Deliberations

A Judge's Case For Jury Questionnaires

"I am an unapologetic believer in jury voir dire."  That's the first sentence of the "From The Bench" column in the new issue of Litigation magazine. 

Who is this wise judge and author?  She's Barbara Lynn, a federal district court judge in Dallas, and her article titled "A Case For Jury Questionnaires" is here for ABA members.

The National Law Journal wondered recently whether jury questionnaires are becoming more common.  (The NLJ piece is subscription only; see the note below.)  Whether or not they're becoming more popular now, articles like Judge Lynn's will help them spread.  In a detailed and practical guide, she covers everything from the details ("The [judge's cover letter to a mailed questionnaire] should emphasize that the prospective juror should not worry about spelling or grammar but should answer to the best of that person’s ability") to the compelling reasons why questionnaires make good sense, like:

In my experience, a questionnaire provides a much more comfortable means than does oral examination for potential jurors to provide information to the parties and the court. A venireperson who has a child in prison for a drug offense would much prefer answering a question about that in writing than standing up in open court to discuss it.

There's also a meticulous discussion, with case cites, of how judges can protect jurors' privacy when they use questionnaires. 

Judge Lynn concludes:

Confidential juror questionnaires are an invaluable tool for ensuring both the integrity of the jury system for litigants— especially criminal defendants— and the improvement of jurors’ experiences with that system. They allow attorneys to learn a significant amount about potential jurors, without significantly compromising jurors’ interests in maintaining their privacy in truly personal matters, yet allow the press sufficient access to report on trials and our jury system. In these ways, jury questionnaires serve the fundamental goal of maintaining the viability of the jury trial—a critical part of our system of justice. 

_________________

Source note:  I'm proud to be quoted -- and pictured, for heaven's sake -- in the NLJ article noted above, but it has several other sources too, plus references to questionnaires that are archived in Deliberations' library of juror questionnaires.

(Photo by Korean Resource Center at http://www.flickr.com/photos/krcla/362137815/; license details there.)

Getting Older, But Not Old

It's my birthday.  It's Fred McMurray's too, and Cameron Diaz's, and (I learned today) Guy Kawasaki's -- but unlike those folks, mine has a zero on the end. 

Fifty makes you think.  But luckily, if you're a jury blogger, you've got material to think about.  I have a whole category of collected and unused news reports that shed light on what getting older really means.  No better time than today to review some of those.

Here are some things you might not have predicted about older people:

• They're the group most likely to believe the Iraq war was a mistake.  It's "one of the more surprising findings" in a May 2007 Gallup survey about the war.  It might be because war is part of their life experience, the Gallup folks think.  "Americans who are now in their 50s and early 60s were most likely to have been affected by the Vietnam War, and those who are now in their 70s and 80s were most likely to have been affected by World War II and the Korean War."
• They're sexually active, according to a widely reported (you could hear the reporters' relief) study that came out last week.  "More than a quarter in survey up to age 85 reported having sex in previous year," CNN proclaimed.
• They're increasingly on line.  Even in 2004, the Pew Internet & American Life Project reported that "22% of Americans 65 and older use the Internet," a 47% jump over 2000.  Today, my dad has a blog. 
• They might be raising children.  "Almost 400,000 grandparents aged 65 or more had the primary responsibility for their grandchildren who lived with them," says the U.S. Administration on Aging's comprehensive report, "A Profile Of Older Americans:  2002."  On the other hand, the same report tells us they might be isolated:  about 30% of noninstitutionalized older people, including half of all noninstitutionalized women over 75, lived alone in 2002.
• They want medical marijuana legalized.  In a 2005 AARP survey of adults 45 and older (back when I was in my 40s, I rolled my eyes at the AARP welcoming 45-year-olds), 72% of respondents agreed that "I think that adults should be allowed to legally use marijuana for medical purposes if a physician recommends it" -- even though, in the same survey, 74% of respondents believed marijuana was addictive.

I might need to change some of my preconceptions.  As I get older, I mean.

(Photo from the U.S. Administration on Aging via Ping News, at http://www.flickr.com/photos/pingnews/417034112/; license details there)

Thank You, Blawgletter

I'm learning what experienced bloggers already know:  writing a blog in late August is hard.  How Appealing takes the last week of August off, and it's easy to see why.  You're still digging out from vacation; you're dealing with back-to-school errands; your clients are refocusing as they dig out from their vacations; and half your readers are still on vacation so there are fewer folks out there to read anything you might happen to write. 

To the rescue rides Blawgletter's Barry Barnett, the litigator and possible superhero from Susman Godfrey.  While the rest of us struggle through the end-of-summer transition, Blawgletter keeps reading the advance sheets and turning out his "handy-dandy encapsulizations of same." 

Late-August federal jury decisions reported in Blawgletter include:

• Chlopek v. Federal Ins. Co., 7th Cir. Aug. 28, 2007, another Seventh Circuit case affirming a judge who wouldn't let the lawyers ask jurors how they felt about tort reform.  (Blawgletter's delightful send-up of the last such opinion from the Seventh Circuit is here.)  This week's post explains why "plaintiffs lawyers need to do a better job of fashioning the questions that they want the trial judge to ask."
• United States v. DeGennaro, 2d Cir. Aug. 27, 2007, where the court held the trial judge was too quick to declare a mistrial when the jury in a corporate fraud case claimed it was deadlocked -- and thus there would be no retrial for the defendants.  "[T]he jury apparently had decided to acquit them anyway," Blawgletter says soothingly.
• Shum v. Intel Corp., Fed. Cir. Aug. 24, 2007, where the court invoked the Seventh Amendment to reaffirm, as Blawgletter summarizes, "that courts may not fence jury trial rights by postponing jury trial until after a bench trial and using the findings in the bench trial to resolve the issues to which the jury trial right attaches."

All this and tons of other posts too, including a great rant against the passive voice.  (It "reveals either of three unflattering things about the writer -- cowardice, fuzziness of thinking, or slothful ways.") 

Blawgletter.  My hero.

(Photo by CFAGELNYC at http://www.flickr.com/photos/27149250@N00/430595810/; license details there.)

Let's All Move To Florida

Forgive me a "pointer" post on my way out of town; Robert Kelley's excellent Florida Jury Selection Blog reports on a new Florida case that ought to make the rest of us look at the bar admission rules there.  His post begins:

The Fourth District Court of Appeal reversed a breach of contract case for failure to excuse a Juror Green for cause who said she  had a “bad taste” from having been sued in the past which would “probably” cause her to view the case with prejudice one way or another.

My bags are packed anyway; maybe I'll change my flight and head south.  Either way, this blog will be back on Wednesday.

_________

Gratitude note:  Thanks to Blawg Review's anonymous Ed. for listing this as a blog judges might want to read (some already do, and they give me wonderful feedback), and to Evan Schaeffer at Illinois Trial Practice Weblog for sending his many (many!) readers here.  Evan had a great post yesterday on talking to juries about complex subjects.

(Photo by ieatstars at http://www.flickr.com/photos/ieatstars/267411515/; license details there.)

Why Don't TV Jurors Talk?

Sometimes I don't know I've had a useful thought until someone else articulates it.  Here's a question I've mused on from time to time but never thought to write about:  If Americans are fascinated by jury duty, and my time blogging here has convinced me that they are, why is the role of a juror in a movie or television show almost always a nonspeaking part? 

Those silent TV jurors

There's "Twelve Angry Men," the famous exception, and then there's the rule.  From "Perry Mason" to "Matlock" to "Boston Legal," from "Witness For The Prosecution" to "My Cousin Vinny," there they sit, the silent jurors.  They're ethnically diverse, well-groomed, attentive, financially comfortable -- and completely passive.  It's a phenomenon explored in Marquette Law professor David Papke's article, "12 Angry Men is Not an Archetype: Reflections on the Jury in Contemporary Popular Culture," available here on SSRN.  Prof. Papke is willing to draw conclusions from the pattern:

I suggest that while 12 Angry Men invites us to envision the jury as a fundamental building block for American life, the standard contemporary portrayal of the jury is instead a sobering suggestion of how we have actually come to see juries in the context of our increasingly attenuated and formalistic democracy.

It's an interesting article for the reader, and it must have been great fun to write.  Imagine the popcorn you'd consume, doing the research that would qualify you to write this paragraph:

Classic films from the 1950s such Witness for the Prosecution (1957), I Want to Live (1958), Anatomy of a Murder (1959), and The Young Philadelphians (1959) featured courtroom trials.5 More recent Hollywood dramas such as The Accused (1988), A Few Good Men (1992), and A Time to Kill (1996) as well as comedies such as My Cousin Vinny (1992), Liar, Liar (1997), and Legally Blonde (2001) continue the trend. On television, series such as L. A. Law (NBC; 1986-94), Ally McBeal (FOX; 1997-2002), and The Practice (ABC; 1997- 2004) always portrayed one or more of their lawyer characters litigating in each episode, and current series such as Law & Order (NBC; 1990-present), Boston Legal (ABC; 2004- present), and Shark (CBS; 2006-present) do the same.

Art imitates life, or part of it

The lack of curiosity among film and television writers about jury duty is odd, but in one way it's completely consistent with the jury-duty experience most people report.  Few jurors experience the high drama of, say, the jury that convicted Illinois governor George Ryan.  Instead, by far the majority of people who report for jury duty aren't selected for juries at all -- so their day in the courthouse really is silent, passive, and individual.  I've talked about a few jury blogs describing this dreary experience, and more examples come up all the time.  Last week brought a good one, when law student Luke Gilman reported for duty.  Forgive me for quoting a cite to myself:

I had jury duty today. It was originally scheduled for February but I rescheduled to fit it in the pathetically short break between our summer and fall semesters. Yeah, yeah, I know, I’m a student so I guess I could claim an exemption, but I didn’t want to get out of it. Far from the typical reluctant juror claiming rampant racism or homophobia to get out of jury duty, I saw it as a rare chance to see things from the other side of the jury box. I thought I might even join the ranks of the blogging jurors sometimes featured in Anne Reed's Deliberations. Alas, it was not to be.

I spent 4 hours sitting in the juror holding pen, waiting for my number to be called. When it finally was called it was only to tell me that my services would not be needed. Could I come back tomorrow I asked? “Um, no,” I was told by a fairly incredulous officer, “you’re free to go, you got a release.” Sigh. I don’t think there would have been any shortage of volunteers to trade places among the 50 or so people who went ahead of me. Oh well.

His day had all the excitement of a TV jury's.

____________

Source note:  I'm glad for the chance to cite Luke Gilman's terrific law blog, The Blawgraphy.  I first noticed it in June, when he mused on the questions that might have been asked in a voir dire in the Duke lacrosse case, and ended up with as clear a statement of how experiences are likely to shape jurors' attitudes as any I've seen.  Right now he's observing the conversation several blogs are having about the billable hour, and translating it into advice for law students. 

(Photo by Soon at http://www.flickr.com/photos/randomecho/298010188/; license details there.)

It's Broke, But Don't Fix It: The Ryan Appeal

When do jury deliberations become so horribly flawed that a guilty verdict cannot stand?  If you're in the Seventh Circuit and the trial was long and important, the answer may be never.   

The Seventh Circuit today rejected the appeal of former Illinois governor George Ryan and his aide Lawrence Warner, who were convicted of improperly steering state contracts for their own benefit.  The first sentence really says it all:  "This appeal comes to us after an investigation that lasted for years and a jury trial that lasted more than six months." 

"Totally astounding"

In lines that have been repeatedly quoted already today, the majority said the trial "may not have been picture-perfect" and the dissenting judge, Judge Michael Kanne, called that "a whopping understatement by any measure."  Judge Kanne spent three pages setting out in bullet points what went wrong in this trial.  "Some of the factors would be unremarkable in a routine criminal case," he said, "and other factors are totally astounding in any case."  I've italicized some of the more astounding items:

• "In a case that was tried over a six month period, the jurors entered and exited the courthouse every day past scores of television and still cameras and reporters.
• "The jurors used public elevators and brushed elbows with anyone who happened to be in them.
• "Although the court’s intent was not to make the jurors’ names public, that effort was compromised when the jurors’ names were used in the in-court voir dire.
• "When jury deliberations were ready to commence in the most high profile case in Chicago in recent memory, there was no thought of sequestering the jury.
• "During the initial eight days of deliberations an apparent holdout juror was purportedly threatened by other jurors with a charge of bribery.
• "Legal research gained by a juror from the internet was – contrary to the court’s instruction – brought into the jury room in an effort to persuade the recalcitrant juror to change her position.
• "A reporter for the Chicago Tribune advised the district court during jury deliberations that the newspaper’s   search had disclosed major inconsistencies between answers in a jury questionnaire and public records. Based on the information provided by the Chicago Tribune, the district judge, in concurrence with all parties, requested the U.S. Attorney’s Office to conduct a background check on all jurors.
• "Jury deliberations were halted following the Chicago Tribune disclosure and the hiatus continued during the investigation of the jurors by the U.S. Attorney’s Office.
• "During the five-day hiatus in jury deliberations, the exposé by the Chicago Tribune was published revealing that, indeed, false answers had been given on a jury questionnaire and that the sitting jurors were now under investigation.
• "Amidst questions raised by the district judge concerning the necessity of advising the jurors of their constitutional rights and their right to counsel, the individual examination of six sitting and three alternate jurors was begun.
• "Through the judge’s examination it was determined that a majority of jurors had provided false answers under oath and could face criminal prosecution. Many jurors who were interrogated told the district judge that they were scared, intimidated or sorry for what had occurred.
• "During the course of the interrogations, the jurors were granted immunity from prosecution by the U.S. Attorney.  Some jurors later hired lawyers in order to represent their own independent interests arising from their participation in the trial.
• "Two jurors who provided untruthful answers were excused from further service while others so situated were retained.
• "Before the hiatus in deliberation, jurors informed the court that they were having a conflict and yet after the interrogations the judge dismissed one of the jurors in the conflict without determining whether she was a holdout juror.
• "Alternate jurors were seated, but not in the order required by Rule 24.
• "After eight days of deliberation by the original jury, and five days in hiatus, a reconstituted jury deliberated for ten days and returned the verdicts in this case."

Amazing as that litany is, it doesn't fully capture the yelling and, apparently, pushing and shoving that went on in these deliberations.  The majority explained that the apparent holdout juror, whose name was Ezell, sent out one note saying "that other jurors were calling her derogatory names and shouting profanities."  Then the others sent a note asking that Ezell be removed "because she was refusing to engage in meaningful discourse and was behaving in a physically aggressive manner."

It's about time

Between the two opinions, there are 74 pages to read here, with each side discussing dozens of flaws in the management of the jury, whether they were harmless error, and whether they had been adequately raised on appeal.  The majority might have saved both sides some paper if it had pared its opinion to something like "We're not retrying a case that riveted the entire state of Illinois for six months no matter what anybody says."  Then Judge Kanne -- who, as a Volokh Conspiracy commenter pointed out, is a Reagan appointee not known in these parts as a friend of criminal defendants -- might have been able to limit his opinion to its candid conclusion:

In the final analysis, this case was inexorably driven to a defective conclusion by the natural human desire to bring an end to the massive expenditure of time and resources occasioned by this trial – to the detriment of the defendants. Given the breadth and depth of both structural and nonstructural errors, I have no doubt that if this case had been a six-day trial, rather than a six-month trial, a mistrial would have been swiftly declared. It should have been here.

A consensus builder

Whether you like the result or not, it's worth jotting down the cite for this case, which is actually captioned U.S. v. Warner.  For one thing, the sheer number and variety of the jury glitches make it a one-opinion encyclopedia of case law on this subject.  I'll save the opinion for another reason too.  Someday I'll want to quote Judge Kanne's thoughtful words on an issue appellate courts seldom mention:  the mess that results when judges refuse to judge.

At oral argument before this court, Prosecutor Collins stated that “Judge Pallmeyer is a consensus builder.” . . .  This insightful comment is the key to understanding the non-structural juror errors. Consensus building can help in finding common ground in disputes. It can also help to expose decision makers to alternative points of view. But consensus building can have negative consequences as this case demonstrates.

Consensus building by the district judge allowed a continual round robin of discussions between the attorneys and the court especially during the critical period of March 27th and 28th when the parties and the court were addressing the juror related issues. Transcripts from this period reveal a very conscientious but irresolute judge who is willing to contribute her views and concerns to the conversation involving contested issues, but is reluctant to provide firm rulings that end the court’s consideration of those issues. The record from this period is full of conversations but lacks definitive rulings.  Consensus building does not always lead to the resolution of difficult issues.

_________________

Note on other sources:  this case was all over the Web today.  There is particularly thoughtful discussion at White Collar Crime Prof Blog (two posts, here and here); Robert Loblaw's Decision of the Day (again); and Volokh Conspiracy. 

(Photo by ecparker at http://www.flickr.com/photos/ecparker/458330140/; license details there.)

My Dad's Cooking Blog

I've never done an off-topic post, but my dad has a cooking blog, and I really like it. 

You have to understand:  he never used to cook, and he certainly never used to blog.  But I should have seen it coming when, several weeks ago, he E-mailed me:  "Anne:  what is a blog, and what is the derivation of the word?"

Pretty soon he had one.  He calls it Cooking Tools; It's a compilation of family recipes and accompanying stories.  I can vouch for the recipes, and I love the stories -- particularly the one I'm in, where he tells the tale of how, in his seventies, he learned to cook.

You'll make my dad very happy if you visit his blog.  It might change your life too; next thing you know, you'll be telling your dad what a blog is.

(Photo by Alfonso Pierantonio at http://www.flickr.com/photos/kruder396/340821582/; license details there.)

That Which Should Not Be Said

This week brought two cases where jurors heard something they shouldn't have heard -- once from a potential juror, and once in a rollicking closing argument exchange between counsel.  Read them and you're left wondering if there's any meaningful way to respond to mouthy jurors and lawyers. 

"I used to be a lawyer with the EEOC"

The lawyer case is DeCorte v. Jordan, an employment discrimination case decided by the Fifth Circuit on Wednesday.  In closing argument, both lawyers decided to supplement the evidence with their personal knowledge and experience.  They were talking about how the EEOC found that the plaintiffs had probable cause to sue (you need this finding before you're allowed to bring a discrimination case), and what that finding did or didn't mean about the strength of the plaintiffs' case. 

Plaintiffs' counsel started the exchange, telling the jury, “The EEOC doesn’t find cause that often.”  Defense counsel responded that the finding was no big deal and indeed, the jury could infer the EEOC wasn't all that impressed with the case, since the EEOC only authorized the plaintiffs to sue but didn't sue the defendant itself:

[The EEOC] litigate[s] all the time [and] ... could have brought this case themselves. There are lawyers at the Justice Department who do just that. If the EEOC felt strongly about this case, where were they when it came time to litigate it?

No way, plaintiffs' counsel struck back in rebuttal:

Let’s talk about the EEOC determinations. Counsel misrepresented. The EEOC does not  file lawsuits in regard to public entities. The Justice Department in Washington does that with regard to public entities. I used to be a lawyer with the EEOC. And I’m going to tell you this. The facts of the EEOC charges are these. [A Plaintiff] went to the EEOC on a Friday afternoon, filed her charge, and they dismissed it Tuesday without doing any investigation. Reopened it and investigated it for a year. And found cause. Counsel didn’t tell you that.

Separately, plaintiffs' counsel offered some expert testimony in closing that hadn't quite come out in trial:

Remember. Let me tell you this: It doesn’t take a Ph.D. in industrial psychology to figure out those numbers. And that’s what Dr. McDaniel told me the first day I talked to him. Do you know what else? Do you know what Dr. Kenny told them? You didn’t hear it, but let me tell you what he told them. I can’t touch the firing decisions. That’s why this has got to be a hiring case.

None of this was in evidence, and the Fifth Circuit found it all "obviously improper."  But it was all harmless: "a back-and-forth between opposing viewpoints," "of limited duration," that "certainly did not impact the integrity of the judicial process" or affect the defendant's "substantial rights."

"I have found him to be completely truthful."

The juror case is Reynolds v. Bagley, decided by the Sixth Circuit yesterday and featured in Robert Loblaw's excellent Decision of the Day.  In this death-penalty murder case, the jury panel included a police officer who, it's fair to conclude, knew he had no chance to be a juror, and decided to do all he could to help the prosecution while he had the floor. 

Defense counsel moved to strike the policeman early on, and the trial judge denied the motion.  So he was questioned while the rest of the panel listened, and his answers revealed a hardworking advocate.  Could he objectively evaluate the testimony of a police officer witness whom he knew?  “I have always found him to be completely truthful.”  Was it a problem that he had worked with the prosecutor before?  The officer "stated that he could remain objective — but prior to doing so noted how 'efficient' the prosecutor was, and how the prosecutor demanded a lot from police officers before 'moving forward' with a prosecution."  Finally he was dismissed.

Defense counsel didn't move to strike the panel, which made things difficult on appeal, but it's hard to believe the court would have reversed a gory murder conviction on this ground no matter how well the issue was preserved:

Although Vanhyning’s statements could theoretically have biased ultimatelyseated jurors in favor of the prosecution and its witnesses, Reynolds has failed to show that there was any actual bias, especially given the trial judge’s subsequent curative instruction that jurors would have to decide the case for themselves. Nor is this a case in which the jury venire appears to have been predisposed to convict Reynolds, so that Vanhyning’s comments might have only heightened their predisposition, the trial judge’s curative instructions notwithstanding. Thus while we can conceive of a hypothetical in which a single veniremember’s comments, prior to his dismissal, might irreparably prejudice the remaining veniremembers against the defendant, the instant case does not approach that hypothetical.

(Citations are omitted from that excerpt.)

You can't catch me

I don't argue much with these courts' refusal to reverse in these cases.  It probably doesn't make sense to try a whole case over again when something like this happens.  But we ought to be left with a real dissatisfaction over cases like this.  In both cases, the two lawyers and the policeman juror, testifying rampantly with no one on the stand, had to know they were breaking the rules.  They also knew they were likely to get away with it -- and they did. 

(Photo by Robert Paul Young at http://www.flickr.com/photos/robertpaulyoung/148905239/; license details there.)

Finding Psychology, I: PsyBlog

I'm a Thinking Blogger!  It's a wonderful compliment from Emma Barrett's Deception Blog.  The Thinking Blogger is a meme, in this case meaning an award that is passed from each winner to five others, and thus spreads around, revealing good stuff as it goes.  It's an award that's had a great history lately; Emma got hers from Grits For Breakfast.

I'll need some time to narrow to five the list of blogs I wish I could tag.  But that's good, because it's worth spending a few posts on the best part of Emma's post, and the most useful for jury watchers:  the other blogs she honors. 

Psychology:  so much to read, so hard to find

If you're interested in juries, you need to know what's happening in psychology, and it's difficult to find strong and accessible sources.  Tracking research and news that's specifically about juries is easy; you set up searches for terms like "juror" and "jury duty" and read it as it comes.  But if you set up a search for "psychology," you'd have to troll several hundred stories a day, and still probably miss at least half of what you're looking for.  Emma's field is psychology, and her own posts (at Deception Blog and its sister blog, Psychology and Crime News) and those of the bloggers she cites are by far the best way for an ordinary lawyer to stay current in that field. 

Start with PsyBlog, one of Emma's other award winners.  Indeed, you could use PsyBlog as your psychology home base, since one of its features is an extensive guide to other psychology blogs.  PsyBlog is written by Jeremy Dean, a psychology graduate student whose prior experience in law, the Internet, and writing are all well used in this resource.  His goal is to be trustworthy and accessible, and as he explains, that's not a common combination:

The media is filled with information about psychology, much of it partly or completely misleading. Even the quality media frequently both misunderstands and misrepresents psychology. This is not surprising -- few science correspondents and even fewer general journalists have psychology degrees.

PsyBlog provides an insider's view of psychology without the journalistic sensationalism. Posts are based on articles in reputable academic journals, but without the academic terminology. It covers relationships, emotions, careers, work, stress, health, depression, music, personality, memory and loads more.

Examples

Recent PsyBlog posts that had me thinking about jury applications include:

"Good Wine Increases Food Consumption By 12%."  If you tell people they're drinking California wine, they eat more of their dinner than they do if you tell them the wine is from North Dakota.  "[I]f the wine is good, the food should be good as well," Dean posits as one possible explanation.  If that's true, how far does it go?  Is there a broader "quality carryover"?  Maybe I should wear a nicer suit to court.

"What Is The Point Of Psychology Studies?"  In a short and thoughtful post, Dean takes on the common criticism in all its forms:  ""Why do we need this study?" or "This just tells us what we already know!" or, "Rubbish!"

"People Playing The Field More Angry At Infidelity."  Anything that describes how a concrete fact about a person's background is likely to bear on that person's reactions is something a trial lawyer ought to read. 

"Ageing And The Positivity Effect," reviewing a study suggesting older people process positive emotions better than they do negative ones.  What might this mean for older jurors in an unpleasant case? 

So subscribe to PsyBlog, together with Psychology and Crime News and Deception Blog.  In future posts here, more places where lawyers can stay current with psychology.

(Photo by Victoria Peckham at http://www.flickr.com/photos/victoriapeckham/335264565/; license details there.)

Dear Deliberations

It's fun to watch the searches that find this blog.  People are usually looking for a phrase; yesterday brought visitors looking for  "sample voir dire questions criminal," "juror profile false advertising," and "Curious George stickers."  The best ones, though, ask whole questions, and I get to feel like an advice columnist.  Dear Deliberations, they write,

Q.  How do they pick jurors?

A.  Very carefully, my mom would say.  (She loved jokes like that.) 

Okay, really.  If you're asking what lawyers think about when they're choosing jurors, it's a complicated question, and most of what I write here is part of a search for the answer.  I suspect, though, that you're asking about logistics, what jury selection looks like to an observer.  For this, as for dozens of other jury questions, the National Center for State Courts has compiled a great set of answers.  On its State Links page for "Jury Selection," the NCSC has links to state courts' jury handbooks, for most of the fifty states and and a whole bunch of individual counties.  Most of the handbooks explain what voir dire is, the kinds of questions jurors can expect, and how the process of jury challenges works.

Q.  What are the questions asked for voir dire in a mock jury?

A.  Actually we hardly ask any true "voir dire" questions in a mock trial, in the sense that a juror might be removed from the panel based on the answers.  It's important that mock jurors be completely unconnected with the parties, the witnesses, the lawyers, and the case, so we ask thoroughly about those possible ties.  Depending on who is conducting the mock trial and what its goal is, the mock panel might exclude particular groups -- newspaper reporters come to mind -- and of course we try to get a demographic balance.  Other than that, if a mock juror is able to serve and qualified to be an actual juror,  we usually take the group we get, and always learn from it.

Q.  Six or twelve jurors better for wrongful death cases?

A.  You're not the only one to ask.  This question has been researched extensively.  Much of the work is collected in Prof. Neil Vidmar's article, "The Performance Of The American Civil Jury:  An Empirical Perspective," published in 1998 in the Arizona Law Review and on line at Duke's web site.  Some of the findings:

• "[R]esults suggest that smaller juries will, on average, produce larger awards."
• Small juries' verdicts are more "variable or dispersed."
• Large juries "will contain more members of minority groups, deliberate longer, and possibly recall trial testimony more accurately."
• "[L]arge juries are somewhat less likely to reach unanimous agreement on the verdict."
• "Social scientists, who have commented on the issue, appear unanimous in their opinions that larger juries are superior to smaller juries with respect to determinations of liability, guilt, and damages."

Q.  Do all state verdicts have to be unanimous?

A.  No.  It depends on the state, and on whether the trial is for a civil lawsuit, a felony, or a misdemeanor.  If you know those things, you can find the answer in the U.S. Department of Justice's massive State Court Organization report, a 7 MB monster that takes forever to download.  Once you get it, you'll have 47 charts covering everything from how much continuing education your state's judges need to what rights you lose when you're convicted of a felony in your state -- and, in Table 41, what verdicts need to be unanimous where.

Q.  Disqualification for jury duty in Texas?

A:  Hoping to get out of it, are you?  Back we go to the DOJ's State Court Organization report, this time to Tables 39 and 40.  In Texas, the chart says you're off the hook if you're an officer or an employee of the Senate, house of representatives, or any department commission, board, office, or other agency in the legislative branch of state government; if you're on active duty in the military; or if you're a student, a parent needing to care for children younger than 10, or a primary caretaker of an invalid person. 

Note:  I'm just reading the chart.  Get court permission before you decide not to show up.

Q.  How long jury deliberation process?

A.  Ah, the how-much-longer question.  Search no more; I got a wonderful note not long ago from Wisconsin Court of Appeals Judge Daniel Anderson, who shared with me the definitive answer.  He's an appellate judge now, he says, but back in the day,

I did enough jury trials to develop a guiding principle.  If a jury is out for more than 12 hours it will vote for the plaintiff, except in those cases where it votes for the defendant.

Q.  Do you believe that the jurors sometimes discuss impermissible issues in deliberations?

A.  No.  I believe that they almost always do. 

Mock jurors talk about things they're not supposed to all the time, and the Arizona Jury Project revealed that real jurors do too.  Profs. Neil Vidmar and Shari Diamond collected the evidence in their article "Jury Room Ruminations on Forbidden Topics," at 87 Va. L. Rev. 1857 (2001) and at Duke's web site.  Of the 40 civil juries whose deliberations were taped for the project, 34 talked about insurance and 33 talked about attorney fees, two classic off-limits topics.  Vidmar and Diamond caution that the juries were still highly functional:

[F]orbidden considerations were but a small part of the juries' focus of attention.  Even in cases in which juries discussed forbidden topics, they spent only a small portion of their time on these topics.  . .. [T]he juries invested most of their time and effort in actively sorting out competing claims and arriving at a plausible interpretation of the evidence presented at trial and in struggling to understand and apply the court's instructions on the law.

But do they talk about off-limits issues?  Almost without fail.

Sincerely,

Deliberations

(Photo by zoghal at http://www.flickr.com/photos/zoghal/350801206/; license details there.)

The Case For Curiosity: Shatz v. Ford Motor Company

The Fourth Circuit made the world a little safer last week for lawyers who, when handed an unexpected chance to learn how juries work, choose curiosity over ignorance. 

The case is Shatz v. Ford Motor Company, reported in today's National Law Journal.  Lawyers D. Alan Thomas and John Isaac Southerland of Huie, Fernambucq & Stewart had traveled from their Birmingham, Alabama home to defend Ford in a product liability case in the District of West Virginia before Judge Frederick Stamp.  They won the trial, and after the jury went home, "the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room." 

One man's trash

In the jury room, Thomas and Southerland found not only the trial exhibits, but a valuable cast-off:  "On an easel in the jury room in plain view was a flip chart reflecting the jurors’ views on the evidence presented in the case."  Thomas asked Southerland, who at the time was just finishing his first year of practice, to write down the jurors' notes.  Southerland sat down and started copying from the chart, writing away until someone told him they were closing the courtroom and he had to go. 

Back home in Birmingham, Thomas and Southerland presumably were still feeling very cheerful when they got an order from Judge Stamp.  The judge's law clerk had told him she had seen someone copying notes in the jury room, but didn't know who it was.  The order demanded answers and scheduled a hearing "to determine what action, if any, should be taken." 

"Violated the sanctity of the jury room"

Thomas and Southerland confessed, explained they had copied the notes “[o]ut of curiosity, for professional information, and for personal development purposes," and handed over Southerland's work.  None of this appeased Judge Stamp, who was mad, mad, mad:

[C]lear and convincing evidence shows that Mr. Thomas and Mr. Southerland have engaged in conduct that, from an objective standpoint, falls short of the obligations owed to the Court, to opposing counsel and to the jurors in this action. By failing in such obligations, Mr. Thomas and Mr. Southerland have required this Court to hold additional proceedings, have complicated the grounds for post-verdict motions, have violated the sanctity of the jury room and have interfered with this Court’s ability to achieve an orderly and expeditious disposition of this case, which necessarily continues through the time available for post-verdict motions.

Judge Stamp ruled that the copying indirectly violated the local rule against “communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication,” and that it somehow also was wrong under Federal Rule of Evidence 606(b), which says jurors can't testify to undermine a verdict.  He ordered Thomas and Southerland to pay over $14,000, representing the plaintiffs' attorney fees and expenses in having to file papers and appear at the hearing on all this.

"Nor are we aware of any authority"

Almost two years later, the Fourth Circuit says there was nothing wrong with what Thomas and Southerland did.  The local rule is designed to prevent harassment of jurors, the court explained, and here, "Not only was no juror contacted, but it is doubtful that any juror ever knew what transpired."  As for "the sanctity of the jury room":

We have found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room.

The National Law Journal asked Thomas what he would do if he had it to do over.  "In hindsight, I would ask the judge for permission," was his diplomatic answer.   In hindsight, looking at his two-year odyssey, you might instead try to write faster.

(Photo by Kazze at http://www.flickr.com/photos/kazze/289620863/; license details there.)

Best Of Deliberations: Are You Sleeping, Brother Juror?

Deliberations is on vacation.  This post first ran in February 2007.

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We know you didn't get any sleep the night before voir dire.  What about the jurors?

When lawyers think about voir dire, we think about jurors' past history.  Everything we read reminds us that a juror's past experience fundamentally shapes how he will hear and understand what we say.  If you represent an elderly woman who fell and was injured, a juror who cared for his frail mother for twelve years is going to respond differently than will a healthy young man who never knew his grandparents.

Ask about the past, yes, but don't forget the present.  History may help tell us how a juror might connect with your case, but the question whether she can connect at all has a lot more to do with what she did last night, and over the last week.  Consider:

• Fatigue.  Tired people don't think very well.  In a recent study, people who had stayed up all night and then looked at pictures remembered 19% fewer pictures than a well-rested control group did.
• Lack of caffeine.  Many people drink caffeine all day, and then find themselves in a jury box for hours with no coffee in sight.  A 2004 study concluded that "[o]ne of the most profound signs of caffeine withdrawal was impaired behavioral and cognitive performance, although memory was not affected."
• Too long between cigarettes.  In a 2003 study of nicotine withdrawal in pilots, "all tests recorded an impairment of cognitive functions during abstinence," leading the researchers to conclude:  "Abrupt cessation of smoking may be detrimental to flight safety."
• Hangover.  In case you needed a cite for this, researchers in 2003 concluded that "alcohol hangovers have a negative effect on cognitive functions."
• Low blood sugar.  Research has found "significantly more negative" performance on cognitive and emotional tests after blood sugar bottoms out.
• Hormones.  You won't want to hear me say this, but for many women, it matters when you're talking to them.  This study found, for example, that "both short-term and long-term memory for words (30-word learning task) and abstract figures (abstract visual learning task) were mildly impaired in the premenstrual phase."
• Depression.  A survey last week found that one in six Americans and Canadians had been diagnosed with depression -- that's diagnosed, not suffering from.  This study of the elderly found "a significant association between depression and reduced cognitive function."

Some of this you can ask about.  (Not the hormones, I know.)  Is there a baby in the house?  Does anyone work third shift, or two jobs?  Many jurors, when the judge asks what they do, will mention one of their jobs but not the other. 

You can be candid about caffeine and cigarettes:  You'll have to go a long time without them, and for some people that's hard.  Is anyone concerned about that?

Some of it you can't ask, but you'll hear about, if you listen.  A depressed juror, for example,  is likely to give you a few clues.

The rest you'll have to watch for.  This is the kind of thing that "Watch the jury" means:  who is tired?  Am I looking at the face of drugs or alcohol?  Who is distracted, or anxious?  Who just looks out of it?

(Photo by strph at http://www.flickr.com/photos/strph/129221597/)

 

Best Of Deliberations: Beauty And The Juror, Part II

Deliberations is on vacation.  This post first ran in March 2007.

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Yesterday we faced the ugly truth that jurors, because they're human, like attractive people better than plain people.  Today's post talks about some of the subtleties and complications of that truth, and about how we might deal with it in the courtroom.  Subtleties first:

1.  It's more complicated with women.  Especially when researchers are studying perceived competence (as in the Social Psychology Quarterly and Hamermesh/Parker teacher research discussed yesterday), the Marilyn Monroe pretty-but-dumb thing is real.  Both attractive men and attractive women are perceived as more competent, but men get a bigger boost from their looks than women do.  Likewise in Rice University research in 2002, attractive men were uniformly rated more suitable for hiring, but "female raters . . . were less likely to hire attractive women for jobs that were viewed as more male-oriented."

2.  When expectations aren't met, beware.  In the 2006 Rice University research I mentioned yesterday, researchers studied the perceived trustworthiness of attractive and less attractive people.  "Sender" volunteers sent money to "recipients," knowing the recipients would decide how much money to send back.  All either side had to go on was a picture of the other party.  The senders sent more money to the attractive recipients -- that is, they trusted them more -- but there was a catch.  Like the senders, the recipients expected attractive people to be more trustworthy and thus to share fairly.  Attractive senders who failed to meet that expectation were punished more harshly -- they got less money back -- than the cheap but homely senders. 

This makes sense for the courtroom as well.  Jurors are likely to remember and despise the grandly senatorial witness who disappoints, just as they are likely to remember with respect the Columbo look-alike who surprised them with his insight.

3.  The rules apply to everybody.  This isn't just about how jurors perceive witnesses and defendants.  A trial is a visual event, and everybody in the courtroom looks like something.  Think about:

• The lawyers.  Attractive lawyers make more money than plain ones, Hamermesh and Biddle have found, and you can safely presume that they're perceived as more competent.  Moreover, when lawyers are the ones doing the perceiving, they prefer conventional attractiveness as much as anybody else does.  In a Missouri case released last week where the state had struck black jurors from the panel, the state's proposed nonracial justification for one of the strikes was the juror's looks, and specifically her hair -- her "fluorescent," "like Ronald McDonald's" and "clown red" hair, the local paper reported.  (The conviction was reversed, but I'm guessing that many more weird-hair strikes go without appellate review.)
• The jurors.  This very morning brought this personal ad on Craig's List:

Cute Guy at Jury Duty This Morning - w4m - 39  Good looking guy, sitting two rows in front of me, wearing jeans, and a cotton button down, long sleeve shirt. We were on the Jay Street window side. You were getting up and walking around, and we had eye contact and few times. When I got up to take a phone call, and had to go the Jury lounge, you were called, cause when I got back, you were gone. Spent the rest of day in that room and you didn't come back.

Let's say he had come back, and these two ended up on the same jury.  Jury deliberations are a group process, and if some in the group are cute, it's a factor -- not that we can tell which way it cuts.  The Pew Research Center summarized 2006 Arizona State research as finding that "men performed better on tests of creativity after viewing photos of attractive women, imagining short-term liaisons or long-term relationships."  On the other hand, McMaster University researchers found in 2003 that when male students were shown pictures of pretty women, they made irrational financial decisions.  "Women, by contrast," the article reporting this recounts, "made equally rational decisions whether they had been shown pictures of handsome men or those of average attractiveness."  Hey, I just report the news.

What to do about it

I promised some actual advice on this topic.  Here it is.

1.  Get over it.  It's not fair that pretty people make a better impression, we know that, but this is no time to change the world.  You are responsible for a client's property, or liberty, or life.  Think about connecting with this jury, and you can head to the barricades when you're done.

2.  Don't flout it.  It's a corollary, but perhaps worth noting separately.  We all know people who look far less attractive than they could because they think it doesn't matter, or they think it shouldn't matter.  A courtroom isn't a very good place to test these theories.

3.  Remember "more than skin deep."  For the first half of the movie 10, Bo Derek was absolutely gorgeous.  Then her character spoke, and for the rest of the movie she looked almost ordinary.  In all these research studies, subjects saw pictures only -- not expressions, posture, kindness, or insight.  If you have a witness you think may be stereotyped because of the way he looks, there are ways to let the jury see the beauty of his character.   

4.  Put it in perspective.  Beauty isn't everything.  If it were, John Kerry and John Edwards would be president and vice president of the United States.  What these research studies suggest that attractiveness is important when all other things are equal. 

All other things are not equal.  There is race, and pretrial publicity, and the quality of your presentation, and the experience of your jurors, and the complexity of your facts, and the community you live in, and the luck of the draw -- and then there is the strength of your case, by far the most important factor in the jury's decision.  "[B]iasing factors (e.g., pretrial publicity) have been found to have little to no impact when [strength of evidence] is weak or very strong," conclude the authors of the comprehensive literature review Jury Decision Making:  45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000).  There's a beauty in that.

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Updates: 

1. Eric Turkewitz demonstrates one way to work with attractive opposing witnesses, using the disappointed expectations principle, at New York Personal Injury Law Blog today.  "The answer is not to knock them down, but to build them up," he advises, so that you create expectations the witness cannot meet.
2. Bill Tyroler points out, in the comments here, that there were serious discussions of legal challenges to "lookism" recently, after a DePauw University sorority purged its nonbeautiful members.  "How would a challenge to 'lookism' work in the courtroom?" he asks.  "Yikes."

(Image by John Goodridge at http://flickr.com/photos/badjonni/434871340/; license details there.)

Best Of Deliberations: Beauty And The Juror, Part I

Deliberations is on vacation.  This post first ran in March 2007.

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"Stop browbeating her!  Can't you see she is sexy?" 

At our house, we're watching the DVD of The Pink Panther (the one with Steve Martin as Inspector Clouseau, not the one with Peter Sellers) a lot lately, and we crack up at that line.  The reason it's funny, of course -- besides Martin's Pepé le Pew accent -- is that Clouseau says out loud what everybody else thinks but would never say.  When British researchers announced on Thursday that jurors are more lenient with attractive defendants than they are with plain ones, Clouseau would have said something like, "But of course."

The researchers gave volunteer "jurors" identical facts describing a mugging, but showed them photographs of different people -- some attractive, some not -- as the supposed defendant.  Attractive defendants were less likely to be judged guilty.  The researchers weren't surprised.  "Our findings confirm previous research on the effects of defendant characteristics, such as physical attractiveness, on the deliberations of jurors," said Dr. Sandie Taylor, who was in charge. 

Is it true blondes have more fun?

She's right, and it isn't just jurors.  Your lifelong suspicion that beautiful people get more breaks in the world is supported by stacks of scholarly research.  Here is just the first paragraph of a 2003 paper by Comila Shahani-Denning, an associate professor of psychology at Hoftstra, reviewing some of the literature:

The bias in favor of physically attractive people is robust, with attractive people being perceived as more sociable, happier and more successful than unattractive people (Dion, Berscheid & Walster, 1972; Eagly, Ashmore, Makhijani & Longo, 1991; Hatfield & Sprecher, 1986; Watkins & Johnston, 2000).  Attractiveness biases have been demonstrated in such different areas as teacher judgments of students (Clifford & Walster, 1973), voter preferences for political candidates (Efran & Patterson, 1974) and jury judgments in simulated trials (Efran, 1974).  Recently, Smith, McIntosh and Bazzini (1999) investigated the “beauty is goodness” stereotype in U.S. films and found that attractive characters were portrayed more favorably  than unattractive characters on  multiple dimensions across a random sample drawn from five decades of topgrossing films.  The authors also found  that participants watching a biased film (level of beauty and gender stereotyping) subsequently showed greater favoritism toward an attractive graduate school candidate than participants watching a less biased film.  In the area of employment decision making, attractiveness also influences interviewers’ judgments of job applicants (Watkins & Johnston, 2000).

I know it's hard to accept the unfairness of this, so you might need more.  Some examples from a few scratch-the-surface Google searches suggest that attractive people are more likely to be perceived as:

• Good.  We can accurately judge attractiveness in as little as .013 seconds, and we associate it strongly with good qualities, according to research last year by Ingrid Olson at Pennsylvania.
• Worth higher pay.  "[P]lain people earn less than people of average looks, who earn less than the good-looking. The penalty for plainness is 5 to 10 percent, slightly larger than the premium for beauty."  That's from the abstract of "Beauty and the Labor Market," a 1993 paper by Daniel Hamermesh and Jeff Biddle. 
• Competent.  "[A]ttractive people were perceived as more competent than less attractive people" in research published by the Social Psychology Quarterly in 1995.  "Attractiveness effects were stronger for males than for females" in the study; I'll get to that tomorrow.
• Competent again.  Students rate good-looking instructors as better teachers, Hamermesh and Amy Parker found in a 2003 paper.  (They noted that since the instructors in question were real people, the experiment couldn't determine whether they really were better.)  Again, good-looking men had a bigger advantage than good-looking women did.
• Trustworthy.  In a study last year at Rice University, subjects were more likely to trust attractive people than unattractive people.

And while it's easy to blame the media for all this bias, it may be as likely that the bias shapes the media.  In research by Professor Judith Langlois at University of Texas at Austin, babies as young as three months old showed, in their baby ways, that they'd rather have an attractive caregiver.

Tomorrow's post will have some thoughts on what to make of all this. 

(Drawing by Alan at http://flickr.com/photos/goo/225456736/; license details there.)

Best Of Deliberations: Context Is All: Tapping, Teletubbies, and The Curse of Knowledge

Deliberations is on vacation.  This post first ran in February 2007.

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You hold a mock trial in a complex case.  You present your evidence with all possible clarity.  The jurors miss more than half of it.  What happened? 

They're not dumb, and you're not inarticulate.  You just demonstrated a basic principle of communication:  clarity without context is mud.

What did you say, honey?

To grasp this, think about talking to little kids.  Before I had one, I could never figure out what little kids were saying.  I was always asking them to repeat, and then would pretend I got it rather than ask again.  I figured kids just didn't speak clearly.

When my daughter started talking, I realized I had been wrong.  She spoke with perfect clarity.  I always understood her, and suddenly I understood other people's kids as well.  But other childless adults were still baffled.  They still bent forward with blank faces, just as I had done before. 

The gap was revealed:  it wasn't clarity, it was context.  My daughter was saying, perfectly clearly, the names of Tinky Winky, Dipsy, La-La, and Po -- the characters in Teletubbies, the kids' TV show that fascinated her at that time.  The problem was not that she was saying it wrong; it was that her poor adult listener had never heard of Tinky Winky, didn't know there was such a thing as Tinky Winky or the Teletubbies show or that she might be talking about television at all. 

Made To Stick and "the curse of knowledge"

In trial, lawyers are the incomprehensible little kids, and jurors are the baffled adults.  You explain exactly how the defendant pumped up its financial statements by using unreasonable assumptions for the useful life of its equipment in calculating depreciation.  You even try to explain what depreciation is, how it corresponds to familiar concepts, why it's an expense even though no cash changes hands, and so on.  But you've been working on this case for months, and you've spent the last several days talking to hardly anyone but your expert.  You have forgotten how much you know, and how much the jurors don't yet know.  You don't give them enough context. 

In their new book Made To Stick, which has lessons for trial lawyers on almost every page, authors Chip and Dan Heath give this problem a name:  The Curse Of Knowledge.  They describe a 1990 study in which people were asked to "tap out" familiar songs by knocking on a table, and listeners were assigned to try to guess the song.  The tappers thought their listeners would guess right about half the time; in fact, the listeners got only one song right out of every 40.  (The Heaths demonstrated this experiment in an NPR interview last week; they tapped out "The Star Spangled Banner."  I could have sworn it was "Happy Birthday.")  The tappers "are flabbergasted," the Heaths explain, but it's natural:

The problem is that tappers have been given knowledge (the song title) that makes it impossible for them to imagine what it's like to lack that knowledge.  When they're tapping, they can't imagine what it's like for the listeners to hear isolated taps rather than a song.  This is the Curse of Knowledge.  Once we know something, we find it hard to imagine what it was like not to know it.  The knowledge has "cursed" us.  And it becomes difficult for us to share our knowledge with others, because we can't easily re-create our listeners' state of mind.

It's a curse trial lawyers know well.  We're luckier than some, though, because at any given time, we've recently had to learn a lot.  For each new case, we have to learn a new body of knowledge.  The key at trial is remembering what helped you learn that knowledge, so you can pass it on.

(Teletubbies photo by sara at http://www.flickr.com/photo_zoom.gne?id=103466903&size=m; license details there.  Book jacket image used by permission.)

Best Of Deliberations: The Bias In The Mirror

Deliberations is on vacation.  Here's a post that first appeared in March 2007:

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It may be "axiomatic that the purpose of voir dire is to ensure . . . an impartial jury."   So said the Seventh Circuit in U.S. v. McAnderson in 1990 -- and so say dozens of others, if you Google "purpose of voir dire."  But as axioms go, this one is troublesome.  Its echoes have confused many lawyers as they prepared to select a jury for the first time.

The "purpose is to eradicate bias" axiom leads lawyers to believe and spread two myths about jury selection.  Myth No. 1 is that bias in its pure form is what shapes jurors' decisions.  Myth No. 2 is that if you ask the right questions, "ferreting out" juror bias is always possible.  Experience teaches that both these beliefs are wrong, as I've started to discuss here and here.  (And why do we always say "ferret out"?  If you Google that with "voir dire," you get 622 hits.) 

An axiom we can use

Here's a more useful axiom.  One critical purpose of voir dire is to ferret out bias, yes:  your own.  (Try Googling that.  Not a word.)  Lawyers stereotype potential jurors at least as vigorously, and at least as predictably, as jurors are ever likely to stereotype us or our clients. 

Try this quiz with two people I heard about on two different radio programs this week.  I didn't change the facts, although I made up a few consistent details.  Pretend you have these two women in the jury box:

1.  Amy J.  Ms. J. is about 40 years old, married, and a homemaker.  She lives in a middle-class suburb of a Pacific Northwest city.  Her primary outside activities, and those of her husband, revolve around the Christian church they attend.  They are longtime members of the church, and she is the director of youth education there.  She has a bright, happy voice.

2.  Kathy B.  Ms. B. is about 60 years old, married with adult children.  She works as a school janitor in a Wisconsin town beyond the Milwaukee suburbs.  She has a low, slightly dull voice, and her speech includes noticeably long pauses.  After one of these pauses, she says she doesn't know how to put the answer to your question into words.  Her work hours are from 3:00 in the afternoon to 11:30 at night.  It is physical work, sweeping, vacuuming and cleaning desks and shelves.  During a recent construction project, she mentions, she was "eating a lot of dust from the drywall."

Got it?  What might you conclude about these women's personalities and reactions? 

Are either or both social conservatives?  Why?

Would either of them tend toward a resentful, negative attitude?  Why?

How would either of them react to issues of class and rank?  Why?

What degree of leadership would either of them show in a group?  Why?

Answers to the quiz

If you asked which Christian church Ms. J. belongs to, you were on the right track toward unearthing your own stereotypes.  It's the United Church of Christ:  her church's mission statement stresses "diversity, caring, humility and acceptance."  Ms. J. and her husband teach a class to 14- and 15-year-olds called "Faith and Sexuality," where they detail the symptoms of sexually transmitted diseases and show the kids different kinds of condoms.  "We've covered [sex] so thoroughly" by the time they're done, she says, "that it's not such a forbidden fruit."  She's probably as liberal as your teenage neighbor with the nose ring, as Wednesday's NPR story on sex education in churches makes clear.

As for Ms. B., the school custodian, she loves her life and everyone in it.  She was on Wisconsin Public Radio, and in her local paper, because she has just been named outstanding custodial employee at her school.  "When I've got a vacuum cleaner in my hand, don't even try bothering me," she told the paper.  "I'm at home."  On the radio, she explained, "I'm very much relaxed and I love what I'm doing."  Asked why she liked her work so much, she paused so long the radio host asked if she was still there.  "You get to see a lot of projects that the students are doing, " she said finally.  "You get to meet a lot of great teachers, and you get to see a side of life that students and nobody gets to see."  The conviction and calm in her flat voice were striking.  She'd be a force on any jury.

(Photo by Amanda Kelso at http://www.flickr.com/photos/mandydale/264712804/.  License details there.)

Juror Art Spoils Rape Conviction?

It couldn't happen here, could it?  The London Daily Mail reports:

A convicted rapist was freed from jail after it was discovered a juror had been doodling during his week-long trial.

The juror made two sketches of the judge while he should have been concentrating on the evidence.

As the proud curator of the American Gallery of Juror Art, I'm struggling with this story.  Jurors can't doodle?  What about counting the tiles on the ceiling, tracking the number of times defense counsel wears the same shoes, checking the second hand of the courtroom clock against their watches, planning their holiday outfits?  Jurors are bored, bored, bored, and if we're going to start overturning verdicts because a juror's attention wandered, we really ought to shut down the prisons right now. 

It had to be the underwear

So I've decided not to believe it was the juror's sketches that botched this conviction.  I've decided the final straw was the jury's experiments with women's underwear.  In England, they're called knickers:

The trial hinged on the victim's pink knickers which were torn in three places, and formed a major exhibit in the case.

It was [when the defendant was to be sentenced] that the judge revealed that a juror had asked an usher at the end of the trial on Friday to dispose of a pack of women's pants.

The judge said: "They bought a pack of five knickers.

"One is torn. They had been trying the strength of knickers and comparing them with knickers in this case.

"The juror said they had been conscientious, but they decided the case on evidence not before the court."

Juror artists, keep drawing.  You're doing great work.

(Image by Ben Britten at http://www.flickr.com/photos/tauntingpanda/731940008/; license details there.)

The Peremptory Strike As Broom And Dustpan

There was a time when courts treated the peremptory strike like fans treat a football star.  These days it's more like the guy who sweeps up the stadium after the game. 

Yesterday's Dorsey v. Quarterman, a habeas opinion from the Fifth Circuit flagged on the Decision of the Day blog, is an example.  At Dorsey's Texas death penalty trial, his lawyer moved to strike four potential jurors for cause because of their views on the death penalty.  One juror "initially indicated a bias in favor of the death penalty, saying that he would automatically assess the death penalty after a verdict of guilty," but after the trial court explained the law, he agreed that he could follow it.  The other three jurors said they would not consider Dorsey's youth as a mitigating factor in sentencing.

The Fifth Circuit denied the required "certificate of appeal" on this issue, listing familiar reasons:  the trial judge was in the best position to judge the first juror's sincerity, and the decision on the other three jurors had not been raised on direct appeal.  And there was another reason.  Dorsey's lawyer had used his peremptory strikes to remove these jurors from the panel -- so, essentially, no harm done:

In addition, Dorsey used peremptory challenges to remove the four venire persons from the jury. Accordingly, even if the court erred in denying his challenges for cause, there was no constitutional violation because the jurors were removed from the jury by his use of peremptory challenges and he has not alleged that the jury that sat in his capital murder trial was not impartial. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). 

It's true:  1988's Ross v. Oklahoma does hold that there is "nothing arbitrary or irrational" about "the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause."  The requirement simply "subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury," the Ross court said.

When peremptory strikes ruled the Earth

It wasn't always this way.   In Swain v. Alabama in 1965, the Supreme Court lauded the peremptory challenge, tracing its historic roots back to something called the Ordinance for Inquests in 1305.  The court explained: 

The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way the peremptory satisfies the rule that "to perform its high function in the best way, 'justice must satisfy the appearance of justice.'"

The problem with that deference to peremptory strikes, though, is apparent in Swain's holding:  it's the case that said it was fine for prosecutors to strike black jurors, and it was overruled in Batson v. Kentucky.  The Batson court said nice things about the peremptory challenge, but demoted it all the same:

While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice.

How's it going?

From the moment of the Batson opinion itself, some were predicting that the balance it struck would not work.  Justice Marshall, concurring, was ready to get rid of peremptory strikes altogether:  "The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system."  In 2005's Miller-El v. Dretke, Justice Breyer's concurrence repeated that call:  "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole."

Looking at how Batson plays out today, it's easy to understand the temptation of a baby-and-bathwater solution to the interwoven problems of biased challenges and biased jurors.  The race-neutral justifications Batson requires for peremptory strikes are often themselves racially charged.  We're heading inevitably for a line of cases asking whether different ethnic backgrounds, religion, disability, and sexual orientation are acceptable grounds for peremptory strikes.  Defense lawyers like Scott Greenfield agree that prosecutors shouldn't be allowed racial strikes but wonder why, with so much of the system aligned against them, defendants can't do it.  And then a case like Dorsey reminds us that we're supposed to use peremptory strikes to correct judges' errors and doom clients' appeals. 

Not too soon for many jurors

If peremptory strikes do disappear altogether, it will be good news to many jurors, who often can't understand why lawyers get to pick and choose at all.  I got a note recently from a reader that echoes many juror blogs I've seen:

A jury of peers? No way. If an engineer or a tech company is being sued, no engineer will be chosen for the jury. If a doctor is being sued, no health care professional will ever see the inside of that jury room. If a person knows anything about or understands the issues being litigated, they are automatically considered 'tainted' and unsuitable for a jury. . . I understand excluding potential jurors who personally know the parties, or who have any other clear conflict. But to exclude someone who followed the story in the media? Where does that compute? . . . When jurors are picked at random, and questioned only about their conflicts with the case at hand[, I will] answer a summons with pleasure.

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State law note:  Some states still place more value on the peremptory challenge.  Robert Kelley's Florida Jury Selection Blog recently detailed this aspect of Florida's May opinion in Kopsho v. State.

(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/109196638/; license details there.)