced against other women they envy, for example, those who are more attractive," is one groaner from The Art of Selecting a Jury, published as recently as 1988. Mexican-American jurors are "passive," and "Orientals...tend to go along with the majority," we learn from a manual in recent use by Texas prosecutors.

Although the U.S. Supreme Court lately has instructed lawyers not to employ race (and even more recently sex) as a factor in jury picking, lawyers continue more or less blatantly to engage in "jurymandering" of both sorts. The edicts are difficult to enforce given that lawyers need offer, in the words of Brandeis University politics professor Jeffrey Abramson, "no justification, no spoken word of explanation, no reason at all beyond a hunch, an intuition" for their peremptory challenges. One can imagine what would happen to the employers or landlords who claimed such a right to base their selection decisions on subjective hunches.

Demography aside, a major goal of the selection process is the removal of any jurors with too strong a base of experience, knowledge, or opinion about the case's subject matter. If a case presents important medical or accounting issues, for example, lawyers on one or both sides probably will want to get rid of jurors with expertise in those areas. Manuals emphasize the importance of excluding potential "opinion leaders" for the other side. "You don't want smart people," says a Philadelphia prosecutor in an old training tape. "[They'll] analyze the hell out of your case." Even before selection begins, busy people often have dodged service, leaving a pool comprised disproportionately of retirees, the unemployed, and workers who can be spared from their jobs.

To make matters worse, a judge in a high-profile case may bounce juror prospects for cause simply because they have followed press reports about the events at issue. In the 1989 trial of Oliver North, for example, the judge flushed out more than 200 potential jurors for knowing too much about the case, which had been on the front pages for months. ("I don't like the news," said the eventual forewoman. "I don't like to watch it. It's depressing.") One panelist, according to

The New York Times, said of North that "she had seen him on television," but added, "It was just like I was focusing on the Three Stooges or something." Another woman, asked what she knew about the Iran-Contra scandal figure, replied, "I don't know, something about overseas." In the 1990 obscenity trial over a Cincinnati museum's exhibition of Robert Mapplethorpe's work, the only prospective juror who regularly visited museums was dismissed for cause, it being felt that actual familiarity with those institutions put an "unnecessary burden" on her objectivity.

Citizens with the "wrong" views can simply be prevented from serving on juries. According to coverage of the Engle trial in the local press, the most frequent reason for dismissing jurors was that they were considered to harbor unacceptable prejudices on the subject of tobacco company liability -- apparently typified by a former smoker of three decades who said, "I just think people are and have been well aware of the detriments of smoking....To come back after the fact, I find that somewhat ridiculous."

Lawyers' Full-Court Press

It is all a strange inversion of the once widely held premise that the courts should draw on jurors who are civically engaged and aware of the events of the day. Juror prospects have historically been drawn from rolls of such groups as registered voters, owners of real property, and literate persons -- all likely, on average, to display a degree of civic awareness exceeding room temperature. (In the really old days, it was considered an advantage in local jurors that they were personally acquainted with the parties or witnesses in the dispute; that way they could take their reputations into account in assigning proper weight to their stories.)

In much-publicized cases a vast army of recruit material -- 1,017 prospects in the Los Angeles murder trial of the Menendez brothers -- must now be screened in search of the few, the proud, the ill-informed. With hundreds of persons sitting for hours filling out lengthy questionnaires -- 79 pages in the Simpson case, 45 pages for the trial of Reginald Denny's attackers -- the process can take on the air of a giant college entrance exam on awareness of current events, albeit with reverse scoring.

The more exhaustive the questionnaires, the more power the lawyers will have to shape the jury. If enough questions are put to a panel of prospects, most will give at least one answer that can be seized on as evidence of their bias -- despite the uncomfortable implication this might leave that most members of the public are not objective enough to serve on juries. Trial lawyers accuse their critics of not trusting juries, but their own practices could scarcely convey greater distrust of jurors as individuals.

The Simpson trial's questionnaire contained 294 queries, including "What was your least favorite subject in school?"; "How important would you say religion is in your life?"; and "Have you ever belonged to Alcoholics Anonymous, the Sierra Club, or the National Rifle Association?" In some cases, lawyers have even been known to hire gumshoes to drive around prospective jurors' homes interviewing neighbors about their private lives -- this from the same profession whose avidity in filing invasion-of-privacy suits is almost as great as its avidity in filing discrimination suits.

One reason pretrial questioning takes so long is that lawyers routinely use it as a way to begin arguing their cases, planting assumptions and factoids that might or might not be admissible at trial. One injury lawyer, quoted in Stephen Adler's 1994 book The Jury, said he planned to linger over the otherwise standard questions about whether prospects had ever been an employee of the defendant company by reciting its subsidiaries one after another: Had they ever worked for this one? That one? "That will make it clear that it's a big corporation," he said. Jurors "must not be aware that an attempt is being made to persuade them" during selection, suggests another how-to book for lawyers. "They are convinced that they have changed their minds by themselves."

Worse, some courts permit lawyers to "get a promise" from jurors: If I show A, will you agree to conclude B? Adler quotes one trial lawyer who got jurors to assure him that they could return a "substantial verdict" if he showed thus-and-such; after getting general assent from the panel, he proceeded to call out individual jurors' names: Were you on board? And you? Each, in turn, meekly assented. "The psychological research is very convincing that getting a promise does, in fact, work," an enthusiastic jury consultant told Adler. "If you give them positions, they adopt them."

Jury selection typically becomes a more unpleasant and intrusive process when lawyers succeed in wresting control of it from the judge. Many state courts allow lawyers to grill juror prospects directly, with judges assuming, at most, a referee role.

Jury selection in state courts symbolizes one of the things foreign visitors tend to find so baffling about American trials, namely the extent to which we permit lawyers, rather than judges, to run them. Elsewhere, judges direct the inquiry, framing issues and ordering the assembling of witnesses and evidence; by contrast, the American judge Marvin Frankel notes that in the U.S., "judges generally act as passive umpires....Lawyers produce, direct, and dominate the trial process." Counsel for each side determines what evidence will be brought forward, by which witnesses, in what order, and which issues will emerge and with what kind of emphasis. If neither side's lawyers see fit to introduce a certain significant piece of evidence, then it stays out of consideration, no matter how much light the judge or jurors think it might shed on the case.