Justice Breyer on peremptory challenges

[CBL4]

This week the the supreme court ruled that a Texas prosecutor used peremptory challenges to excluded blacks from a jury and ordered a new trial.

Almost unnoticed in the reporting was Breyer's concurring opinion which questioned the use of peremptory challenge.

The use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before.
...
For example, a trial consulting firm advertises a new jury-selection technology: "Whether you are trying a civil case or a criminal case, SmartJURYâ„¢ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike."
...
The "scientific" use of peremptory challenges may also contribute to public cynicism about the fairness of the jury system and its role in American government.
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And, of course, the right to a jury free of discriminatory taint is constitutionally protected--the right to use peremptory challenges is not.
...
In Batson v. Kentucky, 476 U. S. 79 (1986), the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court's rule would not achieve its goal. The only way to "end the racial discrimination that peremptories inject into the jury-selection process," he concluded, was to "eliminat[e] peremptory challenges entirely." Id., at 102-103 (concurring opinion). Today's case reinforces Justice Marshall's concerns.

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=03-9659

I concur with all that Breyer said but I would emphasize the discrimination on non-racial items such "education, occupation, marital status, number of children, religion, and income" Having knowlege and a brain should not preclude me from being on a jury. So far, it has.

CBL

 

[WildCat]

I concur with all that Breyer said but I would emphasize the discrimination on non-racial items such "education, occupation, marital status, number of children, religion, and income" Having knowlege and a brain should not preclude me from being on a jury. So far, it has.

CBL

It worked for the OJ defense team!

Equally troubling to me is the way jurors are treated like rock stars after the case is over. Look at the MJ jury making the rounds today, for example. I don't remember this happening pre-OJ. It's well-known to the general public now as to how to look attractive to the defense or prosecution and get selected to a high-profile jury, in fact one of the MJ jurors signed a book deal mid-trial.

One more thing: Who, really, has the time or resources to sit on a jury in a trial that can last weeks or even months? I sure couldn't, probably most people couldn't. It essentially limits the jury pool in such cases to the retired or the unemployed, and those people aren't my "peers"!

 

[AmateurScientist]

Re: Re: Justice Breyer on peremptory challenges

It worked for the OJ defense team!

Equally troubling to me is the way jurors are treated like rock stars after the case is over. Look at the MJ jury making the rounds today, for example. I don't remember this happening pre-OJ. It's well-known to the general public now as to how to look attractive to the defense or prosecution and get selected to a high-profile jury, in fact one of the MJ jurors signed a book deal mid-trial.

One more thing: Who, really, has the time or resources to sit on a jury in a trial that can last weeks or even months? I sure couldn't, probably most people couldn't. It essentially limits the jury pool in such cases to the retired or the unemployed, and those people aren't my "peers"!

The Constitution never mentions a right to trial by a jury of your peers. Go ahead and look. It's simply not there.

The Sixth Amendment guarantees you a public trial in all criminal prosecutions by an "impartial jury." Impartial has never meant "peers" in the US.

Sorry, but this is one of my pet peeves, like when people mistakenly believe the standard of proof in a criminal case is "beyond a shadow of a doubt." Heh.

AS

 

[Ed]

Re: Re: Re: Justice Breyer on peremptory challenges

The Constitution never mentions a right to trial by a jury of your peers. Go ahead and look. It's simply not there.

The Sixth Amendment guarantees you a public trial in all criminal prosecutions by an "impartial jury." Impartial has never meant "peers" in the US.

Sorry, but this is one of my pet peeves, like when people mistakenly believe the standard of proof in a criminal case is "beyond a shadow of a doubt." Heh.

AS

I have never quite figured out who my "peers" would be.

The concept of "Peers" is part of Common Law and appears in Magna Carta.

[29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

I believe that in US Law, English Common Law still serves as precident. That being the case, you would look far prior to our Constitution for the garentee.

 

[AmateurScientist]

Re: Re: Re: Re: Justice Breyer on peremptory challenges

I have never quite figured out who my "peers" would be.

The concept of "Peers" is part of Common Law and appears in Magna Carta.



I believe that in US Law, English Common Law still serves as precident. That being the case, you would look far prior to our Constitution for the garentee.

Sorry, Ed, but you're both right and wrong on this point. Sure, the Magna Carta and The Common Law were and still are major influences on US law. Nevertheless, jury of one's "peers" has never meant what much of the public thinks it means. It has never meant that one is entitled to have a jury of persons with lots of things in common with the defendant (for instance, an engineer on trial is not entitled to have a jury composed of other engineers). By law and in practice, criminal defendants in the US are entitled to impartial juries, period. That means they can't be unfairly biased towards or against either side in advance. That's the whole purpose of voir dire, the jury selection process. There is no requirement whatsoever that the jurors share anything in common with the defendant. They only have to come from the surrounding community (or from the venue to which the action is moved, if it is moved for good cause).

AS

 

[CBL4]

I have alway understood "jury of your peers" to mean the common people as opposed to government associated people (judges, legislatures, noblemen) or people with special skills such as lawyers. They are independent, random and do not get "rehired" according to their skills or their verdict.

I could not find much information about this. The Magna Carta seems to imply that noblemen will be tried by noblemen and freemen by freemen.

I do not vouch for this site but it agrees with my interpretation:

Originally, it meant people of "equals in station and rank." (Black's Law Dictionary, 1910), "freeholders of a neighborhood," (Bouvier's Law Dictionary, 1886)

http://www.geocities.com/Heartland/7006/rulebook.html#anchor11

The current system of juror selection seems to make a mockery of this idea. I understand rejecting people who are friends of the people involved or who have a strong emotional bias. But that is as far as it should go. Rejecting people because of their political or legal views is absurd. Rejecting people for no reason is absurd. Rejecting people because of their class, race, age, profession, education, etc is inherently opposite of the intent.

CBL

 

[Brown]

Justice Breyer suggested the elimination of peremptory challenges. Such an elimination would not work unless there were a comprehensive change in the standards for jury selection.

Most peremptory challenges are based upon some reason other than race, creed, age, etc., but these reasons are not sufficient to justify a dismissal "for cause." Further, many judges require that the cause be stated on the record so that the juror--and anyone else who happens to be present at that public proceeding--can hear it. Unless the cause is pretty obvious (e.g., the prospective juror says he knows one of the lawyers or one of the parties or one of the witnesses), stating the cause can be awkward.

For one thing, it might be embarrassing. If a lawyer thinks a prospective juror is too stupid to understand the issues in the case, it would be embarrassing for the lawyer to have to say this in public. The lawyer may be perfectly right, and as an advocate for his client he has to do what he can to keep that dim bulb off the jury, but making the lawyer state the reason on the record is very awkward.

For another thing, some judges deny challenges for cause. A judge who is tactfully told that a prospective juror is too stupid will almost certainly NOT allow that juror to be dismissed for that reason, unless the juror's stupidity is painfully obvious.

Prospective jurors get challenged for being inattentive, seeming nervous, lacking eye contact, nodding at inappropriate times, giving unintelligent answers, expressing political views that may be at odds with one side's case, exhibiting a dominating or take-charge personality, exhibiting a conformist personality, and so forth. Such qualities are generally not sufficient, under current standards, to allow a side to demand that that prospective juror be dismissed from the panel. But reasons such as these are often sufficient for peremptory challenges. In the case of a Batson challenge (where the counsel for a criminal defendant challenges the peremptory challenges as racially motivated), reasons like these will often overcome it. (One of the mistakes made in the Texas case was that the prosecutor gave legitimate reasons for challenges, but those reasons were not supported by the record! The prosecutor mischaracterized what a prospective juror said, which lent support to the notion that the grounds for challenge were not really the grounds asserted on the record.)

It is an unfortunate fact that some lazy lawyers do not exercise challenges based upon the prospective juror's answers or demeanor, but exercize them based superficially on race. Such a practice is wrong and it is stupid. But even after Batson, it does happen.

Eliminating peremptory challenges would go a long way toward eliminating that problem, but there would have to be some changes to challenges for cause. Otherwise, neither litigants nor judges will be happy with the quality of juries.

 

[CBL4]

Most peremptory challenges are based upon some reason other than race, creed, age, etc., but these reasons are not sufficient to justify a dismissal "for cause."

I would agree with "many" but I am not sure about "most." The fact that there are successful seminars and software packages that do exactly that is evidence against it. In any case, if a fairly large minority is done that way, it goes against the purpose.

I did not quote this part of Breyer's opinion:

In 317 capital trials in Philadelphia between 1981 and 1997, prosecutors struck 51% of black jurors and 26% of nonblack jurors; defense counsel struck 26% of black jurors and 54% of nonblack jurors

This implies that race is very important in peremptory challenges. But I am still more concerned about non-racial ones.

The most recent trial I was rejected from was ridiculous. A convicted sex offender did not registered once he was released from prison. This is a crime in Washington and California. However, to convict him of a crime, the proscecutor in either state need to be able to show he was in that state. Anyone prospective juror who clearly understood and could explain that was rejected by the prosecutor. In other words, understanding of the law was a reason for rejection.

Eliminating peremptory challenges would go a long way toward eliminating that problem, but there would have to be some changes to challenges for cause. Otherwise, neither litigants nor judges will be happy with the quality of juries

I would tend to agree that it would require more leeway in the "with reason" challenges. Also in this case I was in, some of the discussion about the challenges were held in private. This could be more common if it is actually a problem.

CBL

 

[Brown]

I would agree with "many" but I am not sure about "most." The fact that there are successful seminars and software packages that do exactly that is evidence against it. In any case, if a fairly large minority is done that way, it goes against the purpose.

Only lazy lawyers (and there are a lot of them) use race as a principal basis for challenging a prospective juror. I am aware of no accredited seminars that suggest challenging jurors based upon race or other improper ground. State supreme courts and federal courts, which regulate continuing legal education accreditation, would express extreme displeasure if such a technique were actually taught.

That said, there are several private consulting services out there that purport to "help" lawyers select juries. Good lawyers generally do not use these consulting services. But they do exist, and many of them apply highly superficial analyses. It is not unlikely that they would urge challenges on the basis of race, although they might couch their reasoning in terms of "body language," "rapport," "aura," and other non-specific terms.

In one instance with which I am familiar, a jury consulting firm asked a judicial district for permission to examine jury questionnaires. Why? So that a handwriting analysis could be performed to determine the juror's personality! The chief judge told the consulting firm to take a hike.

In other words, understanding of the law was a reason for rejection.

My guess is that this is a supposition on your part. You might be right, but chances are that there are other factors in play.

Generally speaking, prosecutors WANT educated, articulate jurors. They know that criminal law can sometimes be confusing, and they want jurors who have the mental horsepower to be able to figure out the issues. In many criminal cases, there are nuances that seem to be beyond the comprehension of some folks, but are very important to the prosecutor's case. Prosecutors want jurors who can comprehend those nuances.

Also, you can ask any prosecutor, and s/he will say that prosecutors WANT jurors who are smart enough to distinguish what they'll see in a real-life case from what they may have seen in a movie or TV show.

In a case that relies on an expert witness (such as a drunk driving trial) prosecutors want people of above average intelligence on the jury so that they will understand what the expert is saying.

I would tend to agree that it would require more leeway in the "with reason" challenges. Also in this case I was in, some of the discussion about the challenges were held in private. This could be more common if it is actually a problem.

Even if challenges were held in chambers (as they sometimes are), the awkwardness I describe would still be there. Trial lawyers are contentious S.O.B.'s, and each side is apt to quibble with the grounds asserted by the other side. The result will be an uncomfortable situation for both litigants and judge.

Suppose a lawyer for one side gets very bad vibes about Cletus the slack-jawed yokel. This lawyer says to the judge in chambers, "Judge, the issues in this case are complex, and it does not seem to me that Mr. Cletus will be fully capable of appreciating the complex issues and evidence pertaining thereto." The opposing lawyer (who as a rule disagrees with everything his opponent says) replies, "Judge, he's saying Mr. Cletus is too stupid to be a juror! That's an insult to this citizen, who is carrying out his civic duty. Maybe he's no Einstein, but Mr. Cletus is clearly of at least average intelligence, and he ought not be disqualified as a juror." At this point, the judge would be in the uncomfortable spot of having to say whether Mr. Cletus's lack of mental prowess makes him unable to be a fair juror.

The judge, by the way, knows that a party that has a complex case or a complex defense will be hindered by stupid jurors, who are unlikely to be impartial. On the other hand, the judge knows that s/he can't just go knocking the below-average IQ folks off the panel.

So it's a tough problem.

 

[CBL4]

My guess is that this is a supposition on your part. You might be right, but chances are that there are other factors in play.

Generally speaking, prosecutors WANT educated, articulate jurors. They know that criminal law can sometimes be confusing, and they want jurors who have the mental horsepower to be able to figure out the issues.

It is a supposition but it was supported by the facts. While listening to answers, I mentally nodded when jurors made intelligent remarks. These people were all gone. Admittedly, it was an unusual case where a clearly guilty person would get off on the technicality of not knowing where he lived.

Only lazy lawyers (and there are a lot of them) use race as a principal basis for challenging a prospective juror. I am aware of no accredited seminars that suggest challenging jurors based upon race or other improper ground. State supreme courts and federal courts, which regulate continuing legal education accreditation, would express extreme displeasure if such a technique were actually taught.

The SmartJury program claims to do this:

Demographic Profiling
SmartJURYâ„¢ has conducted extensive national demographic profiling to determine the types of jurors who respond favorably and unfavorably to various types of cases and issues. Whether you are trying a civil case or a criminal case, SmartJURYâ„¢ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike. All your paralegal/legal assistant does is select the type of case you are trying and input the demographic information for your potential jurors and SmartJury does the rest in seconds. You are immediately provided the results and rankings of the individual venire members, in a well organized and easy to see format, while in the courtroom. Stop guessing whether an African-American, male, age 38, married, two children, Baptist, college educated, teacher is good for your case or bad for your case. SmartJURYâ„¢ will tell you in seconds!

So far as I can tell, no one has "expressed extreme displeasure" with it.

SmartJury also has a connection to online public records searches for additional background checks on potential jurors through Accurint, an information management and technology company providing public records searches. According to the company, by typing in a potential juror’s name, address and date of birth, the application will search public records for the juror’s criminal records, bankruptcies, business affiliations, liens, property ownership, education, neighborhood information and home value.

http://216.197.119.27/news_article.asp?articleID=13&archive=0
Is this appropriate?

CBL


CBL

 

[Brown]

The SmartJury program claims to do this:
So far as I can tell, no one has "expressed extreme displeasure" with it.

I took a look at SmartJury's web site. These guys do not seem to teach accredited courses in jury selection.

Lawyers who want to learn how to pick a jury can attend workshops that discuss tips for doing so effectively. Some law schools, for example, offer such courses. Lawyers who attend the courses earn continuing legal education (CLE) credits. A certain number of CLE credits must be earned periodically in order for the lawyer to keep a license to practice.

CLE content is reviewed by, and approved by, state supreme courts and some federal courts. If the state and federal courts do not approve of the program, they will refuse accreditation.

It is my contention that no accredited training program would ever teach that lawyers could or should strike jurors on the basis of race or other improper ground. If a program taught such a thing, the company that sponsored the program would be in peril of losing its accreditation, and the courts would not be hesitant to express their displeasure. What that means is that the company could still offer its program, but lawyers would not get CLE credits for attending. And as a rule, lawyers don't like to attend training sessions unless they get CLE credits for them.

Picking a jury is hard work. Successful lawyers generally don't rely on consultants or software to make their assessments. They put thought into the questions that they plan to ask, and listen to the prospective juror's responses.

It is not unheard of, however, for a client to insist that a jury consultant be brought in, and sometimes lawyers are urged by their clients to use these "services." If the verdict is favorable, then the consultant takes part of the credit, of course. If the verdict is unfavorable, the consultant accepts none of the blame.

 

[AmateurScientist]

Picking a jury is hard work. Successful lawyers generally don't rely on consultants or software to make their assessments. They put thought into the questions that they plan to ask, and listen to the prospective juror's responses.

Heh. That's certainly the theory, but a controlling judge can blow that out of the water. Depends. The last jury trial I had was two months ago. It was in state court. Neither of the lawyers had tried a jury case before this particular judge. He shocked both of us by stating at the outset, on the record and in front of the jury, "OK, you each have 15 minutes for voir dire. Go."

Do you realize how little personal rapport you can establish with 34 different prospective jurors in 15 minutes?

I had to chuck most of my plan for jury selection and cull it to next to nothing. I asked some very basic stuff, asked a few questions intended to clue the jury in on what the case was about, and sat down. I wasn't about to start off the case with the jury seeing and hearing the judge admonishing me for disregarding his order to take just 15 minutes.

It ended up with my clients and me mostly using gut-level demographic information to strike jurors we didn't like for reasons that were very superficial, for the most part. Under our system, each side can first strike for cause (we each agreed upon one), and then take turns using however many peremptory strikes are necessary to end up with 12 jurors. Basically, you end up with jurors who are the least objectionable to both sides. It is a true compromise.

Fifteen minutes is not enough time. There was little point to it, really, except as an opportunity to introduce ourselves and our clients to the jury and try to get some rapport with them through eye contact and favorable body language. I learned very little about the jurors compared to what I would have in my usual voir dire.

AS

 

[Suddenly]

I just had an accredited CLE last weekend where a demographic based method of jury selection was advocated. He suggested doing your own local demographic research (ideal juror profile) similar to the "smartjury' stuff, as well as more or less investigating the heck out of the jury pool to the point where you pretty much know the background of the entire panel.

Outside of a capital type case and a few nice judges, voir dire here is limited in line with what A/S reported. I've been before judges that would only allow counsel to submit written questions to be asked from the bench. I preserved the record but messed up a planned challenge by winning the case... although I have a feeling I'd have lost on appeal with the opinion containing the words "the sound discretion of the Trial Court."

Plus, there is merit to the idea that full-panel voir dire is perhaps the very worst time to ask potential jurors questions and expect useful answers. The oddity of the circumstances tends to cause people to give answers they think they are supposed to give. Not to mention that some just flat out lie. I've never used the answers to questions on voir dire to figure out who I want to strike... mainly I use the questions to advocate my positon (although sometimes it is darn near cryptic) and only consider nonverbal data from voir dire, add my prior specific and general demographics, and off I go to battle...

In a rare big case where I can get individual voir dire in chambers, I take a different approach, but in the mass of cases where I have to address the panel in the open absent a good reason ... I'm going to stick to the general ideas that voir dire is about imparting information more than trying to recieve it....

 

[AmateurScientist]

Plus, there is merit to the idea that full-panel voir dire is perhaps the very worst time to ask potential jurors questions and expect useful answers. The oddity of the circumstances tends to cause people to give answers they think they are supposed to give. Not to mention that some just flat out lie. I've never used the answers to questions on voir dire to figure out who I want to strike... mainly I use the questions to advocate my positon (although sometimes it is darn near cryptic) and only consider nonverbal data from voir dire, add my prior specific and general demographics, and off I go to battle...

In a rare big case where I can get individual voir dire in chambers, I take a different approach, but in the mass of cases where I have to address the panel in the open absent a good reason ... I'm going to stick to the general ideas that voir dire is about imparting information more than trying to recieve it....

I'm with you, LP. The very best CLE seminar I ever attended (and I've been doing this for 17 years now) was a day-long trial advocacy skills seminar the venerated James McElhaney gave. His name should be familiar to most trial lawyers as the well-respected author of the "Litigation" columns featuring "Angus" in the ABA Journal (I don't know if he still writes it; I gave up my membership in the ABA years ago when it became a political tool for leftist politics and every issue of their journal contained mostly political platforms. Screw that. I was a member for professional development and tips, not to be indoctrinated into some political groupthink).

Anyway, Jimmy had lots of great things to say, including the best one I've ever heard about jury selection. "While you're busy picking a jury, they're picking a lawyer." Read that again.

That was quite a revelation to me and changed my voir dire practice entirely. Instead of following the tired (and rather poor) methods taught in trial advocacy courses in law school and by older, grizzled local lawyers, I am now a student of McElhaney. He suggests, for instance, that you will learn more about a prospective juror by asking him or her what he or she had for breakfast that morning that you will by asking the Godawful "Do you promise to follow the law and instructions given to you by the judge at the end of the case?" He's right. Estalishing a good rapport with them during voir dire is the most important thing for you to do at that phase of the trial.

It's important also to recognize that voir dire can serve not only as a tool for you to learn information about the jurors, but also for them to learn something about you (and your case, of course, as LP duly notes). It is improper, and many judges will call you on it, to argue your case in voir dire. Nevertheless, if you are careful, a good trial lawyer can ask questions of the jury panel that convey what he or she intends to argue in the case itself. That can be invaluable if done in moderation and with finesse.

I recall getting some great answers out of a prospective juror in a civil case over a real estate contract gone bad. I represented a home builder who got sued for breach of contract and fraud after a young couple, using their own realtor, made several different written offers to purchase a lot and house to be built upon it. The builder also had its own realtor, and it had signed several written counteroffers. The couple's realtor got tired of dealing with the transaction and jumped the gun and simply declared that they had a contract, despite the parties never having agreed on a price. The couple stopped shopping for houses and returned to their out of state home, waiting for their "dream house" to be completed. Of course, my builder sold the lot to someone else and built a home for them instead, having grown tired of waiting for the first couple to accept his terms.

Anyway, I asked the jury panel if anyone had ever engaged in written negotiations to buy a house in which more than one offer and counteroffer were made and/or rejected. A few hands went up, and one guy, upon further questioning, gave some terrific answers that showed he knew there wasn't a deal until everyone had clearly agreed upon a specific price and had clearly indicated their agreement in writing and had all signed that same writing and exchanged signed copies with each other. Bingo! That's what my defense was--that there was NO DEAL (my theme of the case) until that had happened. Of course, the other side immediately struck that guy off the panel, and I fully expected that. That wasn't why his answers were so great, however. They were great because he ended up educating the rest of the panel right from the get go about how they should view the case. I saw them nodding in agreement with him as he answered that there was still no deal while offers and counteroffers were being exchanged. It was then impossible for the other side to strike off all those who nodded in agreement with him (and implicitly with me).

It worked beautifully. I won exactly the verdict I hoped for, on the claims against my client, and also on the counterclaim we filed against the couple. I credit much of that with the rapport I was able to develop with the panel during voir dire. That rapport continued throughout the trial, much to my delight. The final affirmation that I had that jury in the bag was on the morning of the fourth and final day of the trial. We came back at 8:30 a.m. and the judge handed the case back over to me to resume my closing arguments, begun the previous evening about a quarter until 5. I stopped a few minutes before 5 and suggested to the judge, in front of the jury, that everyone was tired and perhaps might better absorb arguments and instructions when fresh again the next morning. He agreed and dismissed everyone for the day. Boy, that was a great move.

Anyway, the next morning, upon taking the lecturn with my yellow legal pad with a sketch of my outline of points to be made, and before I started flipping my large, blown up exhibits introduced during the trial, I looked up at the jury, smiled genuinely, and simply said, "Good morning." I expected no response. Instead, and to my great surprise, every single juror responded in unison with a very warm and friendly "Good morning," and nearly every one of them smiled back at me.

That was such a huge boost to my confidence. I knew I had the trial won at that point, and I had barely said anything on argument until then. The rest of my closing argument went very smoothly and I had lots of them nodding in agreement throughout it. In contrast, I could see some puzzled looks on their faces and some folded arms (indicating distancing themselves and disagreement) during the opposing lawyer's arguments.

Thanks, Jimmy. You're the greatest. LP and other trial lawyers, if you ever get the chance to see him, drop what you're doing and go. Also, buy one or two of his books through the ABA or directly from him, if you can. They're worth every penny.

AS